source: Caselaw Access Project

author:
Hogeboom, J.
      Davies, J.

license: Public Domain

text:
    Charles H. Frost v. Valentine Koon and others.
    A statement as to the origin of the debt, in a confession of judgment as follows: “ 1852, 1st December, money lent by the plaintiff to the defendant to aid in purchasing lot in Forty-seventh .street, New York, to the amount of $200. 1853, 1st August, a balance was due to the plaintiff by defendant, on the purchase of Eighth Avenue lot, to $800. 1854, 1st May, money was lent by plaintiff to defendant to aid in purchasing lots on Ninth avenue, to $300. And cash was lent by plaintiff to defendant at different times since above, to $175—$1,475, which sum of $1,475 is now due by the defendant to the plaintiff, the interest on said sums having been paid till the date hereof.” Held, to be sufficiently minute; unless it was in regard to the last item, which related to cash lent; and that as to that, it could also he supported within the spirit of the decisions. But if not, that the insufficiency of that item could not have the effect of destroying the whole judgment.
    Where a prior incumbrancer by judgment, on being made a party to a foreclosure suit, under an allegation in the complaint, charging him as having an interest in the premises subsequent to the mortgage, makes no defense to the foreclosure, hut allows judgment to be taken against him by default, and the surplus moneys to be distributed to other claimants, this is not equivalent to an admission by him upon the record, that he has no lien upon the premises older than, or superior to that of the mortgage, so as to be an absolute estoppel upon him (or a purchaser under his judgment), in another action brought by a different plaintiff for the foreclosure of a distinct and prior mortgage, and prevent him from asserting in the latter suit a legal priority to the surplus moneys to which he is .apparently entitled by virtue of his judgment; the parties to the record not being the same, nor the subject of controversy identical.
    Nor will such incumbrancer (or his assignee), he estopped from claiming the surplus moneys in the second foreclosure suit, by bis standing by at the Sale in that suit, and suffering the property to be sold to another person, under a public announcement by the sheriff, that there areno other liens upon the premises than those stated (among which that of the judgment under which such incumbrancer claims is not included); where the purchaser is fully apprised of such incumbrancer’s 'rights, and that they will he insisted on.
    Where a judgment creditor of a mortgagor releases from the operation of his judgment, certain premises which are bound thereby, this should not prejudice him (or his assignee), in a contest inspecting the surplus moneys arising from a sale of mortgaged premises in a foreclosure suit, beyond the proportionate pj,rt of the judgment which the released premises; in connection with the mortgagor's other real estate, ought to pay. •
    Where a purchaser claims surplus moneys in a foreclosure suit, on the ground that a prior judgment upon which the mortgaged premises were sold, was not a valid lien upon the lands, and it appears that he did not interfere to prevent the sale by injunction, or the consummation of the title by deed, or the delivery of possession thereunder to the purchaser at the sale under the judgment,"he will be held to have been guilty of so much laches in the assertion of his rights, that he ought not to be permitted to enforce them against such surplus" moneys.
    This is an appeal, by the executors of Thomas Southard, originally one of the defendants, from an order of the supreme court, in the first district, disposing of certain surplus moneys in this action arising upon the foreclosure of a mortgage and a sale of the mortgaged premises, and awarding said surplus moneys to the defendant Koon, as between him and Thomas Southard, who were rival claimants thereof.
    The facts of the case are as follows: The surplus in controversy arose upon a foreclosure of a mortgage given by Robert Gilmore to one Andrew Quaclcenbush, bn the 20th May, 1854, for $1,250, upon a lot on the Eighth avenue, in the city of New York, and subsequently assigned to Frost, and foreclosed by him in this action. The-property was sold under the judgment of foreclosure, on the 6th of May, 1859, and was purchased by Valentine Koon, the present respondent, for $5,925. After paying prior liens and the costs of foreclosure, there remained a surplus of $2,191.86, which is.claimed by Koon and Thomas Southard. In the supreme court it was awarded to Koon, and Southard having died pending the proceedings, his executors appealed to this court.
    Both parties claim through Gilmore, who was the owner of the premises in 1854 and subsequently thereto. The claim of Koon to the surplus rests upon the following facts: Gilmore, being the owner of the lot on Eighth avenue and other property, and indebted to one John Van Wagner, confessed to him a judgment for $1,475, which was filed and docketed in New York on-the 29th day of December, 1854. An execution on the judgment was issued to.the sheriff of New York on the 30th of March, 1857, and under it the lot on the’Eighth avenue was advertised' and sold on the 18th of June, 1857: and on that sale Koon became the purchaser for $1,700. He received the usual certificate of sale, and at the expiration of fifteen months, and on the 14th of September, 1858, the sheriff conveyed to him the property, and he went into possession. This lot was at the time' of sale encumbered by a prior mortgage of $2,000, dated 13th of May, 1854, to Garret Myer; and the one .of $1,250, before mentioned, to Quackenbush, assigned to the plaintiff, iqoon which was the foreclosure on which the surplus in controversy arises. Kooii, therefore, claimed under the lien of a judgment docketed on the 29th day of December, 1854. •
    The claim of Southard rests upon the following facts: Gnthe 4th of May, 1855, Gilmore gave to one George W. Platt, a mortgage upon the Eighth avenue lot to secure the payment of $700, and on the 29th day of May, 1855, he gave to Southard a mortgage upon the same premises for $1,200. In March, 1856, Platt commenced a suit for the foreclosure of his mortgage, in which suit Southard and John Van Wagner were made defendants; and the complaint alleged that they had an interest in the premises,' which had accrued subsequent to the lien of the Platt mortgage. In this suit Southard and Van Wagner-made no defence, and Van Wagner consented .that the usual order of foreclosure and sale should be entered, and the usual judgment of foreclosure was entered, and the premises sold under it, subject to the aforesaid- mortgages to Myer and Quackenbush, to Southard on the 21st of October, 1856, and a conveyance made by the sheriff of the premises to him on or before the 3d day of December, 1856. At this sale Van Wagner was present and bid, but-gave no notice of any claim or incumbrance owned by him. The sheriff sold the property under the announcement that it was subject to the Myer and Quackenbush mortgages only. Southard paid the ten per cent required in cash, at the time of the sale, in ignorance of the Van Wagner judgment, but was apprised of that judgment and of the claim under it, before he paid the residue of the purchase money and completed his purchase, and took his deed; He went into possession in the spring of 1857. On this-sale a surplus of $1,054 arose, which was applied on the bond and mortgage which Gilmore had «given to Southard on the same premises on the 29th of May, 1855, to secure $1,200. Southard, therefore, claimed under a lien (that of Platt’s mortgage), dating back to May 4, 1855, some four months subsequent to the date of the Van Wagner judgment under which Koon claimed.
    As against the right of Kopn, it is alleged by the executors of Southard, that the judgment in favor of Van Wagner, under which he purchased the equity of redemption, was void for a defective statement in the confession of the judgment which renders all proceedings under it invalid. This judgment was entered on the 29th of December, 1854 (and, if available from' date, is prior to any right or lien of Southard), and was founded upon the following statement as to.the origin of the debt: “1852, 1st December, money lent by the plaintiff to the defendant, to aid in purchasing lot in Forty-seventh street, New York, to the amount of $200; 1853, 1st August, a balance was due to the plaintiff by the defendant on the purchase of Eighth avenue lot to $800; 1854, 1st May, money was lent by the plaintiff to the defendant to aid in purchasing lots on Ninth avenue to $300; and cash was lent by the plaintiff to the defendant at different times since above to $175—$1,475, which sum of $1,475 is now due by the defendant to the plaintiff— the interest on said sums having been paid till the date hereof.”
    When the above judgment was entered up, Gilmore was the owner of three lots on the Ninth avenue, subject to various prior incumbrances, upon which Van Wagner’s judgment was a lien, as well as upon the Eighth avenue lot, such prior incumbrances being five several mortgages, amounting, in the aggregate, to $7,000. On the Ninth avenue lots Platt also had a mortgage for $1,500, dated on the 13th and on the 14th of July, 1855, and in March, 1856, Platt commenced to foreclose it. Neither Southard nor Van Wagner were made parties to this foreclosure. A judgment was subsequently rendered and the Ninth avenue lots sold on the 21st of October, 1856, to Platt for $4,400, and on that sale there was a surplus of $2,267i53, which was paid into court. A reference was had as to this surplus, and Van Wagner, although not a party to the suit, set up a claim to the surplus, under his judgment, but his claim was rejected on the ground that the judgment being prior to the mortgage foreclosed, was not affected by the foreclosure, and was not a lien on the surplus.
    On the 3d day of March, 1857, Van Wagner gave to Platt a general release of the Ninth avenue lots which was recorded on the 6th of May, 1857. At this time Van Wagner was aware that the Eighth avenue property was subject to the .before-mentioned mortgages to Myer of $2,000; to Quackenbush for $1,250; and to another mortgage to Southard, of the 29th May, 1855, for $1,200; for they are all recited in a mortgage executed by Gilmore to himself on the same (Eighth avenue) premises, for $2,500,. dated on the 7th of June, 1855. On this property there was a surplus of $1,054.32, on the sale under Platt’s mortgage, which was made subject to the mortgages of Myer and Quackenbush—a sum insufficient to pay the entire amount of the Southard mortgage. The sale of the Ninth avenue property (which was had at the same time as that of the Eighth avenue) under Platt’s mortgage, was also made in the presence of Van Wagner. Platt became the purchaser at the price of $4,400, subject to the five mortgages for $7,000 above mentioned, yielding a surplus of $2,267.53, being more than sufficient to pay the Van Wagner judgment. Southard also claims that there is evidence tending to show that the Van Wagner judgment was paid and satisfied, but as the referee has reported against him on the question of fact on that point, it is not deemed necessary to recapitulate the facts bearing on that part of the case. Upon these facts it was claimed, on the part of Southard, that he having become the purchaser of the Eighth avenue lot in 1856, perfected by deed on the 5th of May,1 1857,-under the Platt foreclosure, was so situated that he had the equitable right to compel the payment of the Van Wagner judgment out of the Ninth avenue property, and that this objection was properly urged on the reference as to the surplus as against the right of Koon, although no exception was taken at the time to the proceedings of Van Wagner for the" sale of the Eighth avenue lot on the judgment under which Koon purchased for $1,700, on the 13th of June, 1857, and for which he received a deed on the 14th of September, 1858. Southard also claimed that Van Wagner (and Koon as claiming through him), having been a party to Platt’s foreclosure of his Eighth avenue mortgage, was estopped to claim these surplus moneys, by not having controverted the allegation in Platt’s complaint that Van Wagner’s incumbrance was subordinate to Platt’s, and by having attended the sale under that foreclosure, and not having given notice of his claim when the sheriff announced there were no other incumbrances than those of Myer and Quackenbush, was estopped from claiming under Ms judgment at all. Southard further claimed that the Van Wagner judgment was satisfied and paid.
    The foregoing are the leading facts upon which the question arises. Others, material to notice, are referred to in the opinions. .
    The referee, in the first instance, made a report in which he decided that Koon was not entitled to the surplus, for the reason that the Van Wagner judgment was void for a defective statement on confession. Upon this report an order was made, at special term, awarding the surplus to the executors of Southard. Koon appealed, and the general term reversed the order, and set aside the report, and referred the matter back to the referee, holding also that the referee erred in supposing he had a right to inquire into the validity of the Van Wagner judgment in this collateral way; further holding that neither of the parties were bona fide purchasers, and that even if a"part of the judgment was discharged by the release of the Ninth avenue property, the whole was not.
    The referee made a second report, awarding Koon the money. He held that the evidence showed that Koon knew before his purchase, either by information from Van Wagner, or otherwise, of Southard’s $1,200 mortgage—of his purchase of the Eighth avenue premises—of his possession under such purchase, and of his denial of the validity of the Van Wagner judgment; but that Koon and Southard each had knowledge of the facts constituting the title of the other; and that neither, though a purchaser for value paid at the time of the purchase, was in the sense of the law a bona fide purchaser without notice, nor entitled to the peculiar rights incident to persons in that situation. He further held that the Vau Wagner judgment was not paid; that Van Wagner was not estopped by the foreclosure of Platt’s mortgage from claiming .under his judgment, inasmuch as he was a prior incumbrancer, and not, as charged in Platt’s complaint, a subsequent incumbrancer; and inasmuch, also, as there was not any specific reference to his judgment in the pleadings or judgment entered upon the foreclosure; nor was he cut off by his release of the Ninth avenue property, farther than as to the proportional part of that judgment which the Ninth avenue property should have borne.
    To this report the executors of Southard excepted. The case was heard at special .term, and the report confirmed, and the order there made affirmed at the general term; the court holding that whatever might have been the equitable rule in regard to the effect of Van Wagner’s release of the Ninth avenue premises, Southard had slept upon his rights, had permitted without objection, a sale of the Eighth avenue premises upon the Van Wagner execution, and suffered, without interference on his part, the purchaser at. the sheriff’s sale to obtain his deed, and afterwards possession under it, to his own exclusion from the property; that after suffering himself to be thus dispossessed, he could not maintain an action of ejectment to recover possession, nor obtain relief, by motion, nor in a court of equity, as that court would on the facts found by the referee, consider him concluded by his own silence and neglect, from any relief. That his rights could not be regarded as superior on a claim to the surplus moneys to those which would have been presented in an action at law or in equity, and he must be treated as confessing the superior rights of Koon claiming under another and an adverse title. From the order of affirmance, Southard’s executors appealed to' this court.

