text:
    Henry Bower v. Reuben Town and another.

      Dissolution of attachment: plea in abatement. — The only modo] by which a defendant in attachment can contest the truth of tho facts stated in the affidavit upon which the attachment was issued, is by an application to the circuit court commissioner for a dissolution of the attachment, under the act of April 73 1851, Comp. L. §§4773 to 4776.
    Where, therefore, an attachment was issued on an affidavit which alleged that defendant had disposed of his property with intent to defraud his creditors, and the defendant interposed a plea in abatement that he had not disposed of his property with intent to defraud his creditors, it was held that the plea was properly stricken from tho files.

      Heard November 3d, 1863.

      Decided January 8th.

    Error to Washtenaw Circuit.
    This suit was commenced by attachment by the defendants in error, against Henry Bower, the plaintiff in error. Declaration in assumpsit on promisory notes, with the common counts annexed, was filed, and to this declaration a plea in abatement was interposed. The writ of attachment was issued on the affidavit of one of the plaintiff^ stating, after alleging the indebtedness of the defendant, that the affiant had “ good reason to believe that the said. Henry Bower has assigned and 'disposed of his property with intent to defraud his creditors.” The plea in abatement alleges that defendant had not assigned and disposed of his property with'intent to defraud his creditors, at the time said affidavit was made, nor since;. and that the affiant had not then, or before, or since, good reason to believe that the defendant had assigned and disposed of his property with intent to defraud his creditors, and prays judgment, &e. This plea, duly verified by the affidavit of the defendant, was, on motion of plaintiff’s attorney, stricken from the files .of the Court, as frivolous. Judgment was subsequently entered for plaintiffs, for want of plea.

      A. Felch: and 0. Hawkins for plaintiff in error:

      1. The statute treats the writ of attachment as an extraordinary process for the commencement of a suit. It is given only in special cases. The plaintiff has a right to it only when the special circumstances exist which are enumerated in the statute.
    A plea in abatement is the proper method in all cases to try the question whether the plaintiff is rightfully in court. If he is not, the defendant has no occasion to answer to the merits of his claim, and may abate the suit.
    2. The fact that enough is stated in the affidavit to entitle the plaintiff, prima fade, to the writ, does not preclude subsequent inquiry into the truth of the statement.
    It may be well that the ministerial officer issuing the writ shall not be authorized to look beyond the face of the affidavit, but no court can be compelled to retain a cause in court which comes there only by a grace given to perjury.
    The Court will look behind the affidavit, and if the cause alleged in it be found untrue, will abate the suit.
    3. The truth of the fact, alleged in his affidavit by the plaintiff for obtaining the attachment, is allowed to be contested by the courts in most, if not all the States of the Union.
    The manner of presenting the question is not uniform, but the right in some method to go behind the affidavit is uniformly admitted when not prohibited by .statute.
    Thus, in New York an attachment improvidently issued was disposed of by supersedeas from the Supreme Court, on showing the falsity of the affidavit on which it was obtained: — 3 Caines, 257; 1 Wend. 66; 3 Wend. 424. It is now done under the code in that State by special motion, although the code gives no special authority for that proceeding: — 7 Barb. 656; 12 Barb. 265.
    In Pennsylvania it is heard on motion, and the alleged facts are controverted by affidavits: — 1 Dall. 165; 2 Yeates,
      277. So in New Jersey: —1 Green, 250; 1 Green, 131; 3 Harr. 287. So in Maryland: — 3 H. & McH. 535. So in South Carolina: — 2 Nott & McC. 130; Ibid. 323; 1 McCord, 331.
    4. The plea in abatement is a proper' method of presenting the objection to the action. So held in South Carolina: — 1 McCord, 331; 2 Nott & McC. 130. In Tennessee: — 3 Sneed, 536; 7 Hump. 465 ; 3 Yerg. 414; 1 Humph. 420; 4 Humph. 346. In Kentucky: — Hardin, 65 and n.; 6 Dana, 289; Ibid. 321. In Indiana: — 6 Blackf. 232; 7 Ibid. 573. In Illinois: — 1 Ill. Appx. 25; 10 Ill. 31. In Virginia: — 2 H. & M. 312. In Ohio: — 1 Ohio Cond. 244. In Missouri: —17 Mis. 32; 5 Mis. 544; 21 Mis. 296. In Alabama: — 3 Stew. 226.
    These cases were decided in States where no statutory provision interfered to give or prohibit any such authority for the adjudication: —Drake on Attachments, § 406.
    5. This question is not affected by the statute (Comp. Laws, § 4773 et seq.) giving the right to move for a. dissolution of the attachment, [before a Judge at chambers- or the circuit court commissioner.
    That statute is designed as a sj>eedy and summary remedy out of court, for the release of property attached. It does not necessarily affect the action, but only releases-the property, leaving the party and the suit still in court-It is a relief to the defendant — summary and speedy — but partial and imperfect. That which is sought by the plea in abatement is in the ordinary course of legal proceedings, before the regular judicial tribunal, where decisions are of record and subject to review by the Supreme Court.

      Maynard S Meddaugh for defendants in error.
   Christiancy J.:

The motion to strike from the file's the plea in abatement was properly granted. The proceeding by attachment unde$ our statute is two-fold, in rem, and in personam. The writ is a summons as well as an attachment. When there is no personal service upon the defendant, and he does not appear in the suit, the proceeding is strictly in rem, and no property except that attached can be taken in execution. When the defendant has been personally served, or has appeared, the proceedings in the suit are to be the same in all respects as upon the return of a summons personally served in a suit commenced by summons:— Comp. L. § 4758; and the execution may be levied upon the property of the defendant generally, as in other cases.

Chapter 114 of the Revised Statutes of 1846, and the amendatory act of April 7, 1851— Comp. L. §§ 4773 to 4776 — must be construed together. And, since the passage of the latter (whatever might have been the case before)* the dissolution of the attachment on the ground set up in the plea, and the delivery of the property to the defendant, does not affect the plaintiff’s right to proceed with the suit in the same manner as if commenced by summons, if the defendant has appeared in the suit or enters his appearance under the order of the Judge or commissioner hearing the application for dissolution.

And the only mode in w'hich the defendant can avail himself of the matter set up in the plea in this case, is, by an application for a dissolution of the attachment in the manner provided by this amendatory act.

The judgment of the Court below must therefore be affirmed, with costs. .

The other Justices concurred.


source: Caselaw Access Project

author:
■Campbell J.:
      Manning J.:

license: Public Domain

text:
    The People, on the relation of Calvin P. Austin v. Peter Fralick, Sheriff of Wayne County.

      Redemption by judgment creditors from execution sales. — Judgment creditors who were entitled, under §3147 of Compiled Laws, to acquire the5 rights of a purchaser of premises sold on execution, applied to the purchaser for that purpose, and took from him an 'assignment of his certificate of sale, hut without having presented him with the statutory proofs of their title to acquire such rights. Held, that where the application was thus made to the purchaser himself, and evidences produced which were satisfactory to him, it was sufficient; though if the application had been mude to the register of deeds or sheriff, the statutory proofs must have been produced.
    Held farther, that the creditors, by thus taking an assignment of the certificate of sale, did not debar themselves from holding as judgment creditors under the .statute; and that a subsequent creditor applying to become purchaser of the ¿premises under the statute must pay their judgment as well as the original bid.

      Heard October 15th, 1863.

      Decided January 8th.

    Error to Wayne-Circuit.

      .B. C. Holbrook, for plaintiff in error:
    Buhl purchased of Corning the certificate of sale, and thereby became Coming’s assignee, with no other rights than Coming had.

    And Buhl not having followed any of the statutory requirements, by leaving with any one a certified copy of his judgment and affidavit of amount, Austin could not learn the amount necessary to deposit, so that he might, as against Buhl, redeem from him.
    The law requires certain acts performed to entitle any one to acquire the title on execution sale. Redemption is not what the statute means by purchasing or acquiring-title. The assigning by Coming was not any step towards acquiring title under the statute. The statute must be strictly complied with: — 22 Barb. 259 ; 27 Barb. 55; 6 Wend. 526; 20 Wend. 555 ; 7 Paige, 167; 19 Wend. 87; 7 Hill, 177; 18 Wend. 598; 2 Comst. 490.

      Maynard & Meddaugh, and G. V. JV. Lothrop for respondent :
    A compliance with the statute — Comp. L. § 3147 — is not a condition to the securing of a title as against subsequent judgment creditors.
    1. Where the title is sought, as in this case, directly from the original purchaser, and he makes a voluntary ■conveyance, this provision in the statute is inoperative.
    By the preceding provisions a judgment creditor may obtain the title from the original purchaser, and thereby secure the payment of his judgment from any subsequent judgment creditors seeking to redeem.
    But the creditor holding title might refuse to convey; and to enable the party seeking it to enforce his right, section 3147 was added.

      Its office is simply to fix the evidence necessary for the creditor to furnish in such cases: — 20 Wend. 555 ; 1 Cow. 443.
    2. Where the title is sought of the original purchaser, ■or a judgment creditor, he may waive the “ evidence of right5’ provided for by this section.
    This must be so upon principle.
    The evidence can answer no purpose in such cases except to satisfy the purchaser 'or creditor of the party’s ■right, under the statute, to his title, and to enable the party to enforce such right.
    It is intended solely for the benefit of the creditor seeking the title.
    Had Buhl & Ducharme literally followed the statute in this respect, the relator could have derived no advantage from it.
    Mr. Corning, a resident of the State of New York, could not have enlightened the relator in Detroit on the ■last day for redemption as to the contents of the papers presented to and left ’’ with him.

