author: Marvin, J. Selden, J.

text:
    The People, ex rel. Mirando Mitchell v. Isabella Simpson.
    To authorize the institution of summary proceedings to recover the possession of land, the relation of landlord and tenant must be shown to have existed between the parties by agreement, and not a tenancy created by the mere operation of la-tv.
    Where the affidavit upon which a summons was isstied, stated that J. M. leased the premises to M. M. for the term of ten years ; that M. M. entered as tenant, and assigned the lease to A. S., who assigned the same to H. and H. assigned it to I. S.; that upon the assignment by M. M. to A. S. the latter became entitled to the possession of the premises, and the former became the tenant of the latter ly sufferance; and that ly reason of said transfers and assignments, M. M. became the tenant at sufferance of the said I. S.; it was held that the facts stated did not show the conventional relation of landlord and tenant, but the contrary, and were not sufficient to give jurisdiction to the justice.
    Appeal from a judgment of the Supreme Court reversing upon certiorari summary proceedings to recover the possession of land. One Andrew Simpson made the affidavit upon which the justice issued the summons requiring Mitchell to remove, forthwith, from the premises or to show cause on the same day, January 29, 1862, at 12 o’clock noon, why the possession of the premises should not be delivered to the landlord. Simpson states, in the affidavit, that on or about the 16th day of September, 1859, by an instrument in writing under seal, one John Moadinger, as landlord, rented unto Mirando Mitchell, as tenant, the lot of land and premises situate &c. in the city of Hew York, for the term of ten years, commencing on the 1st day of October, 1859, and that said Mitchell, as tenant, entered into the possession of said premises, under said lease, and that on, the 12th day of October, 1859, the said Mitchell, by an instrument in writing under seal, for a valuable consideration, duly assigned, transferred and set over unto the deponent the said lease, under which said Mitchell occupied said premises, and that the deponent thereupon became entitled to the possession of said premises, and that the said Mitchell became the tenant of the deponent by sufferance, and the deponent, by an instrument in writing, under seal, bearing date October 14, 1860, sold, assigned and transferred unto Isabella Simpson the lease aforesaid, and by reason of such transfers and assignments aforesaid, said Mirando Mitchell became the tenant at sufferance of said Isabella Simpson. The deponent further alleged, “that said Mirando Mitchell has held and occupied the said premises as the tenant at sufferance of said Isabella Simpson, the landlord thereof, as aforesaid, from the said 16th day of October, 1860, until the expiration of the tenancy as hereinafter mentioned.” It was then stated that notice to quit was served, and that Mitchell held over.

      Quentin Me Adam, for the appellant.

      Coulter & Foster, for the ^respondent.
   Marvin, J.

These proceedings were summary, to recover the possession of the premises, under the revised statues, as amended, (see 3 R. S. 863, 5th ed.) by which any tenant or lessee at will or at sufferance may be removed &c when such person shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of his landlord. (§ 28.) By section 29, an oath, in writing, may be made by the landlord or other person named, “of the facts which, according to the preceding section, authorize the removal of a tenant,” ■&c. By the construction given to the statute it must appear that the relation of landlord and tenant existed by agreement, and not by mere operation of law—that the relation was conventional. (Benjamin v. Benjamin, 1 Seld. 383; Evertson v. Sutton, 5 Wend. 281; Roach v. Cosine, 9 id. 227; Sims v. Humphrey, 4 Denio, 185.) This position is not denied by the respondent, but it is claimed that the affidavit • made by Andrew Simpson brings the case within- the rule; thus the question for consideration is one of construction. What facts, fairly considered, does the affidavit establish? The affidavit is to be “of facts” which, according to the statute, authorize the removal of a tenant. The party to be removed must be a tenant or lessee, holding over and continuing in possession of the demised premises. In the present case, it is claimed that there was a tenancy at sufferance, which is defined to be where a lessee enters under a lease or demise, and the term runs out and he holds over. (Woodf. Land, and Ten. 183 ; Com. Land, and Ten. 9.) The relation of landlord and tenant is created by a lease, or demise, to which the landlord and tenant are parties, and this constitutes the conventional •relation between them. The facts stated in the affidavit from which it is claimed that such conventional relation is shown, are, briefly stated, that one Moadinger rented (leased) to Mitchell the premises for the term of ten years; that Mitchell entered as tenant, and a few days thereafter he transferred the lease to Andrew Simpson, who, a few days later, transferred the lease to Allen Hay, who transferred the lease to Isabella Simpson. These are the facts stated. It is alleged ■ that upon the assignment of the lease by Mitchell to Andrew Simpson the latter became entitled to the possession of the premises, and that the former became the tenant of the latter by sufferance; and it is also stated that by reason of the transfers and assignments aforesaid Mitchell became the tenant at sufferance of the said Isabella Simpson. These statements are not made for the purpose of showing any agreements between the respective parties, other than the transfers of the lease, but they are simply legal conclusions of the affiant, annexed to the facts stated, and are erroneous. The transfer by a. tenant of his term or lease does not establish between him and the transferee the relation of landlord and tenant, though he should remain in possession.

The affidavit contains an independent sentence, that Mitchell has held and occupied the premises as the tenant-at sufferance of said Isabella Simpson, the landlord thereof as aforesaid, from the said 16th day of October, 1860, until the expiration of such tenancy as thereinafter mentioned. Here is no new fact stated, nor was the sentence inserted for any such" purpose. It appears from a statement immediately preceding; that Andrew Simpson transferred the .lease to Hay on the 16th of October, 1860, and that Hay transferred it to Isabella Simpson, but it does not appear when the last transfer was made. We thus have the statement that-Mitchell has held the premises as tenant &c. from the said 16th day of October, 1860, &c., from which it maybe inferred that Hay transferred the lease to her October 16, 1860.

The allegation of Mitchell’s holding &c. as tenant of Simpson, “the landlord thereof as aforesaid,” is of the same character as the previous allegation that by reason of such transfers and assignments aforesaid, Mitchell became the tenant at sufferance &c. of the said Simpson.

It is very clear that the facts stated in the affidavit do not show the conventional relation of. landlord and tenant, but they show the contrary.

The facts stated are not sufficient to show jurisdiction in the justice;'and the-proceedings were properly reversed by the Supreme Court, and its judgment should be affirmed.

Selden, J.

The affidavit of Andrew Simpson, which constituted' the foundation of the proceedings for removing the alleged tenant, Mitchell, in this case; was insufficient to give the justice jurisdiction to institute those proceedings.

It has been often decided that, to authorize such proceedings, the conventional relation of landlord and tenant must be shown to exist between the parties, and not' a tenancy •created by the mere operation of law. (Evertson v. Sutton, 5 Wend. 281; Roach v. Cosine, 9 id. 227; Sims v. Humphrey, 4 Denio, 185; Benjamin v. Benjamin, 1 Seld. 383; Crary’s Pr. 452.) I am of opinion that Mitchell, by retaining possession of the leased premises after assigning his whole term therein, became the tenant, or quasi tenant at sufferance, of his assignee, or at least gave to the assignee the right to treat him as such tenant at his election. (Dyer, 62, a; Co. Litt. 57, b; Harg. note 5.) But those facts did not create the conventional relation of landlord and tenant within the meaning of the statute, as interpreted in the decisions above referred to. That relation may have existed between the parties, but it could only arise out of some agreement between them, independent of the assignment of the. term, and the retaining of possession hy the assignor. If any such agreement, express or implied, existed, the affidavit does not show it. If there was an express agreement it should have been set out; if an implied one, the facts from which the law would imply it should have been stated.

It is stated in the affidavit, after setting out the assignment of the lease, “that deponent [the assignee] thereupon became entitled to the possession of said premises, and the. said Mitchell became the tenant of deponent by sufferance.” And after mentioning the several transfers of the lease, by which it came ultimately to Isabella Simpson, it is said that, “by reason of such transfers and assignments, said Mirando Mitchell became the tenant at sufferance of said Isabella Simpson,” and that, he “held and occúpied the premises as the tenant at sufferance of said Isabella Simpson, the landlord thereof as aforesaid,” from the 16th of October, 1860, until the expiration of the tenancy as thereafter mentioned, (referring to the notice to quit.) All the statements are conclusions of law only, and do not strengthen the claimant's case. The landlord, or his agent, is required by the statute to “make oath in writing to the facts which * * * * authorize the.removal of the tenant.” (3 R. S. 5th ed. 836, § 29.) Perjury could not be effectually assigned upon these portions of the affidavit, if it should turn out that the relation of landlord and tenant did not exist; neither do they give the tenant an opportunity to deny by affidavit “the facts upon which the summons was issued,” which he is authorized to do, and to have the matter tried by a jury. (Id. 837, § 34.) The tenant might not be willing to swear, in his answer, to the law, whatever might be his opinion in regard to it; and he ought not to be required to do so, as the condition of making an issue for trial. The claimant, in all such cases, should state the facts out of which the legal conclusions arise, and not the legal conclusions alone. (Hill v. Stocking, 6 Hill, 314.)

The facts stated in this case were perhaps sufficient to support the conclusion that Mitchell was tenant by sufferance by operation of law, but a tenancy or quasi tenancy thus arising does not make a case within the statute, and if there existed facts creating a different relation, it rested with the claimant to show them.