      Thomas Nelson, for Southard’s executors (appellants).

      John H. Reynolds, for Koon (respondent).
   Hogeboom, J.

The controversy in this case is in regard to the surplus moneys arising upon the foreclosure of a mortgage, and the conflicting claimants are Valentine Koon and Thomas Southard. The mortgage foreclosed is one for $1,250, executed by Robert Gilmore to Andrew Quackonbush, and subsequently assigned to the plaintiff Frost, upon premises situated on the Eighth avenue, in the city of New York. This mortgage was executed on the 20th day of May, 1854, and the premises were sold under it on the 6th day of May, 1859, and Koon became the purchaser.

Koon claimed the surplus moneys as having title to the premises at and previous to the time of the mortgage sale, under a sheriff’s deed executed to him on the 14th day of September, 1858, as the purchaser at a sheriff’s sale, made to him on the 13th day of June, 1857, upon a judgment by confession, given on the 29th day of December, 1854, by Robert Gilmore, the then owner of the premises, to John Van Wagner. The lien, therefore, under which Koon claims title to the surplus moneys dates back to the 29th day of December, 1854.

Southard claimed the surplus moneys as a mortgagee of. the same premises under a mortgage from Robert Gilmore to him, executed on the 29th day of May, 1855; also, as a purchaser of the same premises on the 21st day of October, 1856, upon a mortgage foreclosure thereof, under a mortgage executed by Gilmore to George W. Platt on the 4th day of May, 1855. On this sale certain surplus moneys arose, a portion of which was paid to Southard as a subsequent mortgagee, but not enough to extinguish his claim as such. The lien, therefore, under which Southard and his executors claim title to the surplus moneys dates back to the 4th,]day of May, 1855—the date of the Platt mortgage.

This, it will be seen, is some four months subsequent to the lien of the. Van Wagner judgment under which Koon claims; and, if there were no other circumstances in the case, would show a manifest priority of title on the part of Koon to the fund in controversy. This apparent priority is attempted to be overthrown by Southard in several ways.

1. It is contended that the Van Wagner judgment is invalid as against subsequent encumbrances on the property, by reason of a radically' defective statement in the confession of judgment.

2. It is contended that Van Wagner and Koon are estopped from setting up any title to the surplus moneys by having been made parties to the foreclosure of the Platt mortgage under an allegation in the complaint which charged them as having or claiming an interest in the .premises subsequent to that of the mortgage, making no defence to such foreclosure, and allowing judgment to be taken against them by default, and the surplus moneys to be distributed to other claimants; which is claimed to be equivalent to an admission by them upon the record that they had no lien upon said premises older or superior to that of the Platt mortgage.

3. It is contended that Koon’s assignor, Van Wagner, (and consequently Koon), is further estopped from, making such claim by Van Wagner’s standing by at the sale under the Platt mortgage, and suffering the property to be sold at public auction and Southard to become the purchaser under a public announcement by the sheriff that there were no other liens upon the premises than those there stated (among which that of the Van Wagner judgment was not included.)

4. It is contended that Van Wagner—and if he, then Koon also—is precluded from making any claim to the surplus moneys, by reason of releasing from the operation of his judgment certain other premises situated oh the Ninth avenue, which were bound thereby; also belonging to Gilmore, and sold under certain mortgages thereon, the surplus ■ moneys upon which were properly • applicable to the payment of this judgment; and, if applied thereto, would have left this fund arising from the sale of the Eighth, avenue premises wholly applicable to Southard’s claim.

5. It is contended that the Van Wagner judgment was. paid and satisfied, and therefore not entitled to participate in the distribution of the surplus moneys. This last proposition it is unnecessary to discuss, as the referee who heard this cause has decided the question of fact arising thereon against Southard, upon sufficient evidence to justify his conclusion.

1. The Van Wagner judgment was not void. In conformity with repeated decisions of this court, it must be held that the specifications in the statement on which the judgment was founded were sufficiently minute, unless it be that relating to cash lent, and in regard to that, the statement is in substance that Gilmore was indebted to Van Wagner for cash lent at different times between the 1st of May, 1854, and the 29th of December, 1854, to the amount, in the aggregate, of $175. I am inclined to think this also can be supported within the spirit of the decisions above referred to. If not, it can not have the effect of destroying the whole judgment; at most it can be invalidated only to the extent of $175.

2. It is possible that as against the mortgage of Platt on the Eighth avenue property, and in the suit for the foreclosure of that mortgage, and as to the surplus moneys thence arising, Van Wagner (and Koon as his assignee) would be estopped by the proceedings in that suit from asserting any title to the surplus moneys, as against Platt or Southard. But I do not think this fact, however admissible in evidence, would be an absoulute estoppel as between Koon and Southard in another action, by Frost, for the foreclosure of a distinct and prior mortgage to Quackenbush, preventing him from asserting a legal priority to the surplus moneys to which he was apparently entitled. The parties to the record were not the same, nor the subject of controversy identical. As an estoppel by record, therefore, it fails; and as an estoppel in pais it is not conclusive, because there was no act done or omitted by Van Wagner which was intended to operate upon or did operate upon Southard; nor was Southard thereby induced to make any purchase or forego any rights which he would otherwise have insisted on; nor would the latter be legally prejudiced • by having the truth now enforced.

3. The same remarks apply to the estoppel supposed to arise from Van Wagner’s silence at the sale of the Eighth avenue property under Platt’s .mortgage. Southard lost no rights upon that occasion by the silence of Van Wagner, which he would now be prevented from enforcing, if Van Wagner’s judgment were permitted to be collected; and besides, Southard was fully apprised of Van Wagner’s legal rights, and that they would be insisted on, before he completed his purchase.

