author: Green, J.

text:
    Ives v. Kimball.
    Under the act of April 12, 1827, Laws 1883, p. 281, the record of a deed executed and acknowledged in the state of New York, in conformity with its laws, with the acknowledgment certified by the officer taking it, in his official capacity, is evidence, without proof of the official character of the person taking the acknowledgment, or the genuineness of his signature.
    A deed described a piece of land, as all that tract or parcel of land situate in the town of Logan, county of Lenawee, and territory of Michigan, being known and distinguished as the east half of the north west quarter of section twenty one, in townshi]D number twenty six south, of range number three. There was no surveyed township number twenty six in Logan. Held, that the number of the township might be rejected, as repugnant to the other parts of the description. And, it appearing from the act organizing the town, that there were two sections numbered twenty one in the town, corresponding with the description in the deed, one in surveyed township numbered six, and one in surveyed township numbered seven, both in range three east, the same was held not to be a patent ambiguity, although the court was bound judicially to take notice of the act organizing the town, and that parol evidence of surrounding circumstances and collateral facts might be received to show which of the two sections was intended by the grantor.
    A record made in October, 184.7, by a probate court, of a decree of the same court made in February, 1837, admitting a will to probate, is good evidence of the probate of the will.
    A certificate of acknowledgment to a deed described it as the foi'egoing mortgage. Held, a clerical error, and that the certificate was sufficient.
    To entitle a tax deed given in 1838, to be received as evidence of title, the regularity of the proceedings prior to the tax sale must be shown.

    Variance.
    Error to Lenawee Circuit Court

      Cooley and Bills, for plaintiff, in error.

      Tiffany and Beaman, for defendant, in error.

       The tax was levied and the land sold under the act of April 22, Laws of 1838, p. 06, sec. 15. The law has since been changed a number of times. Vide note to Scott v. Detroit Young Men’s Society’s Lessee, 1 Doug. Mich. R. 121, and R. S. 1846, p. 114, sec. 82.

   By the court,

Green, J.

Several questions of considerable importance are presented by the record in this cause, and which, will be examined in the order in which they are presented in the assignment of errors.

First: Did the judge who tried this cause in the court below, err in admitting in evidence the record of the' deed from Daniel Hunt and Helen his wife, to Cornelius Or Bogart, without further evidence of its due execution and acknowledgment ?

The deed purports to have keen executed in February, 1884, and to have been acknowledged on the 10th day of that month, in Niagara county, New York, before Daniel Van Horn, one of the judges of the court of common pleas of said county. The statutes of the state of New York, in force at the time of the execution and acknowledgment of the deed, were introduced in evidence, by which it appeared that it was executed and acknowledged, and certified by the proper officer, in conformity with said statutes.

It was objected that the record was not admissible in evidence, unless it was also proved that the person before whom the acknowledgment purported to have been taken, was such officer as he represented himself in his certificate to be, and that his signature was genuine; and also that the register had no authority to record the deed, without evidence that it was executed and acknowledged according to the laws of the state of New York, and that such evidence should appear upon the record. ■

By sec. 7 of the act of April 12, 1821, Laws 1838, p. 281, which was in force at the date of the deed, it is provided, “ That all deeds and conveyances of lands, tenements and hereditaments, situate, lying and being within this territory, which shall hereafter he made and executed in any other territory, state or country, whereby such lands, tenements or hereditaments shall be conveyed, in whole or in part, or otherwise affected or encumbered in law, shall he acknowledged, and proved and certified, according to and in conformity with the laws and usages of the territory, state or country in which such deeds or conveyances were acknowledged or proved, or in which they shall be acknowledged or proved: and all such deeds and conveyances are hereby declared effectual and valid in law, to all intents and purposes, as though the same acknowledgments had been taken, or proof of execution made, within this territory, and in pursuance of the laws thereof: and such deeds and conveyances, so acknowledged or proved as aforesaid, may bo admitted to be, and shall be, recorded in the respective counties in which such lands, tenements or hereditaments do or may lie.”

By the 6th section of the same act, the record of every deed, conveyance or other writing, which, by virtue of that act, should be entitled to be recorded, might, when so recorded, be read in evidence in any court of the said territory, without further proof.