The fair conclusion from the affidavit, as it appears, is that there were no facts beyond those which are stated, upon which- the inference of a tenancy was based. If there were none, then clearly the case was not within the statute.

The judgment of the Supreme Court should be affirmed.

All the other judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    Stephen Newton, Jun., executor &c. of Lewis Stanley, deceased, v. James Stanley 2d, and others.
    A testator, by Ms will, gave to two of Ms sons, L. and S., absolutely, the respective sums of $250 and $á00; and J., another son, being indebted to the testator, in the sum of $1000, secured by a mortgage, he directed J. to pay those legacies to his brothers, from the mortgage fund, and bequeathed to him the balance thereof.

      Meld, that the legacies to L. and S. were not specific, but general, the testator merely pointing out the fund from which they were to be satisfied; and that the estate of the testator was absolutely liable for their payment.

      Meld, also, that the executor, being liable to L. and S. for the amount of their legacies, respectively, could maintain an action to foreclose the mortgage óf J. for the benefit of the estate.
    Appeal from a judgment of the Supreme Court. The action was' brought to foreclose a mortgage executed by the defendant Stanley to Lewis Stanley, deceased, on the 9th of July, 1851, to secure the payment of the sum of $1000, in ten equal annual payments, with interest at five per cent per annum, the first payment to be made on the 1st of April, 1852. The whole of the principal sum of $1000, and interest thereon from April 1, 1852, except the sum of $80 paid on the 28th of June, 1856, was claimed to be due and unpaid; and it was not denied by the defendant.
    It was admitted, on the trial, that the defendant Stanley executed and delivered to Lewis Stanley, deceased, the mortgage set out in the plaintiff’s complaint, as therein alleged; and that after the execution and delivery of the mortgage, and on the 30th of April, 1857, Lewis Stanley died, leaving a last will and testament; which had been duly proved and admitted to probate and letters testamentary thereon duly issued, on the 28 th of October, 1857, to the plaintiff, who was named as executor in such will. The will was received, and read in evidence; and the sixth, seventh and eighth clauses thereof are as follows:

      “Sixth. I give and bequeath to my son Lewis H. Stanley the sum of two hundred and fifty dollars.

      Seventh. I give and bequeath to my son Solomon Stanley the sum of four hundred dollars.

      Eighth. I hereby direct my son James Stanley [the defendant] to pay the aforesaid sum of two hundred and fifty dollars to Lewis H. Stanley, and the aforesaid sum of 'four hundred dollars to Solomon Stanley, from the moneys due and to become due to me from him, the said James; and the said Lewis and Solomon are hereby authorized to collect and receive the same, with the interest, and at the rate and times the same shall become due from said James to me; and the balance of said debt owing to me by said James Stanley I hereby give and bequeath to him, the said James, forever.”
    This was all the evidence given. The defendants’ counsel then moved that the complaint be dismissed, and «the plaintiff nonsuited, for the following reasons:
    First. That the sixth, seventh and eighth ‘items' or provisions of the will entirely disposed of the mortgage in question, and charged the defendant James Stanley 2d, who is the mortgagor, personally with the payment of the two specific legacies which were directed to be paid out of the moneys secured by said mortgage, and the balance of said mortgage given to the defendant.
    Second. There is no allegation or proof, on the part of the plaintiff, showing that there was not sufficient assets, over and above the legacies, to pay the debts, nor that the defendant James Stanley has not complied with the directions given him in the eighth provision of said will.
    Third. The will directs the defendant Stanley to pay, and authorizes the legatees to collect and recover from him, the legacies named in the sixth and seventh provisions of said will, which deprives the- executor of any right, interest or control over the moneys secured by said mortgage.
    The court refused the motion for a nonsuit; to which ruling and decision the defendant excepted.

      The judge at special term found the facts of the giving of the mortgage; the making of the will by Lewis Stanley, deceased, in his lifetime, containing the provisions above set forth; the death of Lewis Stanley on-the 30th of April, 1857; the probate of the will, and the issuing of letters testamentary to the plaintiff, on the 28th of October, 1857, as sole acting executor of the will; that the defendant James Stanley 2d paid the interest on said mortgage, to Lewis Stanley, up.to the 1st of April, 1856, and also the sum of $80 on the 28th of June, 1856; and that no other payment has been made on said mortgage; and that no set-off or counterclaim exists, in favor of the defendant J ames Stanley, against said mortgage, or any part thereof, except such as issues, out of the bequest to him given by said will.
    From these facts his conclusions of law were:
    First. That the mortgage aforesaid is-a lien upon the premises described therein, in the hands of the plaintiff, for the amount of $650 and interest thereon from October 28, 1858, and should be enforced to that extent; and that $650 is due thereon from said James Stanley 2d to the plaintiff, as such executor, with interest from said 28th October, 1858.
    Second. That the said mortgage should not be enforced against the said premises, or against the defendant James Stanley 2d, for any further amount than the $650 and interest from October 28,1858: no want of assets to pay the debts of said Lewis Stanley, deceased, being alleged or proved in this action.
    He therefore directed the usual decree for a foreclosure and sale of the mortgaged premises, for the amount of $725.85, (being the said sum of $650 and interest thereon from October 28,1858, to the date of the decision,) and interest thereon from this date, and the costs of the action to be taxed; with a decree over against the said James Stanley 2d for any deficiency. The defendant Stanley excepted to each and every part of the conclusions of law. Judgment being entered, the defendant Stanley appealed to the general term, where the same was affirmed. lie then appealed to this court.

      James Stanley, in person.

      J. T. Fairchild, for the respondent.
   Wright, J.

The appellant has no reason to complain of the disposition of the case in the court below. _ The judgment was more favorable to him than he had any legal right to expect; being only for that part of the mortgage debt not forgiven him by the will of his father. It was neither alleged nor proved by the defendant that the whole moneys due upon the mortgage were not required to pay the creditors of the testator. It was not for the executor to show affirmatively a deficiency of assets, to entitle hiin to maintain the action.

In any view of the case, the defendant was not in a situation to contest the right of the executor to take proceedings to collect the debt. Whatever may have been the relative rights of the executor and the legatees, Lewis H. and Solomon Stanley, in respect to the mortgage, under the will of Lewis Stanley, the legatees were not questioning the right of the executor to foreclose the mortgage. The defendant could raise no question, except, perhaps, in relation to that part of the mortgage debt which was given to him; and not even that, if there was a want of assets to pay the creditors of the testator.

The personal estate of Lewis Stanley (including the mortgage debt) vested in the executor from the moment of his death. He had absolute centrol over all of it, including that specifically bequeathed, and the power to sell and dispose of the same for the payment of debts. The executor alone could foreclose the mortgage, or take proceedings for its collection. The direction in the eighth clause of the testator’s will, to the defendant to pay to Lewis and Solomon Stanley their respective legacies from moneys secured by his mortgage, and the authority to the legatees to collect and recover the same from him, could not control the action of the testator’s representative in collecting and administering the assets of the estate. Nor is it claimed that any such effect would result from the provision, unless the bequests to the Stanleys are specific bequests of the debt, or the mortgage. If they are general legacies, the executor would be bound to pay them; and having the legal title, and the defendant being indebted upon the mortgage, his right to recover can not be questioned.

There is no ground for alleging that the legacies to Lewis H. Stanley and Solomon Stanley are specific. They are not bequests of the mortgage, or of the debt secured thereby, or of any portion thereof. The testator bequeaths to them two several sums of money absolutely; and the subsequent provision for-their payment is demonstrative only. They are general legacies, the testator pointing out the fund to satisfy them, and not bequests of a specific ■ debt. Had the defendant fully paid the mortgage, to the testator, in his lifetime, the legacies would not have been adeemed by such payment; which would have been the case, if the bequests had been, in terms, of portions of the mortgage debt.

■The intention of the testator is apparent. By the sixth and seventh clauses of his will, he gives to two of his sons, absolutely, the respective sums of $250 and $400. The defendant, another of his sons, is indebted to him over $1000, secured by the mortgage in question. He directs the defendant to pay the legacies to his .brothers from the mortgage fund, and bequeaths to him the balance thereof. There is no indication of an intent that the legacies to Lewis and Solomon should fail, if for any reason the defendant refused to obey the direction, or the particular fund pointed out for satisfying them should, from any cause, prove inadequate. The only legal effect of the eighth clause of the will is a bequest to the defendant of the balance of his debt. .Courts are not inclined to hold a legacy to be specific rather than general, unless its terms clearly require such a construction. There is nothing in the terms of the bequests to Lewis and Solomon Stanley, or in the entire will of their father, requiring us to construe them as specific; but on the contrary they are general bequests of money, and the estate of the testator is absolutely liable for their payment. (Walton v. Walton, 7 John. Ch. 262; Roberts v. Pocock, 4 Ves. 150; Kerty v. Potter, Id. 750; Deane v. Test, 9 id. 146; Coleman v. Coleman, 2 id. 639; Tifft v. Porter, 4 Seld. 516.)

The legacies being pecuniary and not specific, the legatees could not recover them upon the mortgage. bTor could they recover them from the defendant in an action of assumpsit, as he has never consented to the provision made for him in the will, or promised to pay them, There is no privity between Lewis and Solomon and the defendant, upon which the former could recover. But they have not sought to collect the legacies from the defendant, but look to the executor for their payment. The defendant can not suffer by paying his debt to the executor. Indeed he could pay it to no one else, safely,

The judgment of the Supreme Court should be affirmed.