I am, therefore, of opinion that Koon is not estopped by any proceedings or conduct of his assignor, Van Wagner, from asserting his claim to these surplus moneys.

4. The only serious question arises upon the legal effect of the release by Van Wagner of the Ninth avenue premises from the operation of his judgment. There is some reason for saying, with the referee, that if improperly released, it should not prejudice Koon beyond the proportional part of the judgment which those premises, in connection with Gilmore’s other real estate ought to pay. But independent of that consideration, I am disposed to concur in the view taken of the case by the supreme court, to wit: that Southard has been guilty of so much laches in the assertion of his rights that he ought not to be permitted to enforce them against these surplus moneys. If he is entitled to these surplus moneys, it is upon the ground that the Van Wagner judgment is not a valid lien against the lands. If this were so, then those lands would not have been liable to be sold upon the execution issued on the Van Wagner judgment, and Southard, as a party interested in those lands, should have prevented such sale by injunction. But he neither interfered to prevent such sale, nor the consummation of the title by deed, nor the delivery of possession thereunder to the purchaser. It is well suggested in the court below that after such practical submission to the claim of Koon, Southard would not have been in a situation to maintain an action of ejectment, nor to seek equitable relief against him. Koon has been permitted, by the tacit acquiescence of Southard to pay his purchase money for the premises, and to consummate his title without objection or protest; and it is now too late to reinstate Koon in his. original condition, and would be, I think, giving practical encouragement to excessive negligence and indirect injustice and fraud, to interfere in this stage of the proceedings to correct an imputed error or mistake growing out of a probable misapprehension of a rule of law.

I am in favor of affirming the order of the supreme court, with the costs of appeal.'

Davies, J.

(After stating the facts.) Five objections are mainly urged by the counsel for the appellants, to the right of Koon to the surplus moneys in this case.

1. That the judgment confessed by Gilmore to Van Wagner is void, on the ground that the statement upon which it is entered, was not in conformity with the code.

2. That previous to the sale in June, 1857, by the sheriff, on the execution issued upon the judgment in favor of Van Wagner, that judgment had been paid and satisfied.

3. That the lien of the judgment had been extinguished by the judgment of foreclosure and sale in the action commenced by Platt, to foreclose his $700 mortgage upon the Eighth avenue property, to which action Van Wagner had been made a party defendant.

4. That it was the duty of Van Wagner to have collected the amount of -his judgment out of the Ninth avenue property; and that haying released the same, he is now precluded from a resort to the Eighth avenue property for that purp ose.

5. That Van Wagner, and those claiming under him, are estopped from enforcing this judgment against the Eighth avenue property, on the ground that at the time of the sale under the Platt mortgage and the purchase of the premises by Southard, it was announced that there were no other liens upon the premises than the twó mortgages to Myer and Quackenb.ush, and that Van Wagner did not then assert the lien and validity of his judgment, as he was bound to do. These objections will be considered in the order stated.

1. The defectiveness of the statement contained in the judgment. It authorizes a judgment to be entered for the sum of $1,475, for a debt justly due to the plaintiff arising upon the following facts:

“Dec. 1st, 1852. Money was lent by the plaintiff
to- the defendant to- aid in purchasing a lot in
Forty-seventh street, to the amount of_______$200 00
“ Aug. .1st, 1853. A balance was due to plaintiff by defendant on the purchase of Eighth avenue lot to.................................. 800 00
“ May 1st, 1854. Money was lent by the plaintiff to defendant to aid in purchasing lots on Ninth avenue to___:........................... $300 00
“May, 1st, 1854. And cash was lent by the plaintiff to the defendant at different times since above to____________"________________ 175 00
$1,475 00
Which sum of one thousand four hundred and seventy-five dollars is now due -by the defendant to the plaintiff, the interest on said sum having been paid till the date hereof.
“ Dated New York, 29th December, 1854.
“ (Signed.) • Egbert Gilmore.”
And which statement is duly verified by his oath. me

If this statement does not conform to the requirements of section 383 of the code, it is difficult to perceive how one can be drawn .which would. The code requires the statement to be - verified, and to contain 1st. The amount for which the judgment may be entered, and an authority to enter judgment therefor.

2. If it be for- money due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor, is justly due. It is incontrovertible that all the matters required by the first subdivision of this section are contained in this statement. It states the amount for which the judgment may be entered, and authorizes its entry. The judgment being for money due,- it also states concisely the facts out of which it, that is the indebtedness of the defendant to the plaintiff, arose. And the statement must show that the sum for which the judgment is confessed, is justly due. These facts are here given in great detail, and assuming, as we must, that they are truly stated, they show conclusively that the defendant, on the day he authorized the entry of this judgment, was justly indebted to the plaintiff in the sum named therein. The dates of the separate indebtedness, and the cause thereof are specifically stated, and could not well have been more accurately given. This remark does not of course, apply to the last item of $175, of cash lent to the defendant by the plaintiff from the 1st o'f May, 1854, to-December 29th of that year. In Lanning v. Carpenter (20 N. Y. 447), and in Freligh v. Brink (22 id. 418), we • held the statements- sufficient which declared that the debt was for money borrowed by the debtor of the creditor, without any specification of time or separate amounts. We have frequently affirmed the doctrine of those cases, and we see no reason to depart from the rules there laid down. The statement in the judgment must therefore be deemed a compliance with the provisions of the code, and as not subject to impeachment for the cause suggested. And the difficulty presents itself, which is fatal to the attempt of Southard to impeach the validity of this judgment. It was a good judgment as between the parties, and before any attempt was made by any party who had a right to challenge it, Koon became a purchaser at a sale under an execution issued upon it, and paid the purchase money, and took his deed for the premises. The judgment cannot now be impeached collaterally. (Miller v. Earle, 24 N. Y. 110; Neusbaum v. Keim, id. 325.)

2. It is urged that the sale on the 13th of June, 1857, to Koon, by virtue of the execution upon the Van Wagner judgment, passed no title to him of the premises sold, for the reason that the judgment had been previously paid and satisfied. It is a sufficient answer to this objection to observe that the referee has found, as matter of fact, that the judgment held by Van Wagner was not in fact paid, or in any way actually satisfied. As this finding is conclusive upon this court, it is unnecessary to examine the testimony adduced before the referee, to ascertain whether it sustains such a finding. We assume it to be so,' and that disposes of this objeetion.

3. It. is urged that the lien of Van Wagner’s judgment was extinguished by the judgment of foreclosure and sale, in the action instituted by Platt to foreclose his $700 mortgage on the Eighth avenue property, Van Wagner being a party defendant in that-action. That mortgage bore date May 4, 1855, and the premises were then subject to the previous mortgages to Myer and Quackenbush, and to the general lien of Van Wagner’s judgment, and to the mortgage to Southard of May 29th, 1855, and to the mortgage to Van Wagner of June 7th, 1855. The two latter mortgages being subsequent liens to Platt’s mortgage, and the two other mortgages and Van Wagner’s judgment being prior liens, Southard and Van Wagner were made parties defendant upon the allegation in the complaint that they had, or claimed, some interest in the premises, which interest or lien, it was charged, if any, had accrued subsequently to the lien of the mortgage to Platt, the plaintiff. It was such subsequent lien only that it was sought to foreclose and cut off and affect by the foreclosure and sale. The complaint did not seek to disturb or affect in any way the liens on the premises prior to that created by the plaintiff’s mortgage. The object sought was to obtain payment and satisfaction of that mortgage, by a sale of the mortgaged premises, and to effectuate that intention it was necessary to make a good title to the premises, to the purchaser at such sale. This could only be done by making the holders of subsequent liens parties to such foreclosure, and thus terminating and putting an end to their respective liens. In this manner the lien of Southard, which he had by virtue of his mortgage, was extinguished, and that of Van Wagner, created by the mortgage to him, was also extinguished, as were also the liens of all subsequent purchasers or incumbrancers. The surplus moneys arising upon the sale were all absorbed by Southard in the payment of his mortgage, the next lien upon the -premises after that in favor of Platt, the plaintiff in the action. Van Wagner’s mortgage was thus removed from, and ceased to be a lien upon, said premises, by reason of this foreclosure, and without the payment of any thing to him on account thereof. This disposes of an argument urged before the referee, that the lien of the judgment had been extinguished because the amount of it had been included in the mortgage. If the mortgage had been paid or satisfied by the act of the mortgagee, there would have been force in this suggestion, but as it was extinguished by means of this foreclosure and sale, without the pretence of payment of any part thereof, the judgment remained wholly unaffected, by reason of the taking of the mortgage. Van Wagner was only made a party to the foreclosure under which Southard’s purchase was made, as having an .interest subsequent, and which subsequent lien he only had by virtue of. his mortgage subsequent to the mortgage,- and the decree or judgment in that action did not affect his right to enforce his judgment, which was a prior lien to the foreclosed mortgages. (Lewis v. Smith, 11 Barb. 156; Id. 5 Seld. 502; Bank of Orleans v. Flagg, 3 Barb. Ch. R. 318; Story Eq. Pl. § 259; Elliott v. Pell, 1 Paige, 263; Holcomb v. Holcomb, 2 Barb. 20.)