      Between the date of the sale to Buhl & Ducharme and the day of redemption by the relator, the defendant might have paid Buhl & Ducharme’s debt; in which case the evidence (had it been left with Corning) would have been of no more use • to the relator than the judgment or the certificate of sale filed with the register.
    Again, Mr, Corning was under no obligation, either of duty or of law, to preserve such evidence, and might have destroyed it the next moment.
    We submit that had the Legislature intended this evidence when left with the purchaser or creditor, as in the nature of a public record, and for the benefit of other parties, interested in the title, a depository more appropriate would have been selected, and some provision for its preservation would have been added to the statute.
    If, then, this evidence was intended only for Coming’s benefit he might waive it.
    The following authorities hold that a waiver may be made in such cases where the interest of subsequent judgment creditors is not involved. But qiccere as to them: ■ — 7 Hill, 91; 18 Wend. 599.
    There is but one case to be found in the books opposed to this construction of the statute: — People v. Ransom, 2 Comst. 490. It is submitted that case can not be sustained.
    3. The relator in this case had full notice, before seeking to redeem, of Buhl & Ducharme’s judgment and of the fact that they had acquired Coming’s title.
    It has been repeatedly held under the registry acts that a knowledge of the facts which the registration would have afforded, is fatal to a claim resting upon the want of registration; and the analogy seems complete: —15 N. Y. 354; 2 Paige, 205; 4 Sandf. 577; 8 N. Y. 274.
    The registry acts usually make the non - registration fatal only as against bona fide purchasers, Sc., without notice.

    Were the language of these statutes broad enough, however, to cover purchasers in good faith, their spirit is against it, and the courts must have so held.
    Such has been the course of English decisions under a similar statute: — 1 Y. & Coll. 303; 15 N. Y. 354.
    If the relator had such notice as should have put him. upon inquiry even, it is sufficient: — 6 Wend. 213; 18 Wend. 588; 3 Paige, 421.
   ■Campbell J.:

This is an application to compel Fralick, as sheriff, to execute to Austin a deed of certain premises sold on execution against George B. Russell and others.

The execution sale was on a judgment in favor of Erastus Corning, who purchased the property. Buhl & Ducharme had a judgment on which a levy had been made after the first execution was levied, but before sale. The sale was made August 30, 1861. September 3d, 1861, a mortgage was made by Russell to Austin, the relator. November 10, 1862, Buhl & Ducharme paid Corning the amount due him, with interest, and took an assignment of his certificate o^ sale. On the last day allowed creditors to redeem, Austin, by his attorney, applied to the register of deeds and filed proofs of his mortgage interest, together with money to pay the Corning bid, but not to pay any portion of Buhl <fc Ducharme’s judgment. The sheriff refused to convey to Austin, on account of the claims of Buhl & Ducharme. The attorney of Austin was informed of Buhl & Ducharme’s claims before he attempted to redeem for his principal.

The objection made by Austin to the validity of Buhl & Ducharme’s claim, is, that it does not appear that they furnished to Corning the proofs of their claim in the manner pointed out by section 3147 of the Compiled laws. The statute provides that judgment creditors may redeem from execution purchasers in such a way as to become subrogated to their claims, whenever the premises remain unredeemed by the debtor or his assigns within-the twelve months allowed these. This payment to take-up the claim of the execution creditor is required to be accompanied by copies of the judgments relied on, and-an affidavit of the amount due. Application may be made to the register or sheriff, or to the purchaser himself. There is no provision declaring what shall be done-with the papers.

Inasmuch as this payment by creditors can only be-made after the debtor’s redemption has run out, its effect is to allow the purchaser to be deprived of what may be an advantageous bargain, and it is only just that he-should not be • compelled to relinquish it without full proof of the right of the one who would supplant him. And he can not be compelled to receive any but full' proofs. But where the application is made to himself, and he is convinced of the right of the applicant, there-seems no good reason why he should be compelled to ask more proof. The proofs he • receives come into his-hands in his own right. He is not a public depository,, and the papers do not become public by the deposite. No one else has any right to them. It is different where the redemption is made through a public officer. He being-merely an agent by virtue of the law, must be guided by the terms of the statute; and papers intrusted to his custody become official, and enure to the benefit of such as may be concerned. But if the prior purchaser sees fit to allow a departure from the statute, a question may arise-how far any third person can object to it.

We think that if Buhl & Ducharme were actually in a position to demand a transfer of the certificate, they must be protected when they have obtained it from the purchaser himself, whether they produced the statutory proofs or not.

But it was claimed on the argument that, by taking an assignment, they debarred themselves of the right’; to claim the position of creditors exercising a privilege under the statute. The creditor is said in the statute to “acquire the title,'> of the execution purchaser. Subsequent parties applying are directly termed “purchasers": §§ 3137-8 3142. By section 3146 it is provided that “upon such payment being made, the title of the original purchaser shall be thereby transferred to the creditor acquiring the same,” &c. This undoubtedly contemplates that the creditor may acquire the right without any formal transfer. But he would have a right to require some voucher for his payment. And, inasmuch as a transfer of title actually takes place, it is not easy to comprehend how it can be vitiated by expressing what the law implies. It would require strong evidence to justify a court in assuming that Buhl & Ducharme deliberately took this course to divest themselves of a right which could in no way compromise or prejudice them, while, on the other hand, its exercise might become valuable, and must necessarily have been so had the property been worth buying from Corning. Every presumption from the facts must tend to satisfy any reasonable mind, that the parties never intended to give up any rights; and we do not think they have done so unless such an intention appears.

Having lawfully acquired the rights of Corning, the statute does not allow their purchase to be divested in favor of any claim accruing subsequently to their judgment, without payment of their own judgment in addition to the purchase money. Comp, L. § 3141; laws of 1861 pp. 134, 135.

This, Austin did not attempt, although informed of Buhl & Ducharme’s claim. His payment therefore was inoperative, and gave him no rights.

The judgment below must be affirmed, with costs.

Ma rtin Ch. J. and Christiancy J. concurred.

Manning J.:

The right of redemption is a statutory right, to be acquired in the manner pointed out by the statute, and in no other. The statutory requirements are conditions precedent, and may be insisted on not only by the purchaser at an execution sale, but by any one having a right to redeem who has done all the statute requires to enable him to redeem. A purchaser may waive these conditions as to himself; but he can not, by such waiver, give the person in whose favor it is made a priority over one who has complied with the statute. By paying Corning the amount of his bid, and taking an assignment of the sheriff’s certificate of sale, Buhl & Ducharme acquired the rights of Corning and nothing more. They acquired no rights under the statute, because they did not comply with its provisions. The language of the statute is peremptory. It is in these words:

“To entitle any creditor to acquire the title of the original purchaser, or to become a purchaser from any other creditor pursuant to the preceding provisions, he shall present to, and leave with, such purchaser or creditor, or the officer who made the sale, or with said register, the following evidence of his right:

1. A certified copy of the judgment or decree under which he claims the right to purchase;

2. A true copy of all the assignments of such judgment or decree which are necessary to establish his claim > verified by his affidavit, or the affidavit of some witness thereto;

3. An affidavit by such creditor, his agent or attorney) of the true sum due on such judgment or decree, at the time of claiming such right to purchase.” Comp. L. § 3147.

The following cases under a similar statute of the state of New York sustain the views above expressed Buck v. Fox, 23 Barb. 259 ; Hall v. Thomas, 27 Barb. 55; People v. Livingston, 6 Wend. 526 ; Waller v. Harris, 20 Wend. 555; Waller v. Harris, 7 Paige, 167-77; People v. Sheriff, 19 Wend. 87; Ex parte Bank o Monroe, 7 Hill, 177; People v. Covell, 18 Wend. 598; People v. Ransom, 2 Comst. 490.

I think the judgment should be reversed, and a mandamus issued.

Judgment affirmed.


author: Christian cy J.:

text:
    VanRenselaer T. Angell v. John J. Rosenbury.

      Assignment for the "benefit of creditors : insolvency of assignee. — 'In making a general assignment for the benefit of oreditors, the utmost good faith is required of the debtor in selecting his assignee. The selection must be made with reference to the interest of creditors, rather than that of the debtor. Hence, if the assignee be so deficient in age, health, business capacity or standing, pecuniary responsibility or character for integrity, that a prudent man, honestly looking to the interest of the creditors alone, would not be likely to select him as a proper person for the performance of the trust, then his selection will furnish an inference, more or less strong, according to the circumstances, that the assignor was aotuated by some other motive than a desire to promote the interest of creditors.
    When a general assignment for the benefit of oreditors is assailed as fraudulent, evidence of a general reputation that the assignee is insolvent is admissible, not only as tending to prove insolvency in fact, but also because, if the assignor has knowingly assigned to a person having the reputation of insolvency, this fact would have a tendency to show that the assignment was made for the purpose of inducing creditors to compromise, even though the assignor believed him solvent in fact. ’

      Witness giving reasons for his attention to the facts to which he testifies.— A witness called to impeach such an assignment, testified that the assignor and assignee had requested him to assist in bringing about a compromiso with the creditors, and had showed him notes upon which the assignee made a claim under the assignment. Being shown notes which had been produced on this trial as the same, he pointed out some differences in appearance, and stated that ho gave particular attention to the notes first mentioned, as to their appearance, the ink, &c. Held that he might then be asked to state any reason or circumstance which induoed him to do so.

      Proof of record without giving copy. — The deposition of a register of deeds to the oontents of deeds recorded in his office, without giving copies thereof, is inad' missible. And when the purpose for which it is offered is collateral to the issue, the rule is the same as in other cases.