All the Judges concurring,

Judgment affirmed.


author: Wright, J. Balcom, J.

text:
    A. T. Blackmar and W. P. Irwin, Jun. v. Edwin Thomas.
    The defendants consigned and shipped to the plaintiffs a cargo of corn, to be sold on commission, at the same time drawing upon the plaintiffs, on account of the shipment, a draft at fifteen days, for $3300, which the plaintiffs accepted and paid. The corn being subsequently sold, by the plaintiffs, under the directions of the defendant, and the proceeds credited to the account of the acceptance, there remained a balance of $556.29 due to the plaintiffs, which the defendant promised to pay. JECeld that the plaintiffs as factors, having advanced money .on account of the goods, had a right to sell the same for their reimbursement, without any special instructions from their principal; and that for the amount of the deficiency, an action would lie, without any averment of a certain balance due, of an express promise to pay the same, and of a breach óf such promise.
    Appeal from a judgment of the Supreme Court. The action was to recover the amount of an over-draft hy the defendant, on a cargo of corn shipped by him from Buffalo to the plaintiffs, as consignees, at Albany, for sale1 on commission.
    The complaint averred that the plaintiffs were partners, as produce commission "merchants, at Albany, under the name of Blackmar & Irwin. That the defendant, on the 31st July, 1857, at Buffalo, consigned and shipped to the plaintiffs, by canal, a cargo of 4500 bushels of corn for storage and for sale, when directed, on commission. That at the same time the defendant drew at fifteen days, on the plaintiffs, for $3300, on account of such shipment, to be charged as advised. That the plaintiffs for the defendant’s accommodation accepted, and on the 18th August, 1857, for his accommodation and at his request paid said draft, and charged to account of such shipment, as advised by the defendant. That the cargo arrived on the 11th August, 1857, and pursuant to the defendant’s directions was first put in- store, and afterwards, and on the 12th September, 1857, sold. That the net proceeds of the sale were $2743.71, and were credited .to the defendant on account of thé acceptance and payment of draft, and left a balance of $556.29, for which the defendant was indebted to the plaintiffs. That being so indebted the defendant, 'on the 18th September, 1857,. promised to pay this balance to the plaintiffs. And that although often requested the defendant has not paid said balance or any part thereof, but is justly indebted to the plaintiffs therefor, for which, and interest, they demand judgment.
    To this complaint the defendant demurred, assigning as ■ ground therefor that the complaint did not state facts suffi- ■ cient to constitute a cause of action.
    The plaintiffs applied, on notice, to a justice of the Supreme Court at chambers, for judgment in their favor, against the defendant, on the ground of the frivolousness of the demurrer. The demurrer was adjudged frivolous, and judgment ordered against the defendant for the amount claimed in the complaint, with costs; without prejudice to the defendant’s right to apply at special term for leave to answer.
    ifo application being made at special term the judgment was entered, and the defendant appealed therefrom to the court at general term, when the same was - affirmed. The defendant appealed to this court.

      F. F. Cornwell, for the plaintiffs.

      John Hubbell, for the defendant.
   Wright, J.

This appeal is without merit. The complaint alleges that on the 31st of July, 1857, the defendant consigned to the plaintiffs, at Albany, to be stored and sold ■ when directed, 4500 bushels of corn; and at the same time drew on the plaintiffs, at 15 days, for $3300, which bill was, before maturity, accepted by the plaintiffs for the defendant’s accommodation; and at its maturity, for the accommodation and at the request of the defendant, they paid the same, and, as advised by the defendant, charged such payment to the account of .said consignment, to be paid to them with interest whenever the cargo of corn should thereafter be sold; that in pursuance of the directions of the defendant, the cargo of corn on its arrival at Albany on the 11th of August, 1857, was stored by the plaintiffs, and was afterwards, on the 12th of September, sold by them, the net proceeds thereof, after payment of freight, storage, weighing, insurance, the commissions of said plaintiffs, and the interest on the draft -accruing after maturity, amounting to the sum of $2743.71; that said net proceeds were applied by the plaintiffs in account with the defendant towards the said sum of $3300, and then there remained due to the plaintiffs, upon said account, a balance of $556.29; that being so indebted, the defendant, in consideration thereof, afterwards, to wit, on the 18th of September, 1857, promised to pay to the plaintiffs the balance as1 aforesaid; and the plaintiffs demand judgment for such balance.

There is here a clear cause of action disclosed for the deficiency of the proceeds of the consignment to pay the draft; without regard to the concluding allegations of the complaint, of a certain balance due, and of an express promise to pay the same, and of a breach-of such promise. The case is stated of the consignment of a cargo of corn and the making of a draft against the consignment, which the plaintiffs accepted and paid; the sale of the property consigned, and a deficiency in the fund arising therefrom, to reimburse the plaintiffs for the money advanced, as is alleged, for the accommodation and at the request of the defendant. Treating the advance, however, as made upon the faith of the consigned cargo, and in anticipation of its avails the plaintiffs as factors, after exhausting the fund arising from the consigned property, had the legal right to resort to the defendant, as principal, for the balance due. Here it is alleged that the proceeds of the consigned property arising from its sale were insufficient to pay the advances. It is said that the property was sold without waiting for the direction or authority of) and without' notice to, the defendant. This, By no means, appears clear from the complaint; but if it had, it cotild not alter the rights of the parties. It is averred that the -corn was consigned to the plaintiffs to be stored, and when directed by the defendant, to be sold on commission; and that such corn was,,in pursuance of such directions, stored and sold, the deficiency ascertained, and an expressj promise made by the defendant to pay such deficiency. Had it, however, clearly appeared that the terms of the consignment were to store. and" sell when instructed by the defendant, and- the plaintiffs sold, a month afterwards, without any special instructions' that fact alone would not deprive them of the right to call upon their principal to make good a deficiency. " In Marfield v. Goodhue (3 Comst. 62,) it was held that a factor who has made advances upon goods after their receipt by him may proceed to sell, notwithstanding instructions from his principal to the contrary; provided the latter,1 after reasonable notice, fails to repay his advances; and in the case of Brown v. McGraw, (14 Peters, 470,) the Supreme Court of the United States held that the party, under such instructions, might sell in defiance of his instructions, without even calling upon the principal for reimbursement. It is not, however, necessary in this case to affirm the principle of the latter decision to its fullest extent.

The complaint was clearly sufficient, and the demurrer frivolous. The judgment of the Supreme Court should be affirmed.

Balcom, J.

It can hardly be said that the complaint shows that the sale of the cargo of corn by the plaintiff's was made in pursuance of the directions of the defendant; yet it does show that there was a balance of $556.29, besides interest, due the plaintiffs after applying the net proceeds of the corn in payment of the advances they made for the' accommodation of the defendant, in taking up his draft; and that the defendant, being indebted to the plaintiffs for such balance, and iif consideration thereof afterwards, on a day named, promised the plaintiffs td pay such balance to them. ’

It is clear that the plaintiffs accepted and paid the defendant’s draft upon the faith of the corn the latter consigned to them, and that the proceeds of the corn were insufficient to reimburse them, into $556.29 for the money they advanced in paying the draft.

There can be no doubt that these facts made the defendant liable to pay the plaintiffs such deficiency, if the sale of the corn was either authorized or ratified by him. (Gihon v. Stanton, 5 Seld. 476.) And the decision in Brown v. McGraW, (14 Peters’ Rep. 479,) goes farthér than this. But it is unnecessary now to determine whether that decision should be followed by this court.

When the defendant promised to pay to the plaintiffs the balance of their' advances, over and above the net proceeds of the corn, he ratified the sale of the corn by the plaintiffs. The inference from such promise is that the defendant was satisfied with the sale; and he can not be allowed now to question the legality of the sale, unless his promise was fraudulently obtained, or was made in ignorance of facts that would justify him in repudiating it; neither of which can be inferred from the complaint.

The same strictness in pleading is not required tinder' the code that was exacted by the courts under our former system of practice. (See 3 Seld. 476; 19 N. Y. Rep. 281.) The code expressly enjoins, that “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.” (§ 159.)

These views lead to the conclusion that the complaint states facts sufficient to constitute a cause of action; and that the judgment of the Supreme Court, overruling the demurrer to the same as frivolous, should be affirmed with costs.

Esiott, J. dissented.

Rosekranb, J. was absent.