Leiois v. Smith was an action of ejectment to recover dower. The defendants set up in bar to the action a decree in a foreclosure suit, and a sale pursuant thereto—the defendants claiming and holding title from the purchaser at that sale. The mortgage was executed by the husband, of Mrs. Lewis, she not joining therein, and she was made a party defendant, and was duly served with process to appear and answer, and also with a notice that,no. personal claim was made against her. It was alleged in the bill that the defendants therein named had, or claimed to have, “some interest in the mortgaged premises as'subsequent purchasers or incumbrancers, or otherwise,” and the prayer was that all the defendants might be foreclosed of all equity of redemption and claim of, in, and to the said premises. The judge, at the circuit, held the foreclosure suit was conclusive against the plaintiff, and that the defendant was entitled to judgment. The supreme court reversed the judgment—-holding that she was not called upon by the allegations of the complaint to answer as to her claim of dower in the mortgaged premises; that such right was superior, and prior to the lien created by the mortgage; and that the allegations of the complaint pointed only to liens or claims subsequent to that created by the plaintiff’s mortgage; that she was justified in the belief that these interests of hers were not designed by the complainants to be brought into litigation in that suit. Leiois v. Smith was brought to this court, and the judgment of the supreme court affirmed. (5 Selden, 502.) In Corning v. Smith (2 Seld. 82), it was held by this court that where one claims adversely to the title of the mortgaged property, and prior to the mortgage, he cannot be made a party defendant in a bill to foreclose a mortgage for the purpose of trying the validity of such adverse claim, and the decree made disposing of such claim will be held erroneous, and will be reversed, though made after a hearing upon pleadings and proofs.

In the case of The Bank of Orleans v. Flagg (3 Barb. Ch. Rep. 318), the Chancellor said: “ The bill in this case was not properly framed. To enable the plaintiff to litigate that question (that was priority over a lien or claim superior to that of the mortgage), instead of alleging falsely, that he had or claimed an interest in the premises which had accrued subsequent to this mortgage, the bill should have stated that he claimed an interest under a contract, or a pretended contract to purchase prior to the mortgage.”

In the present case, Van Wagner was the owner and holder of two liens upon the mortgaged premises, one prior to the mortgage sought to be foreclosed, and the other subsequent. He was made a party defendant under the allegation that he claimed an interest in the mortgaged premises, arising subsequently to that created by the mortgage. He had only to answer, that allegation, and by confessing the complaint, he was only concluded, as to such subsequent lien. The complaint property took no notice of the prior lien, and it was therefore unaffected by any allegation in it, or by anything done in the action. It is a well settled rule in equity pleading, that no facts are in issue, unless charged in the bill; nor can relief be granted for matters not chargeable, for the court pronounces its decree, secundum allegata etprobata. (Story?s Eq. PI. ^ 269.)

In Elliott v. Pell (1 Paige, 263), the chancellor said: “ The decree made upon the bill and answer must be taken with reference to the matters then in litigation before the court, and cannot be construed to affect the rights of any of the parties to the lands which were not the subject matter of litigation in that suit.” In Eagle Fire Company v. Lent (6 Paige, 635), the chancellor declares the rule emphatically to be, that, so far as mere legal, rights are concerned, upon a bill of foreclosure, the only proper parties 'to the suit are the mortgagor and mortgagee, and those who have acquired rights or interests under them subsequent to the mortgage. And the mortgagee has no right to make one who claims adversely to the title of the mortgagor, and prior to the mortgage, a party defendant Tor the purpose of trying the validity of his adverse claim of title in this case. And he says, the case is analogous in principle to making one who claims adversely to the vendor a party to a bill filed by the vendee for the specific performance of the contract of sale. In which case it has been held that such adverse claimant cannot be made a party for the purpose of having the validity of his claim settled by a decree of this court, which shall thereafter be binding upon him, in relation to his claim of title. (Lange v. Jones, 5 Leigh’s R. 192.) The precise question now presented was adjudicated in Holcomb v. Holcomb, (2 Barb. S. C. 20.) Perry, the holder of a mortgage prior to, that sought to be foreclosed, was made a party defendant to an ordinary bill to foreclose a mortgage. The complaint contained the usual allegations, that he (Perry) was made a party defendant, as a subsequent purchaser or incumbrancer; and it was sought to divest him, by the decree in the ¿ause, of a title which he claimed to hold adversely to the parties to the mortgage, and which he acquired under a lien prior to the conveyance by the plaintiff to the mortgagee. The court say: “It is a general rule that, besides the parties to the mortgage, those only are proper parties to a suit for its foreclosure who have, subsequent to the mortgage, acquired rights or interests under the mortgagor or mortgagee. The plaintiff may also make prior incumbrancers parties to the bill, for the purpose of having the amount of such incumbrances liquidated and paid out of the proceeds of the sale; or he may, at his option, have the premises sold subject to such prior incumbrances. The object of the bill is to vest in the purchaser, under the sale made by virtue of the decree of foreclosure, the same title which the mortgagor had at the time of the execution of the mortgage. * * * . In this case, if, instead of making Perry a defendant, under the general allegation that he claimed an interest in the premises 1 as subsequent purchaser, incumbrancer or otherwise,” the facts upon which the plaintiff relies to defeat the title of the defendant Perry had been alleged in the bill, he might have demurred to the bill upon the ground that the plaintiff had no right to bring him into court upon this bill of foreclosure, to try the validity of his title to the mortgaged premises.”

In the case at bar, the plaintiff in Platt’s foreclosure suit did not make Van Wagner a party as a prior incumbrancer, admitting the validity of the prior lien, and seeking only to have ascertained its amount, to the end that it might be paid and discharged out of the proceeds of the sale of the mortgaged premises, but he only sought to - have foreclosed liens subsequent to that created by his mortgage. Under a decree made where the complaint contained allegations similar to those in the present case, prior liens or incumbrances are wholly unaffected, and it presents no bar or impediment to a party to such decree, from enforcing such prior lien or incumbrance. Such is the view taken by the legislature, when declaring the effect of a foreclosure in chancery, when it is declared that the deed to be executed by the master, “shall vest in the purchaser the same estate (and no other or greater) that would have vested in the mortgagee if the equity of redemption-had been foreclosed, and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and against all parties to the suit, in which such sale was made, and against their heirs respectively, and all claiming under such heirs.” (2 R. S. 192, § 158.) This court said, in Lewis v. Smith (supra), in reference' to this section of the revised statutes, that, taking all the expressions. together, it is obvious that the “ entire bar,” which is spoken of, refers to rights and interests in the equity of redemption, and does not embrace interests which are paramount to the title of both' mortgagor and mortgagee. Such interest would be other and greater than would have vested in the mortgagee, if the equity of redemption had been foreclosed.

There is nothing in conflict with this doctrine in the case of Drury v. Clark (16 How. Pr. Rep. 424); and that case is in harmony with it. In alluding to the points contended for by the defendant in that case,'Judge Emott observes that if they are maintained, the plaintiff will be compelled to state a variety of issues to different defendants; issues1 in which he has no interest, and to await their determination among the defendants, whom he is bound to make parties. This' should not be permitted, if possible, and is not, I think, required. The complaint before us states that these various defendants nave or claim each some interest in or lien upon the mortgaged premises; but, in every case, such lien or interest is subsequent and subject to the plaintiff’s • mortgage. He states sufficiently all that is necessary for the plaintiff’s purpose. The fact that these defendants have or claim some interest in the lands mortgaged, makes them proper parties to the foreclosure; and the fact that these interests - are subsequent to the plaintiff’s lien, renders it unimportant to him, or to the purposes of his suit, so long as that is confined to the foreclosure and sale under his mortgage, what the particular rights of these defendants are. They are only interested in the eventual surplus, if any, and théir respective interests are material only among themselves, and not to him. All that the plaintiff asks, is a foreclosure of his mortgage against their estates or interests; and it is sufficient for that purpose, and to justify making them parties, that they hav’e or claim some interest, or estates in the premises; but these, whatever they are, are subject to his mortgage. Any detail of their titles, or the extent and relative priority of their interests, would be superfluous if the suit is confined to the first mortgage, and the judgment proceeds no further.

It must be deemed, therefore, to be well settled, upon principle and authority, that the decree or judgment in the Platt foreclosure suit, in no sense, affected or impaired the validity of Van Wagner’s judgment, or the lien created by it, and presented no obstacle to the subsequent sale of the premises covered by that mortgage, under the execution issued upon that judgment.