      Presumption as to objection to incompetent interrogatories having been waived. — Incompetent testimony having been taken on interrogatories and cross interrogatories under a commission, and the Court below having overruled objections thereto, the case was brought up for review on exceptions. On error, it was olaimed by the party who had offered the evidence, that error could not be presumed, and as the record did not show how the interrogatories were settled, it must be presumed that objection was - waived, and the putting of u. cross interrogatory which called for and elicited evidence of the same nature was a waiver of any objections to the evidence brought out by the direct interrogatory. But it was held — nothing appearing to the contrary — that it must be presumed the interrogatories were settled in the usual way, under the statute and rules; and in such case the party may make objection to the • competency of the evidence for the first time at the trial. Comp. Laws, §§ 4257, 4248.

      Request for instructions to the jury how construed. — On error the Supreme Court must construe a request for instructions to the jury as it must have been understood by the Court and jury had it been given. It must therefore be construed in reference to the evidence in the case upon the subject to which it alludes.

      Assignment for benefit of creditors; badges of fraud. — Where it appears that the assignee, a short time before the assignment, as an inducement for a third person to loan the assignor money, stated that the latter was perfectly good, and not owing much, the setting up by him of a large preferred claim under the assignment, as having been owing to him before such statements were made, is strong evidence of fraud in the assignment.

      Assignment by one who is solvent, or believes himself to be so. — -The mere fact of the solvency or insolvency of one who has made a general assignment, or his belief in the one or the other, does not necessarily render the assignment void. Without any fraudulent intent in either case it would be valid, and with a fraudulent intent it would be void in both cases alike.

      Assignment to prevent sacrifice of property. — The fact that a general assignment is made by an embarassed debtor, whether solvent or insolvent, to prevent a sacrifice of his property, does not necessarily, of itself, render the assignment void. If the sacrifice is sought to be avoided for the sole purpose of giving creditors the benefit of the property, which in case of a sacrifice they would not be likely to obtain to the same extent, then, whether solvent or.insolvent this is an honest purpose, and should not invalidate the assignment. But if the sacrifice is sought to be avoided for the purpose of enabling the assignor to reap a greater benefit, by securing a larger surplus, or retaining the control or use of the property, or in any other way, or for the purpose of compelling a compromise, then the purpose is fraudulent, and the assignment is void.

      Deed in trust may convey a fee without the word “heirs” — In a conveyance in trust for the sale of land and for the payment of debts from che proceeds, the word “heirs” is not necessary to convey a foe. The trustee must be held to take an estate as large as may be necessary for the purposes of bis trust» whether the conveyance contain words of inheritance or not.

      Heard October 30th & 31st, 1863.

      Decided January 8th.

    Error to Livingston Circuit.
    <?. V. JST. Lothrop, for plaintiff in error :
    1. The first question presented is, whether it is competent to give evidence of the reputation of the assignor, for solvency or insolvency.
    It is clear that it is the duty of an assignor to select a solvent responsible assignee; his failure to do so is an indication of fraud; — Burrill on Assignments, 66; 1 Sandf. Ch. 254; 1 Barb. 210 ; 1 Binney, 502 ; 8 Paige, 417.
    The solvency of Rosenbury was therefore a material question. He lived in a distant State. He had no business here; and the very first questions that a creditor would ask, would be, Who is he ? What his business ? What his standing and reputation, as to character and property, in Penn Yan ?
    As these were answered would be the conclusion formed. And it is safe to act on these inquiries. A man may be reputed to be solvent, who is not in fact so. But a man who is really solvent, will never have a confirmed reputation of insolvency.
    The return of an execution nulla bona would be unquestionably competent evidence; yet it is undeniable that it would be much less satisfactory evidence among men of sound judgment, than a general settled reputation of insolvency. And as that evidence is competent which most satisfactorily proves the truth or falsity of a matter, reputation on this subject is competent by the highest test:— 1 Greenl. Ev. § 101; 2 Dev. 63 ; 11 Wend. 96; 18 Vt. 87.
    And I maintain that this evidence is specially fit and appropriate, in cases where the assignor is bound to select a man who is not only in fact honest and responsible, but also one who is reputed to be such. He is bound to give his creditors obvious and ready grounds of confidence; if he does not, if he appoints men whose moral and pecuniary reputation are such as to inspire distrust and alarm, then, certainly, this is a badge of fraud proper to be considered, both by the creditors, and by any tribunal investigating the validity of the assignment.
    2. The next point is the refusal of the court to allow the witness Hinman to state any answer or circumstance which called his special attention to the condition of the notes shown him by Wilbur and Rosenbury, at Wilbur’s store.
    The ground of this refusal, I certainly do not understand. As going directly to the weight of this testimony, it seems to me that the question could not properly be rejected.
    8. The third point is presented in the deposition of Olmsted. He was allowed to state that he had found in the register’s office, for Potter county, Pennsylvania, the records of certain deeds, and to give a statement of the contents thereof. This is clear error. A document or a •record can only be proven by the original, or by copy: — 1 Greenl. Ev. §§ 83, 84, 85, 86, 501.
    4. Rosenbury told Sexton, in the winter before the assignment, that Wilbur was not indebted to any extent, and tried to get him to lend Wilbur money. He said Wilbur was perfectly good.
    When he showed the notes to Hinman, at the store,' and at Harmon’s office, he and Wilbur fixed the amount due on them at about $9,000. This was stated to enable Hinman to state to the New York creditors the amount of preferred claims, and to induce them to compromise.
    Now, such conduct as this is the most direct and downright fraud. Yet under the charge of the Judge, the .jury might well infer that such acts had no decided character in the eye of the law.
    Stating fictitious debts by the assignor, has always been regarded as decisive evidence of fraud: — 1 Sandf. Ch. 83; 2 Barb. 9; 2 Sandf. S. C. 594; 36 Barb. 292.
    And how strong the badge became under the evidence in this case!
    As to badges of fraud, see Burrill on Assignments, 9
    5. The fifth point arises on the request to the court to charge the jury, that, if they found that Wilbur was solvent, or believed he was so when he assigned, then the necessary effect was to hinder, etc., and that the assignment was void.
    I take it to be settled that where an assignment is made, not for the purpose of a distribution of the debtor’s property, but primarily to delay creditors in their collections, it is fraudulent and void: — 3 Barb. Ch. 646; Nicholson v. Leavitt, 2 Seld. 516; Buck v. Sherman, 2 Doug. Mich. 176.
    And it seems clear to me that when a solvent person makes such an assignment, the necessary and primary intent is to delay his creditors in their collections. He does this, also, for an advantage to himself, namely, to enable him to save a larger surplus out of his property.
    I then take the broad ground, [that no assignment by a solvent person, or one believing himself to be so, can be otherwise than fraudulent in the law. See Kellogg v. Slawson, 15 Barb. 56 ; Ogden v. Peters, 15 Barb. 560.
    6. The Court refused to charge that the assignment conveyed only a life estate in the real estate.
    This was error. No fee passes, or can pass by deed, without the word “heirs’’: — 1 Bl. Com. 83; — 4 Kent, 5.
    And the Court also refused to charge that, if Wilbur intended to reserve the remainder to himself, the assignment was void.
    When a debtor assumes to make a general assignment for the benefit of his creditors, he must convey all of his property. And it is especially fraudulent, if, under such an assignment, he purposely uses terms which will leave a part of the property in himself: —11 Wend. 187; 1 Hilton, 462; 3 Md. 40; 8 Md. 418; 11 Md. 376.

      Wilcox & Waddell, and S. T. Douglass, for defendant in error:
    1. The evidence of hearsay and reputation to prove that Rosenbury was insolvent and irresponsible, was inadmissible. To hold otherwise would be to introduce a new exception to the general rule excluding hearsay, not recognized by any authoritative text writer, or by any English decision, and against the general current of American authority: — 16 Pick. 567, 570 ; 13 Geo. 408 ; 25 Ala. 139; 9 Ind. 158.
    2. The question to Ilinman: “ Will you state any good reason or circumstance which led you to give particular attention to the notes, the ink and the edges,” was properly overruled.

      a. It was improper in so far as it called for the witness’s reason for scrutiny.
    The state of his own mind — his opinion or suspicion that the notes were fraudulent or fictitious, and were made long after they purported to be — would have been good reason for scrutiny. A statement of such reason would have been a proper and natural answer to the question propounded, and the answer which the question was, doubtless, artfully designed to elicit.
    It will not be claimed that any such opinion or suspicion could properly be given in evidence to the jury.

      b. The question was, to some extent leading. That was not probably the ground upon which it was objected to, but as the grounds of objection are not stated in the bill of exceptions, any objection may be urged here which could have been urged on the trial: — 3 Hill, 396; 20 Geo. 140.
    3. Olmsted’s reply to the 4th interrogatory in respect to what conveyances to itosenbury appeared of record in Potter Co., Pa., was properly admitted.

      a. What lands itosenbury owned in Pennsylvania was matter wholly collateral to the question in issue, and for this reason provable by parol, without the production or proof of his title deeds: — Anth. N. P., 40; 10 Johns. 442; 11 Wend. 667; 17 Mass. 160; 2 Bail. 324.