All the other judges concurring with Wright and Balcom, Justices, . '

Judgment affirmed.


author: Selden, J.

text:
    Moses Hamilton and others v. John McPherson and others.
    Damages for breaches of contract are only those which are incidental to, and directly caused by, the breach, and may reasonably he presumed to have entered into the contemplation of the parties; and not speculative profits, or accidental or consequential losses.
    The law imposes upon a party subjected to injury from a breach of contract by the other party, the active duty of making reasonable exertions to render the injury as light as possible. And if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him.
    In an action against common carriers, to recover damages for an injury to a quantity of oats caused by their heating and becoming mouldy in consequence of the failure of the defendants to transport them from Canada, where they were in store, to Oswego, within the time ^required by their contract, it appearing that notwithstanding the delay of the defendants, the oats would not have been injured had they been properly cared for by the custodians thereof, by handling over or stirring them; it was held that the duty of taking care of the grain rested upon the plaintiffs, or their agents the custodians thereof, and not upon the defendants; no responsibility, in this respect, attaching to the latter until they took possession of the property. And that they were not answerable for the damages which resulted from the failure to bestow the necessary care.
    This was an action against the defendants as common carriers, in which the • plaintiffs claimed damages for injury to a quantity of oats, caused by their heating and becoming mouldy, during the months of June and July, 1851, in consequence of the failure of the defendants to transport them from Perth, in Canada, to Oswego, within the time required by their contract. There were two counts in the complaint, in one of which it was alleged that the defendants engaged to deliver the oats at Oswego in the month of May, at five cents per bushel, freight; and in the other that they engaged to deliver for the same amount of freight, without fixing any time of delivery. In addition to damages for the injury to the oats, the plaintiffs also claimed damages for the expense of taking care of them after their arrival, and for loss of profits by the fall in price of oats during the delay.
    The defendants by their answer denied the facts alleged in the complaint, and stated that the injury to the oats occurred before they came to the defendants’ possession, and before the time arrived for their transportation.
    On the trial at the Oswego circuit in February, 1858, .the plaintiffs proved by a correspondence between their agents, Colver, Eathbun & Co., and the defendants, commencing March 18, and ending April 3, 1851, a contract to carry the oats and other grain, amounting to thirty thousand or forty thousand bushels, from different places in Canada named in the correspondence, to Oswego, at five cents per bushel, but no time was fixed for their delivery. Orders for the delivery of the grain Were sent to them, and it appeared to have been delivered satisfactorily, excepting a lot of about four thousand four hundred bushels of oats which were* at Perth, in the store house of McDonald & Hall. Ho order for the delivery of those oats were sent to the defendants until the 24th of May, when Colver, Eathbun & Co. wrote to them, complaining of the delay in delivering the property of other persons, and inclosing an order on McDonald & Hall for the oats in their possession, and saying, “ please advise us if you will send down for the oats without delay.” This letter was answered by the defendants on the 27th of May, when they said, “ The cargo of oats from Perth shall be sent for on the return of out boats, that started for Mr. Hooker’s oats at that place last evening, probably the close of this week.”
    The oats failing to come forward, the. defendants were written to again on the 24th of June, as follows: “The owners of the oats got at Perth, of McDonald & Hall, are very desirous of having them brought forward at once. You will be so kind as to have them started (if not done so) at once, or as soon as practicable.” On the next day the defendants answered, “We were not aware that all the oats had not come from Perth, and now dispatch a steamer with three barges to Pike Falls, with instructions to take all the freight they can find at Perth.”
    The defendants were again written to on the 28 th of June as follows: “We have received from McDonald & Hall, of Perth, notice that they are very desirous that the oats, some three thousand- or four thousand bushels, should be removed at once5 as they say great danger is apprehended that the oats will take injury by leaving so large a quantity together at this season. Also, the owners or purchasers, Messrs: Sweet & Hamilton, complain tliat they want the pats badly, having sold them on contract and the price having fallen. They fear trouble and loss for want of them before.
    We find by reference that we sent you an order on the 24t,h of May for their oats; that we have your reply that they should come forward at once.- If any damage, the parties will look to you for it. We have done our duty here, fully.”
    The defendants answered this letter on the first day of J uly as follows: “We beg to inform you, in reply to your letter of the 28th, that we never received an order from you on Messrs. McDonald & Hall. We, however, sent them boats the instant we learned that you had not got all the oats you ' expected from Perth, and doubtless they will be here this week.”

      The oats were taken by the defendants’ boats, from McDonald & Hall’s store house at Perth, on the 2d, and delivered to Colver, Rathbun &• Co., for the plaintiffs at Oswego, on the 10th or 12th of July. They were heated, mouldy and considerably damaged; the injury having occurred from their remaining in the bins at Perth, during the hot weather in June.
    There was no negligence or unreasonable delay in delivering the oats,, after the 27th of June, when the vessels started from Kingston for that purpose. It was shown that oats could be kept in bins through the summer without injury, if they were properly cared for, but they required handling over or stirring, to keep them from heating.
    The judge charged the jury, that if they should find that the oats became heated and damaged after the defendants were bound to enter upon their contract, and they became heated and damaged by reason of the delay, then they were liable to respond in damages, and were liable to the extent of such injury and damage. To this part of the charge the defendants excepted.
    The defendants’ counsel requested the judge to charge that the defendants were not liable to respond in damages for the injury sustained by the oats while they were at Perth, and before they came to the possession of the defendants. The judge refused so to charge, but instructed the jury on this point, “that the defendants were liable to respond for any damage the oats sustained after the defendants should have entered upon the performance of the contract.” To the refusal and to the charge on this point the defendants’ counsel excepted. „
    The jury found a verdict in favor of the plaintiffs for seven hundred and thirty dollars, for which amount, with costs,-a judgment was entered against the defendants, which was reversed on appeal by the defendants to the general term, and a new trial ordered. From this judgment the plaintiffs brought' the present, appeal, with a stipulation that if the judgment appealed from shall be affirmed, judgment absolute may be entered against them.

      J. A. Hathaioay, for the appellants.

      Grant & Allen, for the respondents.
   Selden, J.

A good cause of action was shown on the part of the plaintiffs against the defendants, for neglecting to proceed with reasonable diligence iff forwarding the oats after the notice which they received on the 27th of May, and' the only question which the case presents relates to the amount of damages for which the defendants are responsible.

. The rule applicable to such cases has been briefly and accurately stated by Mr. Powell, as follows i “ Damages for breaches of contract are only thoge which, are incidental to, and directly caused by, the breach, and may reasonably be presumed to have entered into the contemplation of the parties; and not speculative profits, or accidental or consequential losses.” (Powell on Ev. ch. 21, § 54, p. 216; Hadley v. Baxendale, 9 Wels. H. & G. 341; Griffin v. Colver, 16 N. Y. Rep. 494, 5; Code Nap. §§ 1150, 1151; Mayne on Dam. 15.) I think the instructions given to the jury in this case, which were excepted to, can not be reconciled to this rule. The damages to the oats, from heating, were not “incidental to, or directly caused by,” the delay in moving them. The delay, if 'proper care had been bestowed upon the oats, would not have resulted in their injury. The direct cause of injury, therefore, was the want of care. The necessity for extra care arqse from the delay, and the expenses attending such necessary care, if it had been bestowed, would have been the direct result of the defendants’ breach of contract. For such expenses they would have been answerable, but were not answerable for the damages which resulted from the failure to bestow that care. The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him. (Miller v. Mariners’ Church, 7 Greenleaf, 51; Shannon v. Comstock, 21 Wend. 461; Heckscher v. McCrea, 24 id. 309; Clark v. Marsiglia, 1 Denio, 317; Spencer v. Halstead, Id. 606; Loker v. Damon, 17 Pick. 284.)

If the injury to the oats had been the necessary consequence of the delay, and the contract had been entered into vby the defendants in view of that consequence, in case of their failure in performance, (Hadley v. Baxendale, 9 Exch. supra,) they would have been responsible for such injury, because it would have been the direct result of their breach of contract. The case then would have been parallel to that of the failure of a railroad company to take milk or vegetables to market, in accordance with previous contract, and other like cases suggested by Mr. Justice Mullen in his dissenting opinion in this case. In such cases, however, the injured parties could recover nothing for damages, which, by reasonable diligence on their part, could have been prevented. (Miller v. Mariners’ Church, supra.)

The burden of proving that the damages which have been sustained in such cases could have been prevented, unquestionably rests upon the party guilty of the breach of contract. (Costigan v. The M. & H. R. R. Co., 2 Denio, 609.) As I understand the case, such proof was made by the defendants here; but whether the fact was conclusively proved or not, there was sufficient evidence to call for the submission of that question to the jury, which was taken from their consideration by the positive instruction of the judge, that the defendants “were liable to respond for any damage the oats sustained after the defendants should have entered upon the performance of the contract.”

It is not material to inquire whether the duty of taking care of the oats rested upon the plaintiffs, who were the owners, or upon McDonald & Hall, who were the custodians of them. It is sufficient for the present case that it rested upon one or the other, and not upon the defendants. Ho responsibility in this respect attached to the defendants, until they took possession of the property.

The judgment of the special term was properly reversed, and final judgment must be rendered against the plaintiffs, in pursuance of their stipulation.