It is also insisted that it was the duty of Van Wagner to collect the amount of his judgment out of the Mnth avenue property; and that having released that property from the lien of his judgment, he was precluded from resorting to the Eighth avenue property for that purpose. The general rule undoubtedly is, that when a party holds a lien upon several parcels of property, and seeks to enforce it, equity will Compel him to resort to the property, in the inverse order of its alienation, when the same may have been in the meantime alienated. And if the holder of such lien has notice of the rights or equities of others, or releases from the operation of his lien, property primarily liable for it and adequate for its discharge, he cannot thereafter resort to that portion of the property subject to his lien, secondarily liable for its payment. In the case now under consideration. Platt had purchased property worth $4,400 beyond the five prior mortgages or incumbrances, except the judgment; and Southard had bought property worth $2,150 beyond the two prior mortgages or incumbrances thereon, except the judgment; and they both bought at the same time and place. Before Southard obtained his deed, Van Wagner released to Platt, who had become the purchaser of the Ninth avenue property on a sale upon a foreclosure of his mortgage thereon, all his right and interest in said property. The .effect of such release was to discharge the Ninth avenue property from the effect and lien of Van Wagner’s judgment, and leaving it to rest solely on the Eighth avenue property. Southard, as the mortgagee of that property, by virtue of his mortgage, dated the 29th of May, 1855, had a superior equity to Platt, under his mortgage dated the 13th- of July, 1855, on the Ninth avenue property, to have the latter property first applied to the payment of the Van Wagner judgment. A mortgagee is an alienee to the extent of his mortgage, quite as much as a grantee. (Kellogg v. Rand, 11 Paige, 59, 64.) Southard, therefore, by virtue of his mortgage, had an equity to insist that the Ninth avenue property, that aliened by Gilmore, should be first applied to the payment of the Van Wagner judgment. But this equity terminated when his mortgage was discharged, by the credit to him of the amount thereof in his purchase of the Eighth avenue property, subject to the Van Wagner judgment. That judgment was a lien on both parcels, and to be paid proportionally by each. The utmost that can be urged, is that the release of Van Wagner discharged the Ninth avenue property from its proportionate part of the amount of that judgment, leaving the Eighth avenue property to respond to its proportionate part. It did not have the effect, as contended for by the counsel of the appellants, to discharge and satisfy the judgment wholly. A portion remained due in any aspect, and a sale by virtue thereof passed a good title to the purchaser. It was not a sale under a paid or satisfied judgment. Koon being a bona fide purchaser, therefore, acquired title to the premises, and as such owner was entitled to the surplus moneys arising upon the sale of the premises in this action. He holds the same under a prior title to that of Southard, whose title was subordinated, to the one which he acquired.

There remains to be considered the fifth objection, namely: That Van Wagner, and those claiming under him, are estopped from enforcing this judgment against the Eighth avenue property, on the ground that at the time of the sale under the Platt mortgage, and the purchase of the premises by Southard, it Avas announced that there were no other liens upon the premises than the two mortgages to Myer and Quackenbush, and that he did not then assert the lien and validity of his judgment as he ought to have done. The facts, as found by the referee, bearing upon this point, are that the sale, at which Southard purchased the Eighth avenue property, was made in fact subject to the íavo mortgages to Myer and Quackenbush, and that no other liens were announced at the sale; that Van Wagner was present at the sale; that Southard had no actual notice of the Van Wagner judgment when he bid on the foreclosure sale, and paid his ten per cent, for the Eighth avenue property, but he knew of it some months before he took his deed or paid the balance of .his bid. And the referee found, as a conclusion of law, that the omission of Van Wagner, at the sale on the foreclosure, to give notice of his judgment, did not estop him now; or those claiming under.him, from setting up the same. It is to be observed here that the referee has not found, as claimed, that it Ayas announced at the sale, that there Avere no other liens upon the premises than the two mortgages to Myer and Quackenbush.

If Van Wagner had, at the sale, announced that his judgment was not a lien, or remained silent when such an announcement had been made, I think he would have been estopped from afterwards claiming it to be a lien. But the referee does not find that anything was said at the sale about the lien of the judgment, and therefore Van Wagner was not called on to say anything in relation to it. But a complete answer to this objection is, that before Southard completed his purchase he had full knowledge of all the facts. It appears that Southard, although he did not know of the existence of the Van Wagner judgment when he bid at the foreclosure sale and paid his ten per cent, yet he did know of it some months before he took his deed and paid the balance of his bid. He was not, therefore, a bona fide purchaser, without'notice of the judgments. If he had not elected to take the property subject to the judgment, and he had purchased it under such circumstances as would entitle him to have the property relieved from the lien of the judgment, the court, on his application, would have released him from his bid, and directed a return to him of the ten per cent paid. He cannot now be permitted to set up that he did not know of the existence of this lien, after having elected to complete his purchase with full knowledge of it. Upon the facts found by the referee, there is no ground for. applying the rule of estoppel as recognized and approved by this court in Thompson v. Blanchard. (4 N. Y. Rep. 303.)

Southard’s executors are not personally charged "with the costs of the proceeding by the order appealed from, and on this appeal we cannot review the adjustment of costs. We cannot look into the adjustment to ascertain that any items have been allowed-not authorized by the code. The sum at which they weré adjusted must necessarily include the expenses of the two references and hearings before the referee, and there is nothing to show in the appeal papers that the sum was arbitrarily fixed. The judgment directs that the costs be paid by the appellants, executors of Thomas Southard, deceased; and this is a direction to pay the same out of the assets of the deceased in their hands, and not that the executors should pay the same personally. (3 B. S. 5th ed. p. 555, § 317.) .

The order appealed from should be affirmed.

Order affirmed.


author:
Mullin, J. Denio, Ch. J.
      Ingraham, J.

text:
    Gunning S. Bedford v. Henry Terhune and George B. Edwards.
    It is essential to an under-letting of demised premises that it be of a part only of the unexpired term. When the transfer is of the whole of a term, the person taking is an assignee, and not an under-tenant, although there be in form an under-letting.
    In the absence of any evidence of the agreement under which parties entered into possession of demised premises, subsequent to the lessees, if it is shown that they occupied during the whole of the unexpired term of the lease the fair presumption is that they entered for the whole of such unexpired term'. And as such an interest is given, not by an under-lease, but by an assignment, the presumption must be that the occupants are in as assignees, and not as under-tenants.
    Where by the terms of a lease it is made a ground of forfeiture of the term if the lessees shall let or under-let without the written consent of the lessor, and parties other than the lessees are in possession without such consent, in the absence of any proof as to the agreement under which they entered, the presumption (if any presumption is to be indulged in), is that the transfer to the occupants was by assignment, and not by under-letting.
    If they are in as under-tenants, they will not .be liable to the landlord for the rent, either in an action on the lease, or for.use and occupation.
    Where the defendants entered by consent of the lessees, had the lease in their hands, and paid the rent thereon, to the lessor, for the benefit of the lessees, and occupied for the whole residue of the term, and there was no evidence of a holding in any other character; Held, that under these circumstances the law would presume they were in as assignees of the lease; and that they were liable as such on the lease, for the rent.
    When the law infers an assignment of a lease from certain facts proved, the inference must be of a valid, operative assignment, such an one as would be sufficient to transfer the term. And it is incumbent upon persons sought tobe charged with the rent, as assignees, to prove either that there was no assignment, or that it was one void in law.
    A lessor cannot recover rent upon a complaint for use and occupation, where it appears from the evidence that there was a lease of the premises to other parties, and that the defendants were in as assignees of the term.
    But in such a case, the court may, on the trial, allow an amendment of the complaint so as to conform it to the proof, and permit a recovery for the rent due on the lease, where it does not appear that the defendants have been surprised.
    In an action for use and occupation, a lease from the plaintiff1 to other parties, which had two years to run from the entry of the defendants, being proved; it was held that it was incumbent on the plaintiff to prove it surrendered,so that they were at liberty to re-let the premises; and that if a surrender in law was proved, the defendants were liable for the rent.

      In order to effect a surrender by act or operation of law, there must be a mutual agreement between the lessor and the original lessee that the lease shall terminate.
    It is not necessary that this agreement should be express. It may be inferred from the conduct of the parties.
    The occupancy by some person other than the lessee is a circumstance showing a surrender; but as the new occupant may enter as the tenant of the lessee, or as his assignee, or even as a trespasser, and thus his occupancy be consistent with the continuance of the first lease, it is absolutely essential that it should be clearly proved that the original lessee assented to the termination of his term.
    It must be proved that the lessor and lessee mutually agreed to a surrender of the term; and that proved, the original tenant is no longer liable; but the new tenant (if there be one), is liable.
    Where tenants sued for use and occupation by the original lessor, 'insist that they entered under the lessees, and show the lease in their hands, and prove the payment of rent by them on the original lease for the benefit of the lessees, they are liable as assignees of the term for the rent accruing after their entry.
    This action was brought to recover the rent of a store and basement, in the city of New York, for a quarter of a year, commencing the 1st of February, 1858, and ending on the last day of April of the same year.
    ■ The complaint set forth the ownership by the plaintiff of the premises, and the occupancy by the defendants for the quarter ending the 1st of May, 1858, and alleged that the use of said premises was reasonably worth the sum of $450, which the plaintiff had demanded, but the defendants refused to pay.
    The defendants, in their answer, deny that they ever occupied the premises as tenants of the plaintiff, or that they are indebted to him in any sum whatsoever. They then allege that the plaintiff, on the 1st of August, 1855, leased the said premises to E. & A. Ingraham & Co. for the term of two years and nine months, from the 1st day of August, 1855; that the defendants hired, used and occupied said premises solely as tenants of said E. & A. Ingraham & Co., and that the plaintiff had never recognized the defendants as his tenants, or in any manner accepted a surrender of the lease to E. & A. Ingraham & Co.
    On the trial in the marine court, the plaintiff proved, by his agent, his ownership of the premises in question, and the occupancy by the defendants for the term charged in the complaint, and that the use was worth $450.
    On the cross-examination of the agent, it was proved that the witness, as agent of the plaintiff, had executed and delivered to E. & A. Ingraham & Co. a lease of the premises in question, under seal, for the term of two years and nine months, from the 1st of August, 1855, at the yearly rent of $1,800, payable quarterly, said lessees not to let or underlet without the written consent of the plaintiff. The lessees had the right to a renewal for two years from and after the expiration of the said term, provided they gave the plaintiff notice in writing of their intention on or before the 1st of February preceding the end of the term.
    There was an agreement put in evidence, signed'in the name of the firm, with a seal affixed, whereby said E. & A. Ingraham & Co. agreed to pay the rent and certain proportions of water taxes, and not to let or underlet said premises.
    The defendants put in evidence eight receipts for so many quarters rent of the said premises, the first being dated May 1st, 1855, in full for quarter’s rent due at the date, and the last March 2d, 1858, being for quarter’s rent due on the 1st of February, 1858, signed by the plaintiff by his agent, and acknowledging the receipt of said rent from the defendants, on account of E. & A. Ingraham & Co.
    It was further proved, that after the plaintiff heard of the failure of Ingraham & Co. he and his agent went to the store and saw the defendants, who were then in possession, and they told the plaintiff he need not be afraid about his rent; that they intended to occupy the premises for .the same business carried on by said Ingraham &. Co. The defendants did continue to occupy and pay rent. On the 1st May, 1858, when called on for the rent, they said they had paid enough for Ingraham & Co., and should pay no more, as they (I. & Co.) owed them largely.
    In March, 1858, in a conversation between the plaintiff’s agent and the defendants in reference to an extension of the term, the defendants claimed they ought to have it for the additional year, as they were among the plaintiff’s best tenants, and had always paid punctually. On two occasions during the defendants’ occupancy, they offered the plaintiff’s agent notes for the rent, but did not say whose notes.
    The plaintiff’s counsel then put this question: “ Whose notes did you understand them to offer 9” The defendants’ counsel objected to the question. The court overruled the objection, and the witness answered: “Isuppose their own notes.” The defendants gave no evidence.
    The defendants’ counsel moved to dismiss the complaint. 1. Because there was no contract between the plaintiff and the defendants. 2. That the plaintiff had shown nothing from which the legal relation of landlord and tenant could be inferred. 3. That any presumption which might arise from the occupation of the premises is rebutted by the proof of hiring.
    The motion was denied, and the defendants’ counsel excepted. The defendants’ counsel then asked the court to charge, in respect to the alleged agreement, that it was collateral to the undertaking of Ingraham & Co. and void. The court refused so to charge; but did charge, that if the jury believed the parties made the agreement as sworn'to by the witness, and entered upon it at the time it was made, and carried it out up to the last quarter by the one party paying the rent every qúarter and occupying the premises, and the other party receiving the rent each quarter, in law, the defendants were liable for this rent. But if they believed no such agreement or understanding was made or had, then the defendants were not liable. The defendants’ counsel excepted to this branch of the charge.
    The jury found a verdict for the plaintiff for the quarter’s rent. An appeal was taken to the general term of the marine court, and the judgment was there affirmed. From the last-mentioned judgment an appeal was taken to the common pleas of the city and county of New York, and it was there affirmed. The court of common pleas having allowed an appeal to this court, an appeal was taken accordingly.