      b. What the 4th interrogatory was does not appear, nor does it appear whether the interrogatories were agreed upon or not, nor whether, if agreed upon, it was with or without any saving of just exceptions; nor whether, if settled by a judge, any objection was made to this interrogatory at the time of the settlement. It does, however, appear that the defendant put a cross interrogatory, which called for and elicited the same evidence (only in more detail) elicited by the 4th direct interrogatory.
    It must be presumed that the 4th direct interrogatory •called for just the response which the witness gave to it: — Francis v. Ocean Ins. Co. 6 Cow. 404.
    If such interrogatory was agreed to by the defendant without saving just exceptions, he would not afterwards be heard to object to the answer on the ground that it was secondary evidence.
    And in the application of the general principle, that the ruling of a court admitting or rejecting evidence will be presumed right unless the bill of exceptions shows affirmatively that it was wrong (6 Gray, 510), it must in this case be presumed, in the absence of any showing-on the subject, that the interrogatories were settled by agreement, without any saving of the right to except.
    However settled, the defendant having made no objection to the 4th interrogatory at the time of the settlement, on the ground that it called for secondary evidence (for it can not be presumed that any such objection was made without any showing on the subject) and having himself propounded a cross interrogatory, calling for the same evidence, he must be deemed thereby to have waived any such objection to evidence elicited by the direct interrogatory: — 32 Ala. 500, 502.
    Sec. 4257, Comp. L., does not apply whore the party has either expressly or by implication waived his right to object.
    4. The Court properly refused to instruct the jury “ that if they should find that Rosenbury made statements before the assignment that Wilbur was not indebted to any considerable extent, then the setting up the notes held' by Rosenbury as just claims, in] the assignment, would be-strong badges of fraud.’’

      a. This instruction (unless unmeaning) would have-been a direction to the jury to assume that Wilbur was-not in fact indebted to any considerable extent, if they should find that Rosenbury had made statements to that-effect. Whereas, Rosenbury’s statements were mere evidence-of the fact, which, however strong, was not indisputable.

      b. It assumes that the notes were set up as just claimsain the assignment to their full amount, or for more than-was due upon them; whereas such was not the fact.

      c. If it is claimed that the instruction merely assumes that the notes were so “ set up ’’ under and not strictly “in” the assignment (waiving the question of whether the language used will admit of this construction), we say, whether they were “ so set up ” was a question of fact for the jury, which the Court could not properly withdraw from their consideration, by assuming that they were.
    5. The Court properly refused to instruct the jury that, if they found either that Wilbur was solvent, or that he believed he was so when he made the assignment, then the assignment was void.
    That he was in fact solvent would not invalidate the assignment if made in good faith, and in the belief that he was insolvent.
    Nor would his mere belief that he was solvent, when in fact he was not: — Burrill on Assignments, 41; Ogden v. Peters, 21 N. Y. 23; Savery v. Spaulding, 8 Clarke, (Iowa) 239.
    To be solvent in such a sense that the fact could cast even a suspicion upon the good faith of an assignment, the debtor must be able presently to pay all his debts, by the application of all his means, or be in such a condition that his creditors can collect all their debts by legal pro-cess: — Burr. on Assignments, 38, 42.

      The evidence does not tend to prove that Wilbur was in this sense solvent, or that he believed he was, but only that a few days after the assignment he expressed the opinion that ' the assigned property (the assignee being allowed time to dispose of it to the best advantage) would pay all his debts and leave a surplus.
    6. The assignment conveys the fee of the real estate therein mentioned: —15 Md. 63; 9 Gill, 261 ; 4 Kent, 304; 2 Wash. Real Pr. 186, 44.
   Christian cy J.:

Rosenbury, the plaintiff below, sued Angelí in an action of trespass, for taking and carrying away certain goods* Rosenbury claimed title under an assignment made to him by one Charles A. Wilbur, June 25th, 1855, ostensibly for the benefit of creditors. Angelí, who was sheriff of Livingston county, had seized the .goods under several writs of attachment at the suit of Wilbur’s creditors. Wilbur, the assignor, appears to have been a merchant doing business at Howell, Livingston county, Michigan, for some time before the assignment, but his stock having run down in December, 1854, to about one hundred and fifty dollars in value, he then thought proper to replenish it by sending his clerk to New York and making purchases, through his agency, to the amount of about six thousand dollars, on six months credit; on which the clerk, who made the purchases, and testifies to them, is not aware that any thing had been paid at the time of the assignment.

Rosenbury, the assignee, was the brother-in-law of Wilbur, residing in Penn Yan, New York, where Wilbur had also resided till 1846 ; and Wilbur says Rosenbury had resided there for fifteen or twenty years, and he 'had known him for that period. His testimony shows an intimate acquaintance and considerable business transactions with him for a considerable portion of that time. Rosenbury had come out, in November or_ December, 1854, and spent the winter at Howell, and left in March or April, 1855; not having, so far as Wilbur knows, any business at that place. He however appears to have taken a friendly interest in Wilbur’s affairs, as we find him during the winter urging one of the witnesses to lend Wilbur more money, saying he was perfectly good, and not, owing much. About the time the six thousand dollars must have become due for [the December purchases, and three or four days before this assignment was executed, Wilbur, ¡according to his own account, was on his way to Detroit to get an assignment prepared, when he unexpectedly, as be says, met Rosenbury on the road in the stage, on the way to Howell, as it would seem. Wilbur went on to Detroit, and seems to have got an assignment prepared; as he says, after his return from Detroit, he “had a new assignment ” — the present one — drawn by Mr. Whipple, which was executed June 25th, 1855.

Rosenbury is made a preferred creditor in the assignment, the amount not stated, but stated to be “for notes and accounts not liquidated,” though it appears from the testimony of Wilbur, who was sworn in his behalf, that Rosenbury had no claim except certain notes which he says amounted tó $'1000 or $8000, perhaps more. These notes, or what were claimed by plaintiff to be such — as subsequently produced under a notice for that purpose from the defendant below — were four, of one thousand dollars each, dated July 19th, 1845, payable to one Glover or bearer, in one, two, three and four years respectively, with annual interest, and one note for seven hundred and fifty dollars, given to Rosenbury March 9th, 1842, payable on demand. Against these notes Wilbur admits he had a large offset, for goods, boarding Rosenbury, &c., and calculated he did not owe much beyond the offset. The notes had never been renewed, nor any thing indorsed on them, nor any receipt given to apply on them. They had never settled, and the amount was not liquidated or known at the time of the assignment, nor even at the time of this trial, in June, 1862, which seems to have been the third, trial of this cause: and it does not appear whether any thing was due, or, if so, how much. Wilbur says he don’t think there was a thousand dollars, and that at the time of the assignment he did not know . whether he owed Rosenbury any thing or not. Rosenbury claimed that he did, and — to use his own words' — he “might have owed him considerable or not.’’ All this came out on his cross examination, at the beginning of which he had testified that the preferred claim of the plaintiff was just; that is, what was due; but he didn’t know how much was due him.

The defendant below, claiming the assignment to be fraudulent as to Wilbur’s creditors, undertook to impeach it by showing that Rosenbury, the assignee, was insolvent. For this purpose he introduced the depositions of several business men of Penn Yan, where Rosenbury resided, and who had known him from 1840 down to about the time of the assignment, all of whom testified fully to his reputation for insolvency during that period. Upon this point as well as the witnesses’ means of knowledge, the depositions were full and clear. But to so much of these depositions as related to his reputation for insolvency, the plaintiff below objected; and the Court,, sustained the objection and excluded the evidence. This is the first question for our consideration.

While we express no opinion whether insolvency, as a legal status, can be proved by reputation when that is the direct question in issue, we are entirely satisfied that the testimony was admissible in the present case on more than •one ground. First, — though the point can hardly be said to be necessarily involved in the present case — we think it was admissible as tending to show insolvency in fact. The fact of insolvency is one in its own nature, in most cases, hardly susceptible of direct or positive proof. Clear knowledge of the fact must generally be confined to the party whose insolvency is in question — who in the present ease is the plaintiff himself — (and though under our present statute he may be sworn as a witness, we can not hold the defendant bound to resort to that mode of proof more than before the statute, especially as he may be sworn in his own behalf to rebut any proof defendant might introduce). The fact, then, must generally be proved by circumstantial or presumptive evidence — by the proof of other facts from which insolvency is to be inferred. Among the particular facts admissible for the purpose, and thought to be of much weight, and most generally resorted to, is the return of an execution against the party unsatisfied. And yet as an execution does not reach rights in action, nor (in this and most other states) mere trusts; and as the defendant may have any amount of money and even other property so situated as not to be found or reached by the officer, it is easy to see that the defendant in the execution may be (and it is notorious that he often is) a wealthy man in fact, notwithstanding the officer has been entirely unable to find property subject to execution. This is so well understood that the return of an execution unsatisfied would, alone, seldom, if ever, give a man a general reputation for insolvency. Any thing like a common or general reputation for insolvency would not be likely to arise without the observation of numerous other facts, such as the acts and conduct of the party for a considerable length of time, indicating a want of means, and an inability to pay his debts. And as we kpow from common experience that, though men really insolvent often appear to the public for a considerable time as men of property, very few, if any, ever get a general reputation for insolvency who are not insolvent in fact; we think the general reputation of a man as insolvent in the neighborhood in which he resides, and among men whose dealings and interests prompt them to observation and inquiry, is much more satisfactory evidence of insolvency than that of the particular facts most generally relied upon for the purpose; especially where, as in the present case, such has been the unquestioned reputation of the man for a great length of time. It is the deliberate judgment of the community — based upon the observation of a much greater number of facts than it can generally be practicable to introduce in evidence.

But the purpose for which the evidence was introduced in the present case did not require proof of the absolute insolvency of the plaintiff, as a legal status. The evidence was material only so far as it tended to prove a fraudulent intent in making the assignment.