. Denio, Oh. J. and Davies, Weight, Emott and Marvin, Justices, concurring,

Ordered accordingly.


text:
    John W. Hathorn v. Martha Ely, adm’x &c. of Anson C. Ely, deceased.
    Where a common carrier upon the canal received on board his boats a quantity. of flour, in barrels, agreeing to deliver the same, in good order, to the consignees, at New York, and to let it remain on board ninety days after its arrival in New York, without extra charge; and upon the flour arriving at New York the consignees.refused to receive it; it was held, that when the flour reached its destination, in good order, and a delivery was tendered to the consignees, their refusal to receive it put an end to the plaintiff’s responsibility as carrier, and from that time he held it as the bailee of the owner, and was required to exercise ordinary care, only, in its protection; and was not liable for an injury to it which occurred without fault on his part.
    Appeal from the Supreme Court. The action was to recover freight for carrying flour and oats in ‘canal boats, from Elmira to the city of Hew York, in the fall of 1853.
    The plaintiff received the flour and oats (950 barrels of flour and 543 bushels of oats) on board of his two canal boats, at Elmira, for which he executed and delivered to the original defendant, Anson G. Ely, two receipts, acknowledging the receipt of those articles, in good order, and promising t6 deliver them in like good order to Jones & Ferguson, Few York, at the rate of sixty cents per barrel, freight, on flour, and ten cents per bushel on oats; and each receipt concluded as follows: “And I do agree to let the above flour remain on board ninety days after its arrival in Few York, without extra charge.”
    The defense interposed was, that the plaintiff did not deliver the flour in good order, but that it was injured before delivery, through the plaintiff’s negligence, to an amount exceeding the amount of freight.
    The referee, before whom the cause was tried, found that the plaintiff transported the flour and oats to Few York, where they arrived, safely and in good order, in the boats on board which they were shipped, on the 24th of Fovember, 1853. That on the 28th of Fovember the plaintiff informed the consignees, Jones & Ferguson, of the arrival of the boats, that the flour and oats were ready to be delivered, and where the boats lay; which was at pier Fo. 7 East river, a usual place for discharging such freight. The consignees were also requested to take off the flour. They replied that they had not heard from the, defendant and had no authority to receive it, but were daily expecting to hear from him. This request ivas repeated on several days, and finally J. & F. ■were urged to receive the flour, or to make some arrangement in regard to it, as the harbor master refused to allow the boats to remain longer in the slip; to which they.made the same answer as before. The flour could have been delivered in one day, if there had been any one to receive it. On the 1st of December the boats were pushed out of said pier by persons acting under direction of the harbor master, who. alleged that they had remained as long without unloading as the rules of the harbor allowed. The plaintiff immediately went in pursuit of a steam tug, to tow the boats to a place of safety, which he procured;. but in the mean time one of the boats had been struck by another vessel and injured, so. as to cause her to leak badly. e She was towed to another dock, and the cargo removed and placed upon the dock with all reasonable dispatch, from which place it was taken by Jones & Ferguson at the defendant’s request. The flour was wet and damaged by the leaking of the boat, in consequence of the collision, to the amount of $976.75. Such damage was not caused by any negligence, or by the want of due care and diligence on the part of the plaintiff. The defendant did not give any instructions as to the delivery of the flour, or whether he would elect to have it remain on the boats, until after the boats had been ordered out of the slip by the harbor master.
    The referee found as matter of law, that the defendant was to have the privilege, if he desired it, of leaving the .flour on board the boat, as a warehouse, for the space of ninety days, after her arrival in New York; that the plaintiff was not to wait for his freight, nor to remain subject to the stringent liability of' a common carrier during that period; that the freight was earned, and the liability of the plaintiff as a common carrier was discharged, as soon as he had arrived in the port of New York, had reported his arrival to the consignees, and waited a reasonable time to deliver his cargo, or to receive the instructions of the defendant, whether .he would or would not leave the flour on board. That as the consignees had declined for several days to receive the flour, the plaintiff became the mere depositary^ or bailee of the same, for the defendant, and was so at the time when the damage was done, and as such bailee liable only for gross negligence. He rejected the defendant’s claim for damages, and held that the plaintiff was entitled to recover the freight, and judgment was entered accordingly.
    The defendant excepted to the report, and on appeal to the Supreme Court, at general term, the judgment was affirmed, and the defendant brought the present appeal. Since the appeal the original defendant had died, and" the administratrix of his estate had been substituted as defendant, in his place, by order of this court.

      Robertson & Fassett, for the appellant.

      John H. Reynolds, for the respondent.
   Selden, J.

If this case were to be decided by the rules which determine the ordinary duty of common carriers, when consignees refuse or neglect to receive goods, there could be no doubt that the plaintiff’s responsibility as a carrier remained at the time when the flour was injured, and he would be held liable for such injury, though it happened without his fault. The refusal of consignees to receive goods, authorizes the carrier to relieve himself from the stringent liability which he is under as such, by depositing the goods in some suitable warehouse, if any such can be found, or by making some equivalent disposition of them, for the use of the owner. Occupying the position of carrier merely, his responsibility as such continues until this is done. (20 N. Y. Rep. 259.) But it-would not be a reasonable construction of the contract upon which the plaintiff received the flour, to hold that he was to remain an insurer of its safety for ninety days after the duty of carrying it should be completed; in case the owner-elected to have it remain that length of time upon the boats. Its fair interpretation is, that when the duty of carrying should terminate, an election by the owner to postpone the delivery for ninety days, would convert the carrier into a mere bailee. When, therefore, the flour reached its destination in good order, and a delivery was tendered to the consignees, their refusal to receive it put an end to the plaintiff’s responsibility as carrier, and from that time he held it as the bailee of the owner. He had a right to treat the refusal of the consignees as equivalent to an election on the part of the owner to have the flour remain on the boats during the ninety days; although he might, in the absence of an express election, have relieved himself from all responsibility, by placing it in store. Whether the plaintiff held the flour in pursuance of his contract, to allow it to “remain on board ninety days,” or, as waiting the election of the defendant whether it should so remain, he was required to exercise ordinary care only, in its' protection, and was not liable for an injury to it which occurred without fault on his part.

The judgment of the Supreme Court should be affirmed.

All the Judges concurring,

Judgment affirmed.


author: Denio, Ch. J.

text:
    Garrit H. Striker v. Winifred Mott and others.
    By a will made in 1815 the testator devised all his real estate to his three grandchildren, Gr. H., A. and W., in fee, to he disposed of by his executors &c. as follows: “The said real estate shall not, at any time hereafter, be sold or alienated ¡ but my said executors, or the survivor of them, &c., shall from time to time lease or rent the same on such terms as they shall deem most advantageous to my said heirs, and the rents, issues and profits of the same shall be annually paid by my said executors &c. to my said heirs, in equal proportions; and if either of my said heirs, or their children, shall phooSe to occupy any part of my said real estate, he, she or they shall have a preference to any other applicant, on paying a reasonable rent for the same.” It was then declared that if any of his grandchildren should die without issue, the share of the one so dying should go to the survivors or survivor, and the heirs of such survivor, forever. Also that his wife, during her widowhood, should occupy his dwelling house together with five acres of land adjoining, which, together with the fences, was to be kept in repair by the executors. At the date of the will W. had several children. The other grandchildren were unmarried. The testator had then no other descendants. After the death of the testator a partition of the land between the devisees was had, under the order of the court, and mutual deeds of release were executed by them, and they thereafter enjoyed in severalty according to the partition. A., one of the devisees, died, without issue, in 1860, leaving a will, by which she .devised all her estate to S- and others.

      Held, 1. That taking the will all together, the successive estates in each third part of the land were limited as follows: (1.) To the trustees, for the life of the grandchild for whose benefit that one third was devised, remainder ' to the issue of that grandchild, if he or she should have issue, in fee: but if he or she should die without issue living at his or her death, (which last qualification resulted from the subsequent limitation to the survivor of the grandchildren,) then (2.) Remainder to the grandchildren and the survivor of them.
    2. That this second remainder was contingent, though it would have been vested, if the first remainder had been for any estate less than a fee simple.
    3. That hence G. H. and W. had no estate which-they could convey to A. by their partition deed; and hence also, the devisees of A. took nothing by the devise in their favor, contained in her will.
    Appeals from the Supreme Court. John Hopper died in 1819. The material provisions of .his will were as follows : ££I give all my real estate to my three grandchildren, G-arrit H. Striker, Ann Striker, and Winifred the wife of Jordan Mott, and their heirs, forever. The said real estate so devised to my said grandchildren to be disposed of as follows, by my executors hereinafter named, and the survivor of them, or the executors or administrators of such survivor, that is to say: the said real estate shall not at any time hereafter be sold or alienated; but my said executors and the survivor óf them, or the executors or administrators of such survivor, shall from time to time lease or rent the same on such terms and for such rent as they may deem most advantageous to my said heirs, and the rents, issues and profits of the same shall be annually paid by my said executors and the survivor of them, or the executors or administrators of such survivor, to my said heirs in equal proportions; and if either of my said heirs, or their children lawfully begotten, shall choose to occupy any part of my. said real estate, he, she or they shall have a preference to any other applicant, on paying a reasonable rent for the same. And in case any of my said heirs and devisees shall die without lawful issue, then and in such case my will is, that the share of the one so dying shall be and enure to the sole use, benefit and behoof of my said grandchildren, and the survivor- of them, and the heirs of such survivor, forever.” He further provided that his wife, during her widowhood, should occupy his dwelling house together with five acres of land adjoining, “which, together with the fences, shall be kept in repair by my said executors,” &c. He appointed three executors. At the date of the yvill Mrs. Winifred Mótt had several children. The other two grande children were unmarried. The testator then had no other descendants.
    Soon after Hopper’s death his granddaughter Ann Striker filed a petition in the Hew York Mayor’s Court, under the partition act of 1813. (2 E. L. 507.) Her brother and sister were made parties to this proceeding, but the executors were not parties. Partition of all the lands now in question was ordered and made accordingly, by consent of the defendants. Mutual deeds of release were thereupon executed. The releases recited the devise to the grandchildren, but no other part of the will. They also recited the proceedings in partition, but they contained no express covenants nor any words from which a covenant could be implied. The grandchildren thereafter enjoyed in severalty, according to the partition. Ann Striker died without issue in 1860. By her will she devised all her estate to E. J. Swords and others. All Hopper’s executors having • died, J. B. Wilson was appointed trustee in their place. Gar'rit H. Striker, after the death of his sister Ann Striker, brought his action for partition in the Supreme Court against Mrs. Mott and Wilson, the trustee, claiming that on the death of Ann Striker without issue the third part of Hopper’s estate became vested in himself and his sister Mrs. Mott, in fee simple, by virtue of the limitation over in Hopper’s will. Swords, the executor, and the other devisees of Ann Striker, brought a cross action, claiming that she took under the will a fee simple. Wilson, the trustee, brought another action, to establish the trusts of Hopper’s will. He admitted the title of Garrit H. Striker, with a single qualification. He insisted that by a proper-construction of Hopper’s will the executors of Hopper took a trust term in all the shares, until the death of the last suf* vivor of the three grandchildren.
    The Supreme Court in the first district gave judgment in the three actions, in favor of Garrit H. Striker. The devisees of Ann. Striker appealed to this court. Wilson, the trustee, also appealed. (See Striker v. Mott, 2 Paige’s Ch. 387 ; Brewster v. Striker, 2 Comst. 19.)
    Both appeals were argued in 1862,' and in December of that year the judgments of the Supreme Court were affirmed, Smith, J. dissenting from the decision ’ on the trustee’s appeal, and holding with the trustee on the point made by him. A motion was heard in the March term of 1863 for a rehearing, which, in the June term of the same year, was denied. " '