      Albert Mathews, for the appellant.

      Philip Reynolds, for the respondent. •
   Mullin, J.

The defendants must have occupied the premises in question either as sub-lessees of Ingraham & Co., as their assignees of the term, or as the tenants of the plaintiff; and if they are liable for the rent to the plaintiff, in either of these characters, the judgment appealed from should be affirmed.

1. Were the defendants under-tenants of Ingraham & Co.? No agreement to underlet is proved; nor is there any fact proved from which an underletting could fairiy be inferred. It was á ground of forfeiture of the term if Ingraham & Co. let or underlet without the written consent of the plaintiff, and no such consent is.pretended. It cannot be presumed that the defendants and Ingraham & Co. designed to make a transfer of the lease or of the term, in a way which eo instanti forfeited it, if there was any other mode in which the defendants could acquire the possession that would not produce such a result. If we are permitted to indulge in presumption, then the presumption upon the facts proved would be that the transfer to the defendants was by assignment and not by underletting. The defendants held for the whole residue of the unexpired term of the lease, commencing in February, 1855. When the transfer is of the whole of a term, the person taking is an assignee and not an under-tenant, although there is in form an underletting. It is essential to an under-tenancy that it be of a part only of the unexpired term.

In Woodfall’s Landlord and Tenant, 345, it is said, “ an assignment, as contra-distinguished from an under-lease, signifies a parting with the whole term.” Again, at page 358 of the same author, it is said, “ an .under-lease of the whole term amounts to an assignment.” In 1st Hilliard’s Abridgment, 126, § 55, it is said, “the ordinary distinction between an assignment and an under-lease is, that the former transfers the land for the whole term; the latter for only part of it.”

In the absence of any evidence of the bargain under which the defendants entered into possession, and it being shown that they occupied the whole of the unexpired term of the lease to Ingraham & Go., the fair presumption is that they entered for the whole of such unexpired term; and as such interest is given, not by an under-lease, but by an assignment, the presumption must be that the defendants were in as assignees, and not as under-tenants. But if they were in as under-tenants, they would not be liable to the plaintiff for the rent, either in an action on the lease or for use and occupation. (Woodfall’s L. and T. 358; 1 Chitty’s PI. 36; Taylor’s L. and T. 448.)

2. Were the defendants assignees of the' lease? The defendants were in possession, having the lease from the plaintiff to Ingraham in their hands, and they paid the rent to the plaintiff upon that lease, for the benefit of Ingraham & Co. When to these considerations are added the reasons assigned under the foregoing proposition, why the defendants were assignees and not under-tenants, the conclusion would seem to follow that the defendants were assignees of the term; they occupied for the whole residue of the term, and there is no evidence of a holding in any other character. Under these circumstances, the law presumes the defendants in as assignees of the lease. (4 Hill, 112; Taylor’s L. and T. § 429.)

In Quackenboss v. Clarke (12 Wend. 555), Clarke sited Quackenboss for rent as assignee of a lease given by him to one Washington. The defendant denied the assignment. And on the trial it was shown that the lessee had sold his interest to one Hardy, but did not execute an assignment to Mm; that Hardy sold Ms interest to the defendant, delivered to him the lease, but did not execute an assignment. there was a verdict for the plaintiff, and the defendant brought error. Savage, Ch. J., delivering the judgment of the court, says: “The fact of possession is sufficient evidence of an assignment in the first instance. The fact of an assignment is a transaction between the defendant and the lessee, of which the plaintiff is not cognizant, but the defendant is. There is no hardship, therefore, in concluding him by his possession, unless he discloses the true state of his title.” The same was held in Armstrong v. Wheeler (9 Cowen, 88), and in Williams v. Woodard (2 Wend. 487), and these cases rest on 2 PMllip’s Ev. 150; 3 Bos. and Pul. 461.

In 2 Phil. Ev. 150, the doctrine is stated more fully. The learned author says: “ When the action is brought against the defendant as assignee of the term; and the issue is on the assignment, it will be enough for the plaintiff to give general evidence, from which the assignment may be inferred, or that the defendant is in possession of the demised premises, or has paid rent. Payment of rent by the defendant to the plaintiff, when the defendant has been let into possession by the original lessee, is prima facie evidence of the assignment of the whole term. * * * The defendant who is charged as-assignee of a term, is at liberty, in an issue on the assignment, to show that he holds the premises as under-tenant to the lessee, and not as assignee.”

Every fact was proved in this case required to establish an assignment to the defendants of the term. And they gave no evidence to rebut or overcome the grima facie case thus made against them.

Under the statute of frauds, the assignment of a lease must be made in writing, or it is void. If there was in fact no assignment in this cas'e, the defendants could not be made liable. But as the law infers an assignment from certain facts proved, the inference must be of a valid operative assignment, such an one as was sufficient to transfer the term. It was incumbent on the defendants to prove either that there was no assignment, or that it was one void in law.

Instead of making such proof, they have satisfied themselves with the case as made by the plaintiff, and as that case fixes their liability, they should not complain.

The defendants being assignees, they were liable, on the . lease, for the rent. The covenant to pay rent runs with the land, and binds the assignee, even though he is not named in it. (Jacques v. Short, 20 Barb. 269; 23 Wend. 506; 3 Den. 284; Woodfall’s Landlord and Tenant, 278.) It seems to me, therefore, the defendants must be deemed assignees of the lease, and liable as such.

The pleadings are not framed to charge the defendants in that character. The complaint claimed to recover for use and occupation, disregarding altogether the lease to Ingraham & Co., and a transfer thereof to the defendants. When the whole evidence was out, it was established that the plaintiff could not recover for use and occupation. They must recover, if at all, upon the covenants in the lease. And the question now is, was the court at liberty, on the trial, to amend the complaint so as to conform it to the proof; or was there such a failure of proof as defeated altogether a recovery.

To permit a recovery in this case is to carry the right of amendment as far, it seems to me, as it is possible to carry it and not overlook altogether the great end and aim of all pleading which is to inform the opposite party of the cause of action or- defense which he is called upon to meet.

The courts have been very liberal in giving effect to the provision of the code that permits variances to be disregarded, and amendments to be made conforming pleadings to proofs. In Robinson v. Wheeler (25 N. Y. 252), the complaint charged that the defendant had set fire to and destroyed a wood shed on premises of.which he owned the reversion. On the trial it was proved that the building was destroyed by the negligence of the defendant, and the plaintiff was permitted to recover.

In Byxbie v. Wood (24 New York, 607), the plaintiff claimed to recover for money obtained from him by fraud. The fraud was not found by the referee, yet the plaintiff was held entitled to recover.

In Harpending v. Shoemaker (37 Barb. 270), the action was for money had and received, &c. . On the trial the' plaintiff offered to prove that the defendant had unlawfully taken and converted his property, sold it, and received the avails. The evidence was held competent, and the plaintiff was permitted to recover.