The right of an embarrassed debtor to make an assignment, and to select his own assignee, without, and against, the consent of his creditors, has been finally admitted, in most of the states of the Union; though the propriety of recognizing such a right has often been questioned, and, if the question were a new one, might well be doubted. But to prevent the abuse of the right, and to avoid its being made a convenient engine of fraud, the utmost good faith must be required of the debtor in the selection of the assignee. That selection must be made with reference to the interest of creditors, rather than that of the debtor. Hence, if the assignee be so deficient in age, health, business capacity or standing, pecuniary responsibility or character for integrity, that a prudent man honestly looking to the interest of the creditors alone, would not be likely to select him as a proper person for the performance of the trust; then his selection will furnish an inference more or less strong, according to the circumstances, that the assignor, in making the selection, was actuated by some other motive than the desire to promote the interest of creditors: in other words, an inference of intent to hinder, delay or defraud his creditors. And this inference will be strengthened if the assignee be a clerk or near relative, or a person likely to be easily influenced by the assignor;, as this would tend to raise a presumption that the assignment was intended to be made use of for the assignor’s benefit, or. that there was some secret trust in his behalf, Any thing, therefore, which tends to show that the assignee, in any respect, is not such a person as an honest and prudent man would be likely to select for the position, with reference to the interest of creditors, must, upon principle, be admissible to impeach the good faith of the assignment: (the weight of the evidence would, of' course, depend upon the degree of unfitness shown). In this view it is well settled that the selection by the assignor of a person known to him to be insolvent, is very strong evidence of a fraudulent intent. This is upon the principle that, as the assignee is not by law compellable to give security for the assets, or the faithful performance of the trust, the assignor, in placing the property beyond his own control and that of his creditors, ought to place it in the hands of such person as will be-able to respond to creditors for the waste or wrongful disposition of the assets, or the mal - administration of the trusts. The principle, therefore, is not confined to actual insolvency, but extends to any case where the property or pecuniary means of the assignee are clearly inadequate to-this end, or any state of pecuniary embarassment likely to deprive the creditors of this security. Not that this considei'ation, of itself, is always a controlling one, or decisive of the question of fraud: as the high character of the assignee for integrity and business capacity may sometimes compensate, in a great measure, if not entirely, for his want of pecuniary means, and afford nearly, if not quite as strong assurance to creditors that the fund will be safe in his hands, and that the trusts will be faithfully executed.

The inquiry, therefore, is not so much whether the assignee is strictly, in a legal sense, insolvent, but what is. the state of his property and his pecuniary standing? 4nd upon principle, as well as authority, we think this may be proved by reputation. See State v. Cochran, 1 Dev. 63 ; Hard v. Brown, 18 Vt. 87; also Heywood v. Reed, 4 Gray, 574.

Decisions have been cited to the contrary where the question arose somewhat as it does here. But we think the decisions above cited are founded upon the better reasons. In Alabama proof of insolvency by reputation is rejected, on the ground that insolvency is a legal condition— a conclusion of law from particular facts — and yet in the cases in which it was so held, it is not easy to see how it was any more a conclusion of law from particular facts, than fraud in the present case, or character in ordinary cases, is a conclusion of law from the particular facts which go to establish the general resultant fact of fraud, or character. But, while the courts of Alabama reject proof of insolvency by reputation, yet, with a singular inconsistency, as it seems to me, they allow the particular facts from which insolvency is to be inferred, to be proved by reputation; which, I think, is much more objectionable, both upon principle and authority.

But second., I think reputation of insolvency is admissible in cases like the present, independent of its tendency to prove insolvency or a less degree of pecuniary embarassment in fact. It is well settled that an assignment made by a debtor for the purpose of inducing a compromise on more favorable terms than he could otherwise obtain, is fraudulent. «Now, whatever may be the condition of an assignee as to solvency, as known to himself: creditors have not his means of knowledge, and they must judge of the fact as it appears to the public — in other words, mainly by reputation. It is upon this they must generally form their judgment, and decide upon their course, whether it is best to run the risk of a suit, or to assent to such compromise as the debtor may choose to offer. And if the assignee has a confirmed reputation for insolvency, we can not fail to see, that all prudent creditors would be much more likely in ordinary cases to consent to a compromise on the debtor’s own terms, than if the assignee were reputed to be solvent, and able to respond for mal. versation or breach of trust. In this view we can not resist the conclusion, that, if the assignor has knowingly assigned to a person having the reputation of insolvency, this fact would have a tendency to show that the assignment was made for the purpose of inducing a compromise, even though the assignor believed him solvent in fact (and there was certainly enough in the case to authorise the jury to infer a knowledge on the part of Wilbur of this reputation of Rosenbury); and this tendency would be greater or less, according to the character or fitness of the assignee in other respects, and the other circumstances of the case. But its tendency to prove that such was the purpose of the assignment would be very strong, when, as in this case, the assignor and assignee are shown to have acted together in their endeavors to procure a compromise-, after the assignment was made. We think, therefore, the Court erred in excluding the depositions referred to.

The next error assigned is the rejection of the question put to the witness, Hinrnan, asking him to state any reason or circumstance which led him to give particular attention to the four notes. To understand the nature of this objection it is necessary to see how the question arose. Hinrnan had already testified that, in August, 1855, he was applied to by the plaintiff and Wilbur to aid in getting a compromise with the New York 'creditors. He told them that, to enable him to do so, they must make a statement of their matters; and they showed him four notes, as the basis of the plaintiff’s claim. In this stage-of the trial, as it would seem, while Hinrnan was still under examination as a witness, the plaintiff, under a notice from the defendant to produce the notes, produced the five notes which I have already described. The witness, after looking at the notes, testified, “I can not state whether the notes now produced are the same which were shown me by the plaintiff or not. If they are, I was mistaken in the date. My recollection is, that the four $1000 notes shown me were dated June 15th, 1842. The same notes were soon afterwards shown me at the office of Harmon. The $750 note has the same appearance as the note just shown me. The other four differ in my recollection in the appearance of the paper and date. Those first shown me were clean. These are more dilapidated and worn. I gave the four notes particular attention as to their appearance, the ink, and the edges.” He was then asked, on the part of the defendant, “ Will you state any reason or circumstance which led you to do so ? ” This was objected to, but the grounds are not stated, and the question was rejected.

We think the rejection of this question was erroneous It was very important, in determining the credit to be given to the witness’s recollection, to know whether any or what reason existed at the time to induce the witness to give particular attention to the appearance of the notes. The value of his recollection would depend entirely upon the degree of attention with which he observed the facts, and the reasons which operated upon his mind to excite that attention, and to fix the facts in his memory. He should therefore have been allowed to state any facts which had that effect, whether relevant to the issue or not. The rejection of the question was unfair both to the defendant and the witness. We see nothing objectionable in the form or substance of the question. It was not leading: and the generality of its form was in some measure necessary to avoid suggesting any particular answer.

The next error assigned is the admission of the deposition of Olmsted, the register of deeds of Potter county, Pennsylvania, testifying to the contents of certain deeds to the plaintiff, Rosenbury, there recorded. This evidence was offered to rebut the evidence on the part of the defendant tending to prove the insolvency of the plaintiff, or his want of property. No deed nor any copy of a deed was proved or attached, nor was any offered in evidence. The testimony is claimed to be admissible on the ground that the question of Rosenbury’s title was only collateral to the issue. But the question upon this testimony is not one of reputed ownership, but simply whether the contents of the deed or of the record could be proved by parol. We understand the rule to be well settled that, when the contents of a deed or other writing are to be proved, though only collateral to the issue, the rule is the same as when the matter is directly in issue: and the same ground must be laid for the introduction of parol evidence : — Cow. & Hill, Notes to Phil. Ev. (Ed. of 1839) note 452 pp. 1210 to 1212. Same work by Edwards, vol. 2 pp. 512 to 514; 1 Greenl. Ev. §§ 88, 89.

But as the deposition was taken upon written interrogatories under a commission, and there was a cross interrogatory upon the part of the defendant which called for and elicited evidence of the same nature, and it does not appear whether the interrogatories were agreed upon, or whether, if so, it was with or without the reservation of exceptions ; or whether, if settled by the Judge, any objection was made by the defendant; it is urged that it must, on error, be presumed that no objection was made, and the putting of the cross interrogatory was a waiver of any objections to the evidence elicited by the direct interrogatory.

Though it is for the plaintiff in error to show by his bill that error has been committed, we do not think it was necessary for him to set forth the negative fact, that he had not agreed to the direct interrogatories, as framed, or that he had not consented to waive any objections, unless something appears in the bill to indicate that he had done so; and nothing of this kind appears here. There is nothing in the bill to indicate that the deposition was taken or the interrogatories settled by agreement, or in any other than the usual and legal way pointed out by the statute and rules of Court: and the presumption must be that the deposition was taken and the interrogatories settled in this way, until something appears in the bill to indicate the contrary. If the objection had been waived by agreement, so important a fact, so decisive against the objection, and which must have been so directly before the mind of the Judge in deciding upon the objection and in settling the bill, we can not suppose would have been omitted without imputing to the Judge a want of ordinary intelligence, as well as of candor and fairness. We must therefore treat it as a deposition taken under the statute and rules of court.