      Alexander W. Bradford, Alexander S. Johnson and Daniel Lord, for Ann Striker’s devisees.

      Gilbert M. Speir, for Wilson, the trustee.

      David Dudley Field, for the respondent Winifred Mott.

      Charles O’Conor, for the respondent Garrit H. Striker.
   Denio, Ch. J.

The general question in these cases is whether Ann Striker was seised, at the time of her death, of an estate of inheritance in the premises in controversy. John Hopper, who died in the city of Hew York in August, 1819, was, in his lifetime and at the time of his death, the owner in fee of a farm on Manhattan island, now in the vicinity of Fiftieth street, of which the premises in question are a part. By his will, executed about four years before his death, he devised to his three grandchildren, namely, the said Ann Striker, Garrit H. Striker and Winifred Mott, “ and their heirs forever,” (they and the children of one of them being his only descendants thenliving,) all his “real estate,” in the city and county of New York; adding, “The said real estate so devised to my said grandchildren to be disposed of as follows, by my executors hereinafter named, and the survivor of them, or the executors or administrators of such survivor, that is to say; the said real estate shall not at any • time hereafter be sold or alienated; but my said executors and the survivor of them, or the executors or administrators of such survivor, shall from time to time lease and rent the same on such terms, and for such rent, as they may deem most advantageous to my said heirs, and the rents, issues and profits of the same shall be annually paid by my said executors and the survivor of them, or the executors or adminis- . trators of such survivor, to my said heirs in equal proportions.” There is then a provision that the devisees or .their children shall have the preference as lessees. After a disposition of the personal estate and some provisions not immediately material, there is the following clause; “And in case any of my said heirs and devisees 'shall die without lawful issue, then and in such case my will is that the share of the one so dying shall be and enure to the sole use, benefit and behoof of my said grandchildren and the survivor of them, and the heirs of such survivor forever." Three persons were appointed executors, all of whom are dead, but proceedings have been had in the. Supreme Court to supply the failure of trustees, under which proceedings James B. Wilson is the piresent trustee.

In October, 1820, Ann Striker presented to the court of common pleas, called the Mayor’s Court of the city of New York, a petition for partition of the aforesaid farm, she claiming to be seised as a tenant in common of an undivided third part thereof, alleging that Garrit H. Striker and Winifred Mott, the two other grandchildren, were each seised of an undivided third part as such tenants. They put in g.n answer admitting the matter of the petition, and “freely consented” that partition should be made according to the prayer of the petition. Three persons were accordingly, appointed commissioners, who, on the 7th of March, 1821, made their report, which was duly proved and filed, dividing the farm into three parts described by metes and bounds, and setting off in severalty one of the parts to each of the alleged tenants in common. The court thereupon gave judgment confirming the partition and report, and adjudging that they should be firm and effectual forever between the parties, and the record was afterwards duly signed and filed. On the 18th day of April, 1821, partition deeds were executed between the parties for the respective parcels allotted in severalty to each of the devisees. The deed to Ann Striker" is executed by Garrit H. Striker and his wife, Winifred Mott and her husband J ordan Mott, and by J acob 0. Mott, who was alleged to have acquired title to the life estate of J ordan Mott as tenant by curtesy. This instrument recites so much of the will of John Hopper, deceased, as shows a devise in fee of his real estate to the three grandchildren,- making express reference to it, and to the proceedings and judgment in partition in the Mayor’s Oourt, by which the premises particularly embraced in the operative, part of the deed were allotted in severalty to Ann Striker, and proceeds thus: “ And whereas the said parties of the first part, in consummation of. said partition and for settling all questions relative to said premises and the partition and division thereof, have agreed to execute to the said party of the second part and her heirs and assigns forever, a release of all the premises so set apart and allotted to her by the said commissioners as aforesaid. How, therefore, this indenture witnesseth, that for the true intent and purposes aforesaid, and for making a free, perfect and effectual partition and division of the said premises, and for the more effectual confirming and securing to the said party of the second-part, (Ann Striker,) her heirs and assigns forever, the part and share so as aforesaid allotted and assigned by the said commissioners; and for and in consideration of the sum of one dollar in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and the said parties of -the first part therewith fully satisfied, contented and paid, have, and each of them hath, remised, released and forever quit-claimed, and by these presents do, and each of them doth, remise, release and forever quit-claim unto the said party of the second part, and to her heirs and assigns forever, all and singular the premises hereinbefore mentioned &c., together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, &c. and also all the estate, right, title &c., as well in law as in equity, &c.” The instrument was duly acknowledged arid recorded.

Ann Striker duly executed her last will and testament on the 16th day of February, 1853, by which she devised specific portions of the premises allotted and quit-claimed to her, to several devisees, and all the residue of her real estate to her executors, to apply the rents and profits to the use of Jemima Swords during her life, with remainder to her children. The devisees under the will are represented by the plaintiffs in the last of these suits. Ann Striker died without issue, in April, 1860. From the date of the judgment in partition down to her death, the three devisees possessed and occupied the premises in severalty, according to the partition and the quit-claim deed, the executors or "trustees never before or afterwards-interfering with or exercising any authority respecting them. G-arrit H. Striker was examined in his own behalf and on the part of the persons having a similar interest, and testified (against the objection of the parties claiming in opposition to them, who excepted) as follows: “At the time of the partition I.supposed I had a title in fee to the one undivided third of the premises. My sisters Ann and Winifred supposed they each had a title in fee to the one undivided third part of the same premises.”

The Supreme Court determined against the claim of. the devisees of Ann Strikei-, holding that she had no estate in the premises of which John Hopper died seised, in her lifetime ; and as to the judgment in partition and the partition deeds, that their only effect was to adjust the share of the rents and profits to which the devisees would respectively he entitled during their lifetimes; and that if, by their terms and legal effect, they would take a greater interest under the judgment and deeds, they ought to be deemed void in equity and be vacated and annulled accordingly. This last adjudication was based upon a finding in matter of fact, that the judgments and deeds were had and executed under a mistaken impression and belief of the grandchildren that they were entitled to the premises' in fee simple, as tenants in common of three equal undivided shares in the premises.

Certain points have been settled under this will, in this court and the Court of Chancery, which ought not now to be made the subject of renewed' discussion. Prior to 1844 the interest of Garrit H. Striker in the premises was sold on execution issued upon a judgment against him, and the purchaser brought ejectment upon that deed, and the case was finally decided in this court in 1848, when it was held that the plaintiff was not entitled to recover, on the ground that Striker had no estate upon which the judgment could operate as a lien. It was held that the grandchildren took no immediate legal estate, the executor of John Hopper taking such estate, as trustee, by implication. (Brewster v. Striker, 2 Comst. 19.) As the only impediment to the estate of Striker was the implied estate of the executor, the legal existence of such estate in the executors in the whole of the premises embraced in the devise to the grandchildren must be .considered as established. The operation of the judgment in partition, and of the quit-claim deeds upon the future estates to arise upon the deaths of the grandchildren or any of them, was not then directly in question, as they were then all alive, and consequently these estates had not come into existence, It may equally be considered as settled, that, at the time of the proceedings in partition in the Mayor's Court, the state of the law did not allow suits in partition to be entertained between parties seised in reversioner remainder, or entitled to future estates by way of executory devise. , That point was decided by the Court of Chancery in an attempt to effect partition of a part of the land devised by this will to the grandchildren whose estates are now before us, in the year 1831. (Striker v. Mott, 2 Paige, 387.) It was also there, as in the case in this court, held that partition could not be made between the grandchildren, of their present interest in the premises, because it was considered that the legal title was in the executors as trustees. But.the former judgment in ¡Dartition, in the Mayor’s Court, and the mutual releases were not introduced into that case. I presume that the property respecting which partition was then sought was not embraced in those former proceedings. But that adjudication, assuming as I do that it was a correct exposition of the statute, did not determine the effect of the judgment in partition by confession of 1821, when introduced collaterally.