In all these cases, the plaintiff was permitted to recover on a case essentially different in its facts from that stated in the complaint. And it seems to me, it would be giving effect only to the principle on which these cases were decided, to hold that the plaintiff in this case was entitled to recover the rent due on the lease, notwithstanding the action is for the value of the use and occupation. .

Aside from the principle on which such a recovery may be supported, the circumstances of the case justify the court in permitting the plaintiff to take judgment for the rent. 1st. The amount claimed and recovered, is the rent due by virtue of the lease. 2d. The plaintiff on the proof given by him when he rested, was entitled to recover for use and occupation. And it was the defendants’ proof of the lease that produced the difficulty in the case. Even the grounds of this defense are not set out in the pleadings. He was not surprised. He held in his own hands the evidence which defeated an action for use and ocdupation, and which authorized a recovery on the lease.

While I entertain serious doubts'whether the principles on which the right of recovery in this case must rest, will not be the source1 of trouble in- trials at the circuit, yet I do not think it is carrying the right of amendment farther than has been done in the case cited. I am, therefore, in favor of affirming the judgment as a recovery on the lease; it not being suggested that the defendants were surprised.

3. Were the defendants tenants of the plaintiff, and as such, liable for use and occupation? A lease to Ingraham & Co., which had two years to run from the entry of the defendants being proved, it was incumbent on the plaintiff to prove it surrendered, so that he was at liberty to re-let the premises. And if a surrender in law is proved, the defendants are liable for the rent. 1

A surrender is defined to be the resignation of a particular estate for life or for years to him in the immediate reversion or remainder. (Comyn’s Digest, title Surrender A.) The surrender may be made by deed, conveyance in writing, or by act or operation of law. (3 R S. 220, § 6.)

If there is a surrender in this case, it is by act or operation of law—there being no deed or conveyance in writing shown or pretended.

There is a surrender by act or operation of law, when the owner of a particular estate has been party to some act the validity of .which he is by law afterwards estopped from disputing, and a lien created which would not be valid, if his particular estate had continued. (Springstein v. Schermerhorn, 12 J. R 357; Vun Rensselaer v. Penniman, 6 Wend. 569; Livingston v. Potts, 16 J. R 28.)

In order that the secoiid lease may operate as a surrender of the first, it is essential that the lease be a valid one. It was held in Schieffelin v. Carpenter (15 Wend. 400), that a parol lease for more than a year to a third person, though he takes possession, will not operate as a sursender. The same rule was applied in Whitneys. Meyers (1 Du. 266),

It is not necessary that the second lease should be to the first lessee. If given to a third person by the consent of the first lessee, it operates as a surrender.

In Walls v. Atcheson (24 Eng. C. L. 228), it was held that a landlord could not recover rent of his tenant, where the latter had abandoned the premises during the term, and the landlord had let them to another not for the benefit of the original lessee. The acts of the parties were treated as a rescission of the agreement, and to have dispensed with a surrender. (See same case in 12 Erig. C. L. 565.)

In Nickells v. Atherstone (59 Eng. C. L. 943), the plaintiff had let the premises to the defendant for three years. At the end of the first year the defendant quit, and wrote a letter to the plaintiff in which he requested him to let the premises to some other person. The plaintiff did let them to another for three years, and the new tenant entered and paid two quarters’ rent, and became insolvent. The action was brought for the balance of the rent due by virtue of the lease to the defendant, after applying the amount paid by the new tenant. The question was submitted to the jury whether the plaintiff had accepted the new tenant in substitution and discharge of the defendant. The jury so found. The judge instructed them that if they so found, the verdict should be for the defendant. The plaintiff had leave to move for liberty to enter a verdict for himself, a rule nisi having been obtained. The court held that there was a surrender of the old lease, by operation of law.

In Smith v. Niver (2 Barb. 180), it was held by Harris, J., that where a landlord has consented to a change of tenancy, and has permitted a change of occupancy and received rent from the new tenant as an original and not a subtenant, he cannot afterwards charge the original tenant for rent accruing during the occupation of the new tenant.

T have referred to these cases because they are the most favorable of any I can find to the plaintiff, and yet they do not go far enough to sustain this action against the defendants as holding directly from the plaintiff.

It wall be seen that in all of the cases a mutual agreement between the lessor and the original lessee that the lease terminates, must be shown. It is not necessary that the agreement should be express; it may be inferred from the conduct of the parties. The occupancy by some other than the lessee is of course a circumstance to show a surrender; but as the new occupant may enter as the tenant of the lessee, or as his assignee, or even as a trespasser, and thus his occupancy be consistent with the continuance of the first lease, it is absolutely essential that it should be clearly proved that the original lessee assented to the termination of his term. In short, it must be proved that the lessor and lessee mutually agreed to a surrender of the term, and that proved, the original tenant is no longer liable; but the new tenant (if there is one) is liable.

What evidence is there in this case, of an assent by Ingraham & Co. to a surrender of their lease? No witness has testified directly to any such fact. It does not appear that they and the plaintiff ever spoke together upon the subject. The fact that the defendants held their counterpart of the lease; that they (Ingraham & Co.), quit possession, and that the defendants entered, occupied and paid rent, and even claimed to be tenants, is entirely consistent with a continuance of the original lease, and occupancy by the defendants as under-tenants or assignees of the lessees. There is not a particle of proof that Ingraham & Co. have ever consented to a letting by the plaintiff to the defendants, or even that they knew that any such tiling was contemplated.

For aught that appears in this case, the defendants are liable to Ingraham & Co. for the rent of the premises during. the whole period they were in possession.

In Drury Lane Co. v. Chapman (1 Carr. & Kir. 14), it appeared that the plaintiffs had rented certain counters in the saloon of the theatre to Mrs. Chapman, mother of the defendant, for some years; she entered and occupied less than a year, and died. The defendant applied to the plaintiffs to take him as their tenant, and they accepted, and he entered and paid rent for a part of the term. The plaintiffs sued him to recover for the use and occupation of the premises. The defendant put in evidence the lease to his mother, and letters on her estate to another son. The court put it to the jury to say whether the defendant entered under a new contract with the plaintiffs for the use of the premises, or whether he entered under the lease to his mother. The jury found he entered under a new agreement, and there was a verdict for the plaintiff. The court refused a rule to show cause why there should not be a new trial. If this case was rightly decided, it follows that it is wholly immaterial whether there is an outstanding lease when the <D new agreement is made. It is enough if the plaintiff is able to prove the new agreement; the defendant is then. estopped from disputing his title. ' In the case cited, it is obvious that by the death of Mrs. Chapman her lease was not annulled. It passed to her representatives, who were entitled to the use and occupation of the premises, and the defendant was in law liable to them. In Doe v. Wood (14 Man. & G. 681), H. had leased certain premises of Lady H., and died, leaving a widow. She continued to occupy and pay rent to Lady H. J. H. took out letters of administration on H.’s estate, and after such letters taken, the widow, with the knowledge of the' administrator, occupied and paid rent to Lady EL, and he never objected to such payment or made demand for the rent. The administrator brought ejectment against the widow and her second husband, and it was held that there was no evidence of surrender, by operation of law, so as to create the relation of landlord and lenant between Lady H. and the widow, and the plaintiff recovered.

These two cases cannot stand together. The first is in utter disregard of the well-settled rule that the lessor cannot recover against a third person for the use and occupation of premises, unless he shows a surrender of the original lease. In the case last cited, it is quite clear that there ought not to have been a recovery, if the widow was the tenant of Lady H.

There may be a recovery by the original lessor against a third person who enters during the running of a lease, under an express agreement with such lessor for the occupancy, when this entry is under such contract exclusively, and has no connection whatever with the original lease; and when the original lessee has omitted to assert any claim to the premises, or for the rent thereof. In such case the new tenant may properly be held estopped from disputing the title.of his lessor. • (Phipps v. Sculthorpe, 1 Barn. & Ald. 50.)

But in this case the tenants insist that they entered under Ingraham & Co., and show the lease, and prove payment of rent by him on the original lease, for the benefit of the original lessees.

Believing the defendants are liable, as assignees of the term, for the rent claimed, I am in favor of affirming the judgment, with costs. •

Judges Davies, Weight, Selden, and Hogeboom were also for affirmance.

Denio, Ch. J.

I should be glad to affirm this judgment if it could be done consistently with the rules of law; but there are insuperable difficulties in coming to that concluclusion.

The evidence was perhaps sufficient to charge the defendants as assignees of E. & A. Ingraham & Co., though the terms of the receipts for rent which the plaintiff received, would have raised some questions on that point. But it is a conclusive objection to a recovery upon that ground, that the action was not upon the lease, and that it diet not seek to charge the defendants on the ground of privity of estate, but upon an independent letting of the plaintiff to them. And if the difficulty arising out of the pleadings could be obviated by conforming them to the proofs according to the code (§ 175), the same difficulty would be presented by the charge of the judge, by which the jury were instructed that the plaintiff could not recover, except upon the ground of an independent letting by him to. the defendants. The idea of a recovery upon the original lease against the defendants as assignees, was thus entirely precluded.