By reference to Comp. L. § 4257, it will be seen that ‘‘ any objection to the competency or credibility of a witness so examined, or to the competency or relevancy of any question put to him, may be made in the same manner, and with the like effect, as if such witness were personally examined at such trial.” See also in connection, Ibid. § 4248. This, we think, reserves to the party the right to make his objection for the first time at the trial, though he may have been present when the interroga* tories were settled, and may have put cross interrogatories upon the same matter: and that the putting of such cross interrogatory is no waiver of the objection to the direct interrogatory to which it relates. Such has been the course of decision in the state of New York under a statute substantially like ours. See Fleming v. Hollenback, 7 Barb. 273; Morse v. Cloyes, 11 Barb. 100; Commercial Bank of Penn. v. Union Bank, 11 N. Y. 203. The same practice seems to exist in Ohio and in South Carolina, and, as I infer, without any special provision of statute. See Cowan v. Ladd, 2 Ohio N. S. 322; Ellis v. McBryde, 9 Rich. 269: and 'by statute in Massachusetts in cases where the depositions are not taken on written interrogatories, though both parties are present at the taking : • — ■ Atlantic & Marine Fire Ins. Co. v. Fitzpatrick, 2 Gray, 279; Heywood v. Reed, 4 Gray, 574; Palmer v. Crook, 7 Gray, 418: and see Lord v. Moore, 37 Me. 208. It is true our statute does not, like those of Massachusetts and New York, expressly reserve the right to object to the answer. But we think the right to object to the question on the trial, must also extend to the answer: and if it be said that the right to object to the answer must depend upon the question being objectionable, still, though the interrogatory does not here appear, it must be presumed to have called for the answer the witness gave it: — Francis v. Ocean Ins. Co., 6 Cow. 415. If the direct interrogatory and the answer to it be rejected, as incompetent, the cross interrogatory and answer, being dependent upon it, must also be rejected: — Ellis v. McBryde, supra; Fleming v. Hollenback, 7 Barb. 273. (The last case was overruled in Cope v. Sibley, 12 Barb. 521, upon another point, but not upon any question involved in the present case.) We think therefore the deposition of Olmstead, so far as it purported to state the contents of the deeds mentioned, was erroneously admitted. {¡¡$ The next error assigned is the refusal of the Court to charge, that, “if the jury should find that Rosenbury made statements before the assignment that Wilbur was not indebted to any considerable extent, that the setting up of the notes held by Rosenbury, as just claims in the assignment, would be. strong badges of fraud.” The language of this request has been criticised by the counsel for the defendant in error. Its grammatical accuracy will hardly be insisted upon, and perhaps it is open to the criticism that it does not, abstractly considered, express the idea intended to be conveyed. But we think it fair to construe a request of this kind as it must have been understood by the Court, and by the jury had the charge been given as requested. For this purpose it should be construed with reference to the evidence in the case upon the subjects to which it alludes. When considered in this light, though it may fall short of expressing the whole proposition intended, we think it was a sufficiently intelligible expression of a proposition which the defendant was entitled to have embodied in the charge. Saxton had testified that, in the winter previous to the assignment, plaintiff in Wilbur’s store had asked the witness why he did not lend Wilbur more money, saying Wilbur was perfectly good and not owing much. Hinman testified that, at the first interview with plaintiff and Wilbur, in August, 1855, they both fixed the amount due plaintiff (meaning, as the former portion of his testimony shows, upon the notes), at nine thousand dollars; and that at a subsequent interview at Harmon’s office, plaintiff stated his claim at the same sum. This was stated as the amount of the plaintiff’s preferred claim, under the assignment, and to enable Hinman to effect a compromise with the New York creditors; and must of course have been intended to be communicated to these creditors as an inducement to a compromise. When the request is construed with reference to this evidence, to which we think it must have been understood by the Court and jury to relate, it must, we think, be understood as a request to charge, that, if the jury should find the plaintiff had made the statements testified to by Saxton, then the setting up of the notes as just claims in or under the assignment (the difference in the propositions will not materially alter the sense) in the manner stated by Hinman, would, if found true, be “a strong badge,” or a strong indication or evidence, of fraud (for this is the sense in which “badges of fraud” are used): see Burrell on Assignments, 433, 434.

We do not think this request fairly open to the objection urged, that it required the jury to assume that Wilbur was not much indebted in fact, if Rosenbuiy should be found to have so stated. If this fact (that he was not much indebted) were established, then the setting up of the notes in the manner and to the amount stated by Hinman, would, if found true, not only be a badge, or evidence of fraud; but would of itself constitute fraud. The request, however, only asks for a charge that it would be evidence of fraud. Nor do we understand the request as requiring the jury to assume that the notes were in fact “ set up ’’. The language is “ the setting up the notes would be ” (not was or is) strong badges of fraud: leaving, as we think, the jury to determine whether they were thus set up. The request would have been more logical in form had it been that the statement of Rosenbury referred to, and the subsequent setting up of the notes— should the jury find both these facts — would be strong badges (or evidence) of fraud. But such, we think, was the effect of the request; as both facts were left to the jury, and the latter fact was not asked to be treated as evidence of fraud without the finding of the former.

The statement of Rosenbury alluded to would tend strongly to show that Wilbur could not have been indebted to him in the amount of nine thousand dollars upon the notes, the amount at which the testimony of Hinman tended to show they were set up by both the assignor and the assignee. The request does not require the jury to assume that, if set up, they must have been set up for more than was due, but this is what the evidence of Rosenbury’s statements and of the setting up of the notes for nine thousand dollars as stated by Hinman tended to show.

If, however, the bill states all the evidence upon the point of Wilbur’s indebtedness to Rosenbury, it was the duty of the Court and jury to assume that there was not nine thousand dollars due on the notes, and that if set up as stated by Hinman the notes were set up for more than was due. It appeared from the plaintiff’s own showing (for the testimony of Wilbur on cross examination must be treated as evidence on the part of the plaintiff), that not more than one thousand dollars, if anything, was due. And so far as the bill shows, this fact was undisputed. If, therefore, the record shows all the evidence upon the point, the defendant, had he asked it, would have been entitled to a charge that the setting up of the notes as stated by Hinman, would, if found true, be strong evidence of fraud, whether the jury should find Rosenbury had made the statement in reference to Wilbur’s indebtedness alluded to or riot. We think, therefore, the defendant was entitled to the charge asked.

Did the charge given in answer to the request cure the error of its rejection? This charge was “that, if the jury 'find that plaintiff stated, before the assignment, that Wilbur was not indebted to any considerable extent; then, in deciding whether the transaction was fraudulent or not, they should take into consideration the fact that the plaintiff set up the notes as just claims in the assignment, as well as all other facts in the case.” This charge certainly exhibits an extreme of delicate forbearance entirely uncalled for by the case, or the question of fraud involved: since, with apparently studious care, it avoids telling the jury that the setting up of the notes under the circumstances stated would be evidence of fraud, or whether its tendency would be to prove the transaction fair or fraudulent. Perhaps the charge may not violate any principle of law in any rule which it lays down. And the setting up the notes in the manner and to the amount supposed would so palpably indicate fraud, that a jury would not, under ordinary circumstances, be in any danger of misapprehending the effect of the evidence. But such a charge coming immediately upon the refusal of the Court to charge that such conduct would be evidence of fraud, was certainly calculated to make them doubt whether such was its tendency, or whether in law it was-to be regarded as having any decided tendency one way or the other.

It is further assigned as error, that the Court refused to charge, “that if the jury find that Wilbur was solvent, or believed himself to be so, when he made the assignment; then the necessary effect was to hinder, delay and defraud creditors, and the assignment is void.”

We think this charge was properly refused. We can see no good reason to hold that the mere fact of the solvency or insolvency of the assignor, or his belief of the one or the other, must necessarily render the assignment void. Without any fraudulent intent in ■ either case it would be valid: and with a fraudulent intent it would be void in both cases alike. Nor will the fact that the assignment is made by an embarrassed debtor, whether solvent or insolvent, to prevent a sacrifice of his property, necessarily, and of itself, render it void. It will depend upon the purpose with which the sacrifice is sought to be avoided. If for the sole purpose of giving his creditors the benefit of his property, which, in case of a sacrifice, they would not be likely to obtain to the same extent, then, whether solvent or insolvent, this is an honest purpose, and should not invalidate the assignment. But if the sacrifice is sought to be avoided for the purpose of enabling the assignor to reap a greater benefit by securing a larger surplus, or retaining the control or use of the property, or in any other way, or for the purpose of compelling a compromise; then the purpose is fraudulent, and the assignment is void. See Ogden v. Peters, 15 Barb. 560 ; same case on appeal, 21 N. Y. 23 ; Rohenbaugh v Hubbel, cited, 15 Barb. 560.

But the fact of the solvency or insolvency of the assignor, or his belief of the one or the other, may not be wholly immaterial. A person believing himself solvent might be more likely to seek to avoid a sacrifice for the purpose of securing a surplus to himself, than one y^ho believed himself to be insolvent, as the inducement to this end might perhaps be stronger: and therefore it might require less evidence in such a case to authorize the inference of such an intent, than if he believed himself insolvent. But this may admit of doubt.

The only remaining exception is, the refusal of the Court to charge “that the assignment conveys only a life estate in the real estate therein mentioned; and if the jury believe that Wilbur intended to reserve the remainder to himself) the assignment is void.”

The assignment “grants, bargains, sells, releases, assigns and sets over to the said John J. Rosenbury, and to his assigns forever” (omitting the word heirs), all and singular the lands, tenements and hereditaments, real estate and chattels real (as well as his personal property, notes, accounts, &c). The habendum is, “to the said John J. Rosenbury, and to his assigns, in trust however, and to and for the uses, intents'and purposes following: that is to say, the said John J. Rosenbury shall take possession of the said property, and shall with all convenient dili. gence, sell and dispose of the same, either at public or private sale, to such persons, &c., collect debts &c., and convert the same into money,” &c. And it is further provided that said Rosenbury, with the avails and proceeds of said sales and collections, shall first pay and discharge the costs and expenses attending the due execution of this assignment, and the carrying into effect the said trusts, with a reasonable compensation for his own services: and the residue of the avails and proceeds of said sales and collections shall constitute a fund to be used and applied by said Rosenbury for and towards the payment of the debts owing by said Wilbur: which debts he shall pay and discharge in the order “therein set forth.” Nothing is expressly reserved to the assignor except what may remain after the payment of all his debts of every kind. And the assignor covenants with the assignee “and his assigns,” that “ he will, .when thereto required, make and cause to be made such further arrangements, deeds and conveyances as shall be necessary to carry into full effect this indenture, and the intention of- the parties to the same.”