With a view to dispose of another' subject, upon which I do not think any controversy can be made, I mention that I concur in that part of the judgment of the Supreme Court in the present case, by which it is determined that the estate of the executors or trustees ceased upon the death of Ann Striker, as to the one third of the estate devised' for her benefit. And it is not material to consider separately the effect of the judgment in partition upon the ’future estates created by the will of Hopper, for I am of opinion that any objections which may be alleged against the effect of the releases would apply with at least equal force to the judgment in partition;. so that if the releases can not be sustained, the judgment in partition will be equally inoperative. The deeds, if otherwise effectual, would not be prejudiced by the circumstance that they were executed with a view to confirm the partition mentioned in the judgment. They were executed, apparently for greater caution, and have all the effect which such quit-claim deeds between these parties would have if unconnected with any attempt to make partition in court. These cases therefore depend wholly upon the effect to be attributed to the deeds, or rather to the deed to Ann Striker, which is the only one which it is material to consider. This deed besides being so far as the language is concerned a perfect release, is also a good conveyance by way of bargain and sale under the statute of uses. This results from the pecuniary consideration which the parties were careful to have inserted in it. The question then is, whether Ann Striker was so situated in respect to the estates created by the will in these lands, as to be capable of receiving a release of the future estates to arise upon her death, in the one third part devised for her benefit. She had no present legal estate, absolute or conditional. The executors were seised of an estate for her life, and she was entitled in equity to the rents and profits. If the remainder to take effect upon her death, and the consequent termination of the estate in the executors, is considered as limited to her heirs, by force of the first clause of the will, still the rule in Shelly’s case will not apply, for two reasons: ¡First. The precedent estate and that in remainder are not of the same quality, the first being equitable and the other legal. (2 Jarman on Wills, 244.) Again, it would be hostile to the plain intentions of the testator that the several grandchildren should take estates in fee, since he has expressly provided that the property should not be sold or alienated. If the grandchildren took estates in fee, the power of alienation would necessarily attach to such estates. The cases in England generally admit that a clear intention on the part of the testator that the immediate devisee should take only a life estate, would preserve the remainder and prevent the vesting of the fee in the first devisee, though difficulties have arisen in deducing such an intention from particular language; but where the devise of the primary estate is in trust, and the remainders are legal estates, and there is besides an explicit prohibition of the right to sell, no doubt as to the intention can be entertained. (Hargrave’s Law Tracts, 489.) Assuming, then, that the grandchildren did not take estates in fee, the question recurs as to the effect of the quit-claim deeds upon the future estates to arise upon the death of the grandchilden, or any of them, without issue. I am of opinion that the deed to Ann Striker could not have any effect by way of release, because the releasee had no estate which it could operate to enlarge. (See Miller v. Emans, 19 N. Y. Rep. 384, per Selden, J.) Her possession was the possession of the trustees in whom the legal title was. It could not operate by way of estoppel, so as to preclude the releasors from claiming the estate when it should devolve upon them by the happening of the contingency upon which it was limited, for there was no covenant of warranty. I do not see why it would not operate as a conveyance, by way of bargain and sale, if Garrit H. Striker and Mrs. Mott had a vested estate which could be conveyed. The words remise, release and quit-claim, accompanied by a pecuniary consideration, have always been considered sufficient to pass any estate which the persons executing the instrument then had. (Jackson v. Fish, 10 John. 456.) A great many titles are held under such conveyances, and I am satisfied that no other words are necessary to pass an existing title. But Mr. Striker and Mrs. Mott had not, nor had either of them, any vested estate in these premises. The remainder, limited to the- surviving grandchildren upon fhe event of the death of one of them without issue, was contingent and not vested. At the time of the execution of the partition deeds, it was not only uncertain when the remainder would vest in favor of such of them as should survive the others, but, as the issue of the grandchild dying was to take preferably to the surviving grandchildren, it was uncertain whether any estate in remainder would ever arise in their favor.

Taking this will altogether, I understand the successive estates in each third part of the land to be limited as follows: • First. To the trustees for the life of the grandchild for whose benefit that third was devised, remainder to the issue of that grandchild, if he or she shall have issue, in fee; but if he or she shall die without issue living at his or her death, (which last qualification results from the subsequent limitation to the survivor of the grandchildren,) then remainder to the grandchildren and the survivor of them. Second. This second remainder is contingent, though it would have been vested if the first remainder had been for any estate less than a fee simple. (Fearne on Rem. 225.) Hence Garrit H. Striker and Mrs. Mott had no estate which they could convey to Ann Striker by the deed under consideration; and hence, also, the devisees of the latter took nothing by the devise formally made in their favor.

I think, therefore, that the judgments given upon the appeals in these cases were correct, and that the motion for a re-argument should be denied.

All the Judges concurring, the motion for a rehearing was denied.


author: Wright, J. Rosekrans, J.

text:
    Waugh v. Waugh.
    Where the question is what is the division' line between two adjoining farms, which have been occupied in such a manner as to exclude any practical location, if the line can be located by surveys, according to the calls of the deeds, that is the true location, and can not be defeated by evidence of statements or admissions of the ancestors of the parties, when in pos7 session of both fárms, as to certain trees standing thereon being line trees.
    If the starting point given' by a deed can be found, and the lines accurately run and determined by the courses and distances of the deed, the boundaries must be settled by their calls, and can not be altered or affected by parol evidence.
    A testator, owning two farms, adjoining each other, devised to his son J. W. one of the farms, describing it as “ one hundred acres of land which formerly belonged to my brother J, W.” ' He then gave and bequeathed to his grandson, E. W., the other farm, describing it as “the old homestead whereon I lived at the time of making my will, containing one hundred acres.” Held that the latter words were not in any way descriptive, or intended to be, of the subject of the devise. That the descriptions 6f the twó pieces were definite and capable of being exactly located by the deeds ; that there was no ambiguity, and therefore no necessity for, or propriety in, resorting to parol proof of the testator’s intentions.
    Appeal from a judgment of the Supreme Court. The action was to recover damages for an alleged trespass by the defendant upon lands claimed by the plaintiff. The parties were owners of adjoining farms; the farm of the plaintiff lying on the west of that of the defendant, and the only controverted question was as to the true, location of the .division line. Both farms were originally owned by Bobert Waugh, the grandfather of the parties. The farm of the defendant was conveyed to old Bobert Waugh by William Scott, in 1769, and in 1807 he got title to that of the plaintiff by a deed, in which it is bounded east by the' farm of the defendant. Bobert Waugh, the grandfather, died in 1816, seised of the two farms in question, leaving a will, by which he devised to James Waugh, the father of the parties, the farm of the present plaintiff, describing it as “one hundred acres of land which formerly belonged to my brother James .Waugh.” He also gave to his grandson Robert, the present defendant, the farm now owned by him, describing it as “the old homestead whereon I lived at the time of making my will, containing one hundred acres.” Upon the death of Robert Waugh, the grandfather, James Waugh, the father of the parties, went into possession of both farms, and occupied them up to the time of his death, in 1856; except that during the lást sixteen years the defendant has occupied the farm now belonging to the plaintiff.
    James Waugh, the father, made a will devising to the plaintiff the farm now owned by him, describing it as the farm “ whereon my son Robert now lives,” and bounded on the east “by the farm on which I now live, and given to my Son Robert after my decease.”
    The deed from Scott to Robert Waugh, in 1769, of the farm of - the defendant, conveyed a tract of land by courses and distances, being one half of a lot of two hundred acres, known as lot Ho. 2, of land formerly granted to Alexander Baird and others, “beginning at the northeast corner of said lot Ho. 2, being a pepperage tree, marked with a blaze and two notches on four sides,” &c. The deed of 1807, of the plaintiff’s farm, described a farm of one hundred acres, by estimation, and bounded “on the east by the lands belonging to Robert Waugh.” - The plaintiff proved that the farm described in the deed from Scott, in 1769, had always been known as the “homestead,” and claimed that a survey of the same, according to the description in the deed, located the division line between the two farms east of the spot on which the alleged trespass was committed; and evidence of such a survey was given on the part of the plaintiff.
    On the part of the defendant it was claimed that the division line between the two farms had been practically located and established by Robert Waugh, the grandfather of the parties, while he was the owner and in possession of both farms; and there' was no dispute but that if the line was as fixed by such location, the acts complained of as a trespass were done by the defendant on his own land. To make out this defense the defendant gave evidence (the plaintiff's counsel objecting to any deelarátions of Bobert Waugh or James Waugh) that the grandfather, Bobert Waugh, resided upon the farm of the defendant, which was known as the “homestead,” and that forty or fifty years ago he pointed out a hickory tree, which he said was a line tree. That after James Waugh, the father of the parties, came into the possession of the property under the will of Bobert Waugh, he repeatedly declared that the hickory tree marked with three notches on two sides was on the line between the “homestead” and the west place. He also put a rock on the line to indicate its location. There was also another tree, now a stump, declared by the father and grandfather of the parties to be a line tree.
    Evidence was also given, on the part of the defendant, of a survey made by a surveyor, on which it appeared that the whole tract, embracing both farms, contained 202i% acres, and that running the line, as claimed by the defendant, gave to the plaintiff's farm a fraction over one hundred acres. The plaintiff was present at this survey and said that he would agree to run the line by the monuments, the- stump and tree.
    After the defendant rested,- -the - plaintiff gave evidence of the declarations of Bobert Waugh and James Waugh, to the effect that the line between the farms had never been run, and that they did not know where it ran.
    The court charged the jury ás follows : “The lands have been owned in such a manner as to exclude any practical location, and if the line can be located by survey, according to the calls of the deeds, that is, of course, the true location, and can not be defeated by any of the statements or admissions of the ancestors when in possession of both farms.” To this charge the counsel for the defendant excepted.