The question to be considered therefore is, whether there was such evidence of a letting by the plaintiff to the defendants as was suitable to be submitted to the jury. I do not appreciate the objection urged by the defendants’ counsel, that such a letting could not be set up, on account of the existence of the lease from the plaintiff to Ingraham & Co. They had failed in business, and had gone out of possession. If then the plaintiff had let the premises to the defendants by a new and independent arrangement, at the same rent which the former lessor had agreed to pay, or any other rate of compensation, and the defendants had occupied for the residue of the original term, and the first lessees had interposed no obstacle, and had not interfered with the defendants’ enjoyment, the present defendants could not have set up the continuance of the former demise as an answer to the claim made against them for the rent which they had agreed to pay. But there was no proper evidence of a fresh letting by the plaintiff to the defendants. The plaintiff and his agent, and the defendants had a conversation, in which, it was assumed that Ingraham & Co. had failed. The defendants said that the plaintiff need not fear or be concerned about the rent; that they intended to "occupy the store for the same business. This was pretty vague, but possibly it might have been enough, connected with the subsequent occupation by the defendants, to enable the jury to find a new letting, had there been nothing else in the case. But the plaintiff continued to give and the defendants to receive, at the expiration of. each quarter, writtén receipts for the quarterly rent, at the rate mentioned in the original lease, stating on their face in each instance that the money was paid for the account of E. & A. Ingraham & Co. This is precisely the same thing as though the plaintiff had continued to receive the rent- as it accrued, from the original lessees. It was quite competent for these lessees, notwithstanding their failure in business, to retain the leasehold estate granted to them by the plaintiffs by the original lease of the store, unless they should be divested of it by legal process, or by an insolvent’s assignment, and it seems to me that they did so retain it by causing the rent to be regularly paid. These payments, by the terms of the receipts which were given for them, were referable to the original lease, and to no other subject; and they kept that lease in full vigor down to the last quarter day preceding the quarter for which the plaintiff sued the defendants. The arrangements between Ingraham & Co. and the defendants, by which the latter actually advanced the several amounts ¡3aid for.rent, were not disclosed, and they are not material. The plaintiff consented to receive his rent from the parties named in the written lease by the hands of the defendants, and in the absence of any fraud or mistake, he cannot say that there was not on each occasion of such payment an affirmance of the continued existence of that lease. It strengthens rather than impairs the force of tills evidence, that the defendants dictated the term? of the receipts. That circumstance shows that they were unwilling to part with the money, except on the footing of payments made by or on account of Ingraham & Co., in satisfaction of the liability of those lessees. The giving and accepting of these receipts was a conclusive answer to any inference which might otherwise have arisen from the conversation which 1ms been referred to, and it was erroneous to submit to the jury a theory entirely hostile to the legal effect of these transactions.

The other conversation in which the defendants claimed consideration upon the question of a further lease, for their punctuality in the payment of the rent, did not materially strengthen the plaintiff’s case. The' payments of rent referred to were, of course, those made in behalf of Ingraham & Co.; for the defendants made no other payments. The nature and effect of these payments were determined by the co-temporary receipts, and were not at all changed by this loose reference to them in that conversation.

I am in favor of reversing the judgment against the defendants, and of ordering a new trial.

Ingraham, J.

There was no evidence showing a surrender of the lease to Ingraham & Co. The plaintiff proved the giving of such a lease, and during its term the presumption of law was that it continued in force between the parties. This presumption was further proved by the receipts given by the plaintiff for rent from the defendants down to the "quarter preceding that for which this rent was claimed. These facts were undisputed, and as matter of law established that there could be no implied hiring between the plaintiff and defendants.

The judge, therefore, erred in holding that there might be such an agreement, and in submitting to the jury the question whether such an agreement was made.

The judgment should be reversed. Johnson, J., was also for reversal.

Judgment affirmed.


author: Hogeboom, J.

text:
    The People ex rel. Isaac Ottman v. Henry A. Hynds and others, Com’rs of Highways of the Town of Seward.
    An order laying out a highway through improved, inclosed, or cultivated land, signed by only two of the commissioners of highways, and not reciting the fact that the third participated in the proceedings, or was notified to do so, is void.
    This is an appeal from the judgment of the general term of the supreme court in the third district, affirming a judgment in favor of the defendants on mandamus, rendered at the Schoharie circuit in November, 1858.
    In 1855, the relator sued out an alternative writ of mandamus, requiring the commissioners of highways of the town of Seward, Schoharie county, to open for public use a highway that he alleged had been previously duly laid out, or show cause to the contrary. The defendants made a return to the writ, showing for cause against opening the said road:
    1st. That the road was laid out by two commissioners, over cultivated land, without the certificate of twelve freeholders.
    2d. That the order requiring said road to be laid out is defective in being made by two commissioners without showing that the third participated in the proceedings, or was notified to do so.
    3d. That the road was laid out through a door yard and enclosure of the Lutheran church parsonage, necessary to the enjoyment of the buildings thereon; and that no notice of the proceedings was given to said church, its officers or the occupant of said lot.
    These allegations were all controverted in an answer put in by the relator to this return. The case was tried at a circuit, when a peremptory mandamus was awarded. This determination was reversed by the general term. (27 Barb. 94.) On the second trial at the circuit, before Justice Gould, without a jury, judgment was given for the defendants, and the relator appealed to the general term, where the judgment of the circuit was affirmed. He now appeals to this court.
    By an order dated September 28th, 1854, two of the commissioners of highways of the town of Seward undertook to lay out the highway in question, in that town. The order recites that notice was given “ that the undersigned commissioners of highways of said town would attend,” &c., to decide upon the application, and the order was signed by but two commissioners, when it was required by law that there should be, and there were in fact, three commissioners of highways in said town. It does not appear in the order that all the commissioners met, or that all were notified to attend the meeting, when the question of making the order was to be determined, and there is no recital upon that subject.
    The order referred to was made upon the certificate of twelve persons, who are described as freeholders. William J. Dunkle was one of the persons who signed this certificate, and it was shown that all the interest he had in any real estate, at the time of signing the certificate mentioned, was what he acquired under a deed from Isaac Hutton to Philip P. Wieting. The farm was designed for Dunkle, who made the purchase, or the agreement therefor, and paid $1,000 thereon. Hot being able' to pay the reidue of the money, Wieting advanced the same at his request, and having received a deed therefor for the purchase price of $4,200, executed a mortgage thereon for the balance, $2,200, but agreed to convey to Dunkle, on the latter repaying the $1,000 advanced, and paying the bond and mortgage. Proof of these facts was received by the judge against the objection and exception of the counsel for the relator.
    The relator offered to show, by parol, that all the commissioners actually met and deliberated at the time the order was made, which was ruled out.
    The judge, at the circuit, gave judgment for the defendants, “ for the insufficiency of the commissioners’ order.” No formal finding of facts was made by the judge, and no exceptions W'ere taken to his findings or his conclusions of law otherwise than a general exception to his decision that the defendants were entitled to judgment for the insufficiency of the order.

      John K. Porter, for the relator (appellant).

      H. Smith, for the defendants (respondents).
   Hogeboom, J.

The judgment should be affirmed.

I. There was not a certificate of twelve freeholders. Dunkle was not a freeholder. He had not the legal title to the farm. That was either in Hutton or Wieting. Dunkle could not convey. He had an equitable title which might perhaps be converted into a legal title. The statute, by freeholders, means such as have the legal title to real estate—such as are freeholders without a proceeding in court to make or declare them so.

II. If there was not a certificate of twelve freeholders, the subsequent proceedings would be entirely void. At all events the commissioners were not bound to proceed. (Exparte Clapper, 3 Hill, 458; People v. Commissioners of Seward, 27 Barb. 96; People v. Eggleston, 13 How. 123; People v. Supervisors of Greene, 12 Barb. 217.)

III. The notice of the hearing before the commissioners was a notice of the hearing before two commissioners alone. Such was the notice, and there is no proof to contradict it. More than those two would .have been incompetent to act, and the intervention of the third commissioner would have been without authority, and would have made the proceedings void. This is the fair construction of the order. There can be no proper presumption against this.

IV. The order itself is void, as made by two commissioners, without the intervention of a third, or notice to him recited in the order. (1 R S. 525.)

1. The statute (1 B. S. 525), was intended to make an absolute and universal rule for cases of this kind, and to prevent any presumptions whatever. See notes of revisers, 3 E. S. (2d ed.) 520, citing 9 Johns. 360, and laws of 1826, page 229, section 9, and intending to express the result of that decision and that statute. (Stewart v. Wallis, 30 Barb. 344; Fitch v. Commissioners of Kirkland, 22 Wend. 135; Contra, Tucker v. Rankin, 15 Barb. 471.)

2. The general statute authorizing a majority of public officers to act under certain circumstances, is limited to cases where no special provision is otherwise made. (2 E. S. 5th ed. 869, § 29, 555.)

3. The order must be sufficient on its face. Its defects cannot be helped out, or supplied by parol. (Fitch v. Commissioners of Kirkland, 22 Wend. 135; Broom’s Legal Maxims, 27, &c.; Smith on Statutes, 654, 655.)

The question is, whether the commissioners who were called upon to lay out the road, being presented with an order made by former commissioners, defective and insufficient on its face, were bound to proceed and consummate the proceedings. I apprehend they wei’e not required— even if they wez’e permitted—to search for paz*ol evidence to fortify a defective ordei’, and to show that in fact all the commissiozzers met and deliberated on the applicatiozz to lay out the road, or were notified to do so. The office would be a thankless one if a mandamus cozzld be issued against them in effect requiring the performance of such a service. They had a right to judge of the order by its contents.

Y. Even if the order alluded to was zzot incurably defective, the omission to produce a certificate of twelve freeholders is fatal, and makes the whole proceedings void.

The judgment should be affirmed.

All the judges concurz’ed, on the ground that the order did zzot show that all the commissioners met. Upon the other points they (except Weight, J., who was for affirmance generally), were in doubt, and did not agree with Hogbboom, J. Judgment affirmed.