This, therefore, is a conveyance in trust for the sale of the land and real estate (as' well as of the personal property), and for the payment of debts from the proceeds. In such a case we do not think the word “heirs ” is necessary to convey a fee. When a conveyance of land is made in trust for such a purpose, we think the trustee must be held to take an estate as large as znay be necessary for the purposes of his trust, whether the conveyance contained words of inheritance or not: — 2 Washb. on Real Property, pp. 186, 187, §§ 43 and 44; 4 Kent, 304; Farquharson v. Eichelberger, 15 Md. 63; Spessard v. Rhorer, 9 Gill, 261. There is certainly nothing in the instrument indicating an intent that the sale to be made by the assignee was to be of any particular estate or interest less than the whole. We are therefore satisfied that this request was properly refused. But for the several errors upon other points, the judgment must be reversed, with costs of this Court to the plaintiff in error; and a new trial must be granted.

Martin Cii. J. and Manning J. concurred.

Campbell J. did not sit in this case.


author: Thb Court

text:
    George French and another v. The Highway Commissioners of Springwells.

      -Misdirection of Certiorari.— Certiorari to highway commissioners to review notion taken by them in laying out a highway, and which, on appeal to the township board, had been confirmed. Held, that the writ should have been directed to the township board, instead of to the commissioners.

      Heard and decided April 9th.
    Motion to quash a writ of certiorari.
    The highway commissioners of Springwells took pro. feedings for laying out a highway, under a petition ■of freeholders, dated August 24th, 1863. A way having been ordered by them to be laid out, the plaintiffs in ■error appealed to the township board, by which the action of the commissioners was confirmed. The writ of certiorari was then sued out, directed to the highway commissioners.

      M Y. Swift, and G. S. Swift, for defendants in error,
    ■contended that the writ should have been directed to the township board; and that a decision as to the determination of the highway commissioners would be entirely nugatory, leaving the action of the township board in full force : — Goodrich v. Commissioners, &c., of Lima, 1 Mich. 385 ; Ex parte Mayor of Albany, 23 Wend. 276.

      H. M. Cheever and JO. Bishop contra,
    referred to 11 Me. 473; 35 Me. 373; 30 Me. 302; 26 Me. 406; 23 Me. 9; 37 Me. 558; 9 Met. 423 ; 6 Cush. 306; 8 Pick. 342; 12 Cush. 351; 3 Harrison, 179; 3 Zab. 383 ; 4 Halst. 18; Ibid. 21; 1 Zab. 87; 4 Zab. 736.
   Thb Court

held the point well taken, and- the writ, was quashed.


author: Campbell J.:

text:
    Pierre Teller v. Henry Willis.

      Practice: Writ of error after two years. — A. motion to dismiss is the proper form of objection tó n writ of error in the Supreme Court supposed to be barred by lapse of time. The plaintiff in error may show himself, by affidavit, to comowithin the exceptions of the statute ; and if that fact is disputed, the Court, may resort to such measures as may he found most suitable to have the, question settled.

      Heard April 5th.

      Decided April 12th.

      ■ Motion to dismiss a writ of error issued more than two years after judgment rendered.

      L. D. Dibble, for the motion,
    referred to Comp. L. § 5340; 11 Wend. 522 ; Minor, 57; 6 H. & J. 99; 4 H. & J. 215; 1 Root, 54; 11 How. 204.

      G. Woodruff and W Gray contra:
    It is enough to answer this application that the fact, objected is a proper subject of a plea: —2 Strange, 837.
    The statute which limits . the time of issuing the writ, also provides certain exceptions to its operation, and which form appropriate subjects of replication to the plea.
    A motion is founded on an irregularity or defect in ■the proceedings: — Tidd Pr. 512, 515.
    Now it is not irregular to issue a writ of error after two years. The process so issued is regular, and the clerk can not withold it from the party; and having issued and been returned, the court had jurisdiction: — 2 Strange, 837; 4 Mass. 182; 1 Root, 54; 11 Wend. 524.
    It cannot be assumed that we could not reply to the statute if pleaded, and we assert the contrary — and the Court will not allow our rights to be compromised by this motion.
   Campbell J.:

Where a writ of error is not brought until after two years from the date of judgment, we think it a more convenient practice, in a Court like ours, with no ready facilities for jury trials, not to require the defendant in error to plead the limitation, until there is some responsible showing that the plaintiff in error comes within some of the saving clauses. If upon a motion to dismiss for want of jurisdiction, made on the first reasonable opportunity, the plaintiff shows himself by affidavit to come within the exceptions, the Court can resort to such measures as may be found best, to have the question settled if disputed; while, if not disputed, no further delay will occur. We ■deem it our duty to discourage any practice which will render it necessary, before a hearing of the cause in error, to have a trial by jury of a preliminary issue, before another court, whose action upon such trial may itself be excepted to, — unless satisfied in advance that there is a real controversy, requiring such issue to be thus determined. We ■shall therefore regard a motion to dismiss as the proper form of objection, to a writ supposed to be barred by lapse of time.

The plaintiff in error having relied in good faith upon the English practice, which, for the reasons named, we do not deem adapted to the constitution of this Court, the motion will be regarded as continued until the last Tuesday of this month, to give him an opportunity of showing, by affidavits, such, facts as are claimed to exempt him from the operation of the statute.

The other Justices concurred.

On the day named, plaintiff in error not appearing, the-case was dismissed. See same case, y^osi.


author: Christiancy J:

text:
    Peter C. Caruthers v. Henry Humphrey and another.

      Usury. — On the facts stated in the opinion, usury, as alleged, held to. be established^

      Mature of a mortgage of lands. — A mortgage is no longer, in this State, what it was originally at common law, a grant of the land to the mortgagee, defeasi-' ble upon condition subsequent, and to become absolute on failure to pay at, the specified day. It is but a security for the debt. The estate in the land is still in the mortgagor; and payment at any time before foreclosure and sale, or —in ease of foreclosure by advertisement —at any time before the expiration of the time of redemption, including legal costs, will discharge the-mortgage; and no reconveyance is necessary.

      Mortgage discharged by a tender. — And where the mortgagor, after the mortgage has become due, but before foreclosure, tendered to the holder the full amount due, which the latter refused to receive, it was held, in a suit subse. quently brought to foreclose, that the tender discharged the lien of the mort^ gage, notwithstanding the money was not brought into Court, and it was not, shown that the tender was kept good up to the time of hearing.

      Heard January 6th and 7th.

      Decided April 15th.

    Appeal in chancery from Shiawassee Circuit.
    The facts, so far as they bear upon tbe legal questions* are stated in the opinion.

      McCurdy & Raynale, for complainant,
    to tbe point that the lien of the mortgage was not discharged by the tender* cited, Merritt v. Lambert, 7 Paige, 344; Post v. Arnot, 2 Denio, 344; Kortright v. Cady, 23 Barb. 490.

      Goulds & PLanchett, contra,
    referred to Dougherty v. Randall, 3 Mich. 581; Baker v. Pierson, 5 Mich. 456; Cameron v. Irwin, 5 Hill, 272 ; Jackson v. Crafts, 18 Johns, 110; Kortright v. Cady, 21 N. Y. 343.
   Christiancy J:

The bill was filed to foreclose two mortgages (on the same land) executed by the .defendants to William L. Coonley, both dated the 5th day of June, 1860; one for four hundred and twelve dollars and the other for two hundred dollars: both payable one year from date with interest at ten per cent. The former was assigned to complainant on the day of its date, and the latter on the 16th day of May, 1862, long after it became due. The mortgages were respectively accompanied by a promissory note for a like amount, payable in the same way, which notes were transferred to complainant with the respective mortgages.

The defense set up is usury, and a tender of the amount actually due, after default, and before the filing of the bill.

Before the execution of these mortgages, Coonley held a mortgage of the defendants, upon which there was due at the time of the execution of these mortgages about four hundred dollars, the last installment of which became due in January previous. In December 1859 Coonley wrote to Humphrey wishing to know if he could pay the mortgage, as he wished to build a house, but could not unless he should receive this money. Humphrey had previously talked with complainant about getting the money from him to pay this mortgage, and, after the receipt of this letter, went to see complainant, telling him of the receipt of the letter, and wishing to know if he could depend upon getting the money. Complainant told him he could write Coonley that the money should be forthcoming without fail. Humphrey asked him bow much he was going to shave him on the money: — to which complainant replied he would let him have it at ten per cent, as they were old neighbors. Humphrey wrote Coonley accordingly, that he could rely upon the money. About the time the last of this old mortgage became due (January, 1860), Humphrey again called on complainant for the money, who said he hadn’t it then, but would have it in a short time. Coonley again wrote for the money, and Humphrey again went to see complainant, who still promised him the money, but had not got it yet. Coonley came out in March, but nothing could be effected, and he returned. In May, 1860, Coonley still pressing Humphrey for the money, the latter again called on complainant, telling him the facts, and that he had promised Coonley the money relying upon the promise of complainant. Complainant then told Humphrey he could not have it: there was no use being- mealy mouthed about it: saying “ you know I told you I would not shave you; but Coonley wants money pretty bad, and I can shave him now.” Humphrey told him he could not shave Coonley, as whatever he took from him would come directly out of him (Humphrey), and 'that he would not allow Coonley to be. shaved a cent, and asked complainant how much shave he wanted. Complainant said one hundred dollars and interest at ten per cent. Humphrey told complainant, if that was what he wanted, he would execute a mortgage to him and put the. one hundred dollars in it, at ten per cent interest, and let Coonley have the money. Complainant replied he could not do that;1 as the mortgage, from Humphrey to him, with that amount of shave in it, would be good for nothing. Complainant told Humphrey he could execute the mortgage to Coonley, and Coonley could assign it to complainant, and then there could be no advantage taken of it. Humphrey then asked complainant if the money would be forthcoming under that arrangement if he should write Coonley; to which complainant replied, it would be ready any day. Humphrey then wrote Coonley to come out, and he came on the fourth day of June, the two mortgages in question being executed on the next day.