      The court also charged as follows: “ The jury are instructed that if the starting point given by the deed can be found, and the lines accurately run and determined by the courses and distances of the deed, the boundaries must be settled by their calls, and can not be altered or affected by the parol evidence.” To this charge the counsel for the defendant excepted.
    The jury found a verdict for the plaintiff, and judgment being entered thereon, the defendant appealed to the court at general term where it was affirmed. The defendant appealed to this court.

      J. H. Reynolds, for the appellant.

      A. J, Pctrher, for the respondent.
   Wright, J.

The jury were instructed that the lands embracing the farms of the plaintiff and defendant had been owned in such a manner as to exclude any practical location; and if the line between the farms could be located by surveys according to the calls of the deeds, that was, of course, the true location, and could not be defeated by any of the statements or admissions of the ancestors of the parties when in possession of both farms. The latter proposition was repeated in a somewhat altered form, though substantially to the same effect, viz. that if the starting point given by the deed could be found, and the lines accurately run and determined by the courses and distances of the deed, the boundaries must be settled by their calls, and could not be altered or affected by the parol evidence.

Two propositions were contained in the charge: First. That the lands had been owned in such a way as to exclude any practical location; and, second, that if the line could be located by surveys, according to the calls of the deeds, that was the true location, and could not be defeated by parol statements or admissions of the ancestors when in possession ' of both farms. As abstract legal propositions, (and ip this •form they were given to the jury without objection by the defendant,) they seem unobjectionable. The whole dispute was as to the true location of the line between the two farms. Both farms had been owned and occupied by the grandfather and father of the parties for more than half a century,, and were used in common as one farm. There was no adverse possession or any holding of one farm as separate and distinct from the other, or any agreement made or act done for the purpose of locating the line. There were, it is true, some loose declarations of the grandfather and father proved to have been made on two or three occasions, that a certain tree, and the stump of a tree, and a rock, were upon the line between the farms. There was not, and could not have been, under the circumstances, any practical location of the line; and it would have been error, upon the facts conceded and proved, to have submitted any such question to the finding of the jury. So, also, the proposition was equally correct, as matter of law, that if the line could be located by surveys according to the calls of the deeds of the two farms, the location thus ascertained would be the true one, and could not be defeated by any of the parol statements or admissions shown to have been made by Bobert Waugh and James W augh, the ancestors of the parties, when in possession of both farms. There was no dispute about the paper title of the parties, and no doubt or difficulty about locating the line by the deeds. It was proved, and indeed not questioned, that the farm described in the deed from Scott was always known as the “homestead,” and that Bobert Waugh lived and died on it. So, also, it was proved that the farm known as the West place formerly belonged to the brother of Bobert Waugh; was conveyed to the latter by the heirs of such brother as early as 1807; and in such conveyance was described as bounded “east by lands belonging to said Bobert Waugh,” that is, the Scott premises or “homestead.” Under these circumstances, the instruction was proper that the boundary must be settled by the deeds, and that the parol evidence could not alter it. ,

But it is now urged by the defendant's counsel, that the case was tried and went to the jury upon an erroneous theory. The question, it is said, as to the line between the farms, and whether the defendant was a trespasser, did not depend upon the courses and distances in the old deeds • or any of them; but as the grandfather, Bobert Waugh, by his-will in 1816, devised to the defendant, his grandson, the “old homestead” whereon he then lived, the real and sole question was where the west line was, as intended by the testator, or what part of the two hundred acres he intended to give to the defendant under the name of “the homestead whereon he lived at the time he made his will.”

The difficulty is, there is nothing in the terms of the devise to the defendant, or in the proof given by him, to support such a position. The words of the devise are: “I give and bequeath to my grandson,-Bobert Waugh, the old homestead, whereon I lived at the time of making my will, containing one hundred acres.” This followed a devise to the testator’s son “of one hundred acres of land which formerly belonged to my [his] brother James Waugh,” which was the West place, as distinguished from the,“old' homestead.” The devise to the grandson was the farm known and designated as the “old homestead,” on which the testator is described as living at the time of making his will. The gift'was of the tract of land known as the testator’s “homestead,” and not of a particular tract, within established boundaries, occupied by the testator at the time of making his will. In short, the words “whereon I lived at the time of making my will,” is not in any way descriptive, or intended to be, of the subject of the devise. The devise to the defendant was of the “old homestead,” and to the father of the plaintiff “the one hundred acres which were formerly owned by the testator’s brother J ames.” These were definite descriptions, and capa-? . Me of being exactly" located by the deeds. There was no ambiguity, and, therefore, no necessity for or propriety in resorting to parol proof of the testator’s intentions. But construing the words of the devise as the defendant claims, there was no competent proof that Bobert Waugh, the grandfather, before mating his will, established any division line between the farms, without regard to the description in the deeds; or that he occupied the “homestead” at the time of the devise in reference to such designated line; or that he intended to devise to his grandson, under the name of the “old homestead,” the farm on the east side of such established line, and to his son the farm on the west side. The whole evidence on the part of the defendant was, that some forty or fifty years before the trial Bohert Waugh casually pointed to a hickory tree, and to the stump of another tree in a meadow where he was plowing, and said they were line trees; .and even to rehut this it was shown that the grandfather occupied both farms as one up to his death, and that he repeatedly declared that the line between them had never been run, and he did not know where it ran. The evidence did no't tend to show the establishment O'f any division line by Bobert Waugh in his lifetime, or any designation of any portion of the two hundred acres as the “old homestead” expressed in the will; hut if it had, there was no request whatever on the part of the defendant that any question of fact should be submitted to the jury. If it were proper that the evidence should have been submitted to the jury to deter'mine where the testator intended the west line of the “old homestead” should he, and thus identify the farm given by the will to the defendant, the counsel of the latter should have requested its submission, and not have contented himself with excepting to legal propositions in themselves unobjectionable. It is palpable, however, that no questions of the kind could properly have been raised on the proof; and had the court submitted the question where the west line of ■ the “old homestead” was, as intended by the testator, it would have been error.

The judgment of the Supreme Oourt should be affirmed.

Rosekrans, J.

The sole question in the case is, whether the declarations of Robert Waugh and James Waugh were competent to control the language of the deed and wills. No monument being mentioned in the deed from William Scott, except the pepperage tree at the northeast corner of the farm conveyed by it, and the residue of the description being by courses and distances, it is clear that the true mode of ascertaining the extent and location of the premises conveyed is to follow the courses and distances as given in the deed. It is also clear that as the deed to Robert Waugh, from the heirs of James Waugh, described the premises conveyed as bounded on the east by lands belonging to said Robert Waugh, this line could only be ascertained by running the west line of the defendant’s farm according to the Scott deed. The land devised to the plaintiff’s father being described as the farm formerly owned by James Waugh, and the land devised to the plaintiff' being described as the homestead, which the proof showed was the name by which thó east farm, described in the Scott deed, required the running of the division line between the two farms according to the courses and distances given in that deed. There is no ambiguity in the language of either of the deeds or devises. The paper title of the plaintiff to the premises where the trees were cut is thus shown to be perfect. No authority is needed to show that the parol evidence offered was inadmissible to contradict the plain language" of the deeds and devises. The declarations of Robert Waugh the elder could not be proved to contradict the language of his will, as to the subjects of the devises to his son and grandson. The devise to the former was of the farm formerly belonging to the testator’s brother, James Waugh. This, as the deed showed, was of land bounded on the east by lands belonging to the testator, and the Scott deed showed the extent of his ownership. The devise to the grandson was of the homestead, and this was shown to be the premises described in the Scott deed.

• The parol declarations of James Waugh, the father of the plaintiff, could not operate as a disclaimer of his title to all the land covered hv the devise to him; nor could they operate to defeat his title, on the ground that they operated as a practical location of the line between the two, farms. Such location can be made effectual to transfer title when the agreement for that purpose has been made between adjoining owners of land, and there has been an adverse holding in conformity with the practical location for a period of twenty years. „No such adverse holding was shown, and from the nature of the occupancy of both farms down to 1841 there could he no such holding. Since that time there, did not appear to have been any adverse holding in conformity with the declarations shown. If there had been, the time was too short to defeat the paper title. It follows that the proof of such declarations could not, in any aspect of the case, he admitted in evidence. The judgment should be affirmed.

All the Judges concurring,

Judgment affirmed.