Thus far there is no substantial disagreement in the testimony: for, though complainant in his testimony says that “in the purchase of the mortgage ” (meaning the $412 mortgage) he had “no negotiation with defendant Humphrey,” this must be understood to refer to what took place between himself and Coonley in the actual transfer of the $412 mortgage, and not to the previous conversations or arrangements between himself and Humphrey in reference to the loan, and the mode of securing it: as complainant no where denies any one of the conversations or negotiations specifically stated by Humphrey as above set forth. His own interest, and the theory of a purchase from Coonley, independent of any arrangement with Humphrey, which he seeks to sustain by his own testimony, would naturally have prompted a specific denial of the conversations and agreement so distinctly stated by Humphrey, if these had not been true : and the neglect of complainant even to refer to them for the purpose of admission, denial or explanation, and his resort to such vague general language, which might be true whether the transaction were a purchase or a loan, give to his testimony an air of studied evasion, and excite a suspicion that he is carefully sticking to the shell, rather than giving the substance of the transaction.

The evidence in the case leaves no doubt, that the arrangement entered into on the fifth of June 1860, was, that Humphrey should execute his note, and that he and his wife should execute their mortgage to Coonley for the amount then due on the old mortgage,' which we think did not exceed four hundred dollars (but which complainant obstinately insisted upon calling four hundred and twelve dollars) — that this mortgage should be made payable in one year, with ten per cent interest, that Coonley should assign this mortgage to complainant (with the note), for which complainant should advance and pay three hundred dollars. As this would leave a balance of one hundred dollars due to Coonley on account of the old mortgage, ancl as Humphrey was in pressing need of seventy dollars, it was arranged between them that Coonley should let Humphrey have seventy dollars of the three hundred to be received from complainant, -and that Humphrey and wife should execute to Coonley a further mortgage upon the same property for two hundred dollars, payable in one year, with ten per cent interest, and that this mortgage should not be recorded till after the four hundred and .twelve dollar mortgage to be assigned to complainant. The two mortgages were given, and the larger assigned in pursuance of these arrangements, all on the same day. Thirty dollars of the two hundred dollar mortgage was clearly a bonus or “ shave ’’ as it was called: for though Coonley speaks of his expenses in coming out several times for the money, it is clear from his testimony, in connection with that of Humphrey, that this was but a pretext, to give plausibility to the transaction.

There is some conflict between the testimony of Humphrey and that of the complainant, as to how far Humphrey was a party to, and participated in, the arrangement for the transfer of the mortgage to complainant; and whether it was an independent and bona fide sale of the mortgage, by Coonley to complainant, or only a part of the arrangement for securing the loan previously agreed upon between Humphrey and the complainant, as well as upon the question whether complainant was, at the time, aware of the smaller mortgage given to Coonley, its consideration and amount. But we are entirely satisfied from the testimony of Humphrey, which is full, clear and consistent, as well as that of Coonley, who evidently desired to sustain the theory of a sale, and was a very unwilling witness in behalf of Humphrey, that 911 three of them participated in the arrangement in reference to the larger mortgage; that complainant and Humphrey were the prin. cipal parties to the arrangement, and that Coonley only participated so far as was necessary to carry out the arrangement between them, by assigning tbe mortgage to complainant; that this arrangement was, in substance and effect, for a loan by complainant to Humphrey in pursuance of the verbal agreement previously existing between them; and that it was made to assume, upon paper, the guise of a sale to conceal the usury. And, so far as relates to the question of usury, the transaction, stripped of all disguise, was the same, in legal effect, as if the mortgage of four hundred and twelve dollars had been given by defendants to complainant for a loan of three hundred dollars only.

We are also satisfied from the evidence, that complainant, at the time of taking this mortgage, had full notice of and well understood the arrangement between Coonley and Humphrey in reference to the smaller mortgage given to Coonley; at least that he knew Humphrey was to execute the mortgage to Coonley to secure the one hundred dollars still due to him upon the old mortgage, and also to secure a portion of the three hundred dollars which Humphrey was to receive; though it is possible he may not have known that this latter sum was just seventy dollars, or that the thirty dollars was to be included in the mortgage as a bonus: but both these facts had been fully brought to his notice before he purchased this mortgage, which was long after it was due, and we are strongly inclined to think that he knew all the facts in reference to this mortgage, at the time of its execution; and there appears very clearly to have been an express understanding at the time, between complainant and Coonley, that this mortgage should not be recorded until after the four hundred and twelve dollar mortgage assigned to complainant.

The complainant, therefore, so far as relates to the defense of usury, stands in no better position than if both mortgages (and the accompanying notes) had been executed directly to him, and Coonley had never been concerned in the transaction.

But it is objected, first, that the answer does not expressly aver that complainant had actual notice of the usury; and secondly, that there is a variance between the allegation of usury and the proof.

We see no ground for either of these objections. The answer sets forth the whole transaction as to both mortgages, substantially as proved, and shows complainant’s full knowledge, of them at the time: and as to the larger mortgage, at least, shows complainant to have been directly an active and a principal party to the whole arrangement ■or agreement from which the usury necessarily resulted, and insisting upon that usury as an indispensable condition ■of the loan. An express allegation of notice would, in such case, be idle and superfluous. But independent of this, we think the allegations of notice would have been sufficient; ■as it is expressly alleged that complainant “well knew the consideration upon which both said mortgages and notes were given,” also that, at the time of the execution •of the smaller mortgage, complainant knew that thirty dollars was reserved and taken by Coonley as usury; also that “complainant had notice, before the assignment of said mortgages and notes to him, that in and by each of them, a greater rate of interest than is allowed by law had been reserved and taken, in manner aforesaid” (referring to the facts previously stated in the answer substantially as we have above stated them).

As to the second objection, it is urged that the usurious agreement is not proved as alleged, inasmuch as the allegation as to the larger mortgage, is, that the agreement was for one hundred and twelve dollars usury, whereas the proof shows that all the usury was put into the smaller mortgage: and, therefore, that the larger was not usurious. The fallacy of this position is too palpable to require comment.

The fact that the one hundred dollars (for the difference between this amount and the one hundred and twelve is not urged in this connection) was included in another mortgage to Coonley, as the balance still due him on his old mortgage, can in no way alter the fact that the four hundred and twelve dollar mortgage was given to secure a loan of three hundred dollars only — and the effect would have been the same whether this mortgage had been given or not, so long as Humphrey remained liable to Coonley for this amount, and so long as the fact remains that the complainant loaned and Humphrey received but three hundred dollars on his mortgage of four hundred and twelve.

This two hundred dollar mortgage was not originally given for complainant’s benefit, but for Coonley’s. Fifty dollars was paid upon it by Humphrey to Coonley, May 16th, 1862, and it was subsequently, on the same day, assigned to complainant.

It remains only to consider the effect of the tender.

It is clearly proved, and the fact is not disputed, that, on the 28th day of July, 1862, Humphrey tendered to complainant the full amount due on the two mortgages, exclusive of the bonus in each case, and the interest thereon — in other Avords, exclusive of what we have found to be usury. This tender was refused by complainant, and Humphrey, with full notice to complainant, deposited the money on the same day with a Mr. Simonson, near complainant’s residence, to be paid to complainant when he should choose to receive it. But the money was not brought into Court, nor does it appear by the evidence that the tender was kept good up to the time of the hearing, though it is shoAvn to have been still in Simon-son’s hands Avhen the evidence was taken.

The naked question, therefore, is, whether the tender alone, made after default, or failure to pay on the day when due, had the effect to discharge the mortgages, or release the land from their incumbrance.

We think this question must be answered in the affirmative.

A mortgage is no longer in this State what it was originally at common law, a grant of the land to the mortgagee, defeasible upon condition 'subsequent, and to become absolute on failure to pay at the specified day. It is but a security for the debt. The'estate in the land is still in the mortgagor: and payment at any time before foreclosure or sale, or (in case of foreclosure by advertisement) at any time before the expiration of the time of redemption — including, of course, any legal costs which may have been made — will discharge the mortgage in the same manner as if made on the day of payment mentioned in the mortgage; and no re - conveyance is necessary to vest the title in the mortgagor, in the one case more than the other.

The mortgage, therefore, is but a lien upon the land as security for the debt; and, so far as relates to the effect of a tender, we think this lien is precisely analogous to' that of a lien upon, or a pledge of, goods as security for a debt. And in such case it is well settled that, while a tender of the amount due does not, without acceptance, extinguish the debt, nor release the debtor from personal liability, it extinguishes the lien, and the creditor loses his right to all collateral securities. See Moynahan v. Moore, 9 Mich. 9.

We have been saved the labor of a full discussion of this question, by the decision of the same question here involved by the Court of Appeals in New York, in Kortright v. Cady, 21 N. Y. 343. And in the able opinions of Davies and Comstock, Judges, given in that case, we fully concur.

We think, therefore, the lien of the mortgage was wholly discharged by the tender; and that complainant can look only to the personal responsibility of his debtor. And, this being a proceeding to foreclose — or, in other words, to enforce the lien of the mortgages, the Court below was right in dismissing the bill, and the decree of that Court must be affirmed, with costs.

The other Justices concurred.