The record, and not the original deed nor a transcript of the record, having been offered in evidence, the only material consideration involved in this question is, whether the deed was properly recorded. Had the deed been acknowledged within the territory of Michigan, the certificate of acknowledgment in due form, purporting to have been made by a proper officer, would unquestionably have been sufficient evidence of the official character of the person taking the acknowledgment, and of the genuineness of his signature, to entitle it to be recorded. Such has been the uniform construction of this statute, and its correctness has never been questioned to my knowledge.

Did the legislature intend to give the same effect to a certificate of acknowledgment of a deed in another state ? I see nothing in the statute itself to indicate any other intention. • It contains no provision authorizing the register to take proof of the official character of the person taking the acknowledgment, por of the genuineness of his signature, nor of the conformity of the .execution and acknowledgment to the laws of the state or country in which the deed was executed. Even if such authority could be implied, the register, not being authorized or required to make any record of such proofs, no record thereof would be evidence, if made by him; and it would be presumed, in the absence .of any evidence to the contrary, that he had done his duty as a public officer, and taken the necessary proofs before recording the deed.

The case of Lessee of Livingston v. McDonald, 9 Ohio R. 168, seems to be in point upon this question. That was an action of ejectment, and the plaintiff, amongst other evidence, offered a certified copy of a deed from John Cleve Symmes to James Henry, proven by one of the subscribing witnesses before Reynold Keen, who certified that he was one of the associate judges of the court of common pleas of the city and county of Philadelphia. The deed was recorded in Hamilton county, while Butler, in which the land in question was situated, constituted a part of that county. It was objected to on the trial, on the ground that the official character of Keen was not sufficiently shown, and was rejected by the judge. The supreme court, on a motion for a new trial, held, that the deed was properly recorded, and that the certified copy of the record was competent evidence, and granted a new trial on the ground that it was improperly rejected. The law of Ohio, in force at the time when the deed from Symmes to Henry was executed', was substantially the same as that of 12th April, 1827, before referred to.

Second: Did the judge err in admitting parol evidence of the intention of .Daniel Hunt to convey the premises in question to Cornelius C. Bogart, and to explain and give effect to said deed ?

The description contained in the deed from Hunt and wife to Bogart, is as follows: “All that tract or parcel of land situate in the town of Logan, county of Lenawee and territory of Michigan, being known and distinguished as the east half of the north-west quarter of section twenty-one, containing eighty acres, and the north-west quarter of the northwest quarter of section number twenty-one, in township number twenty-six south, of range number three, containing in all one hundred and twenty acres of land, be the same more or less.”

The township of Logan, as organized by an act approved April 12, 1827, jLaws of 1827, p. 359,) embraced “the south half of the surveyed townships numbered six, in ranges one, two, three, four, five, and townships numbered seven, in one, two and three,” in the county of Lenawee, south of the base line, and east of the principal meridian: and such appears to have been the extent of the township of Logan at the date of the deed.

The plaintiff, upon the introduction of the record of the deed in evidence, offered to prove, by parol, that there was- no such township as twenty-six in Logan; which proof was objected to, on the ground that the fact proposed to be proved appeared by the statute, of which the court would take judicial notice. The act organizing the township of Logan is a public statute, and, as such,, the courts of this state are bound to take judicial notice of it; and it follows, inasmuch as the number of the surveyed townships embraced in Logan are specified in the act, that the court must judicially take notice that no township numbered twenty-six is included within its limits. This fact, then, need not have been proved: but as the proof of it could not tend either to settle or unsettle any thing affecting the case, the admission of it cannot be regarded as error. The court being cognizant of this fact, and it being conceded that there was no surveyed township numbered twenty-six in the county of Lena-wee, nor within the territory of Michigan, it is at once. apparent that this call in the deed is- repugnant to every other portion of the description.

The other portions of the description call for the east half of the north-west quarter of section number twenty-one, range number three, in the township of Logan, county of Lenawee and territory of Michigan : all of which is perfectly consistent. The number of the. township, then, it seems very clear, must have been mistaken in the deed, and being false, it must be rejected. But this does not, necessarily, render the deed void.

In the case of Boardman and others v. The Lessees of Reed and Ford et al., 6 Peters 345, Mr. Justice McLean, delivering the opinion of the court, says: The entire description in the patent must be taken, and the identity of the land ascertained by a reasonable construction of the language used. If there be a repugnant call, which, by the other calls in the patent, clearly appears to have been made through mistake, that does not make void the patent.” In that case, the land was described in the patent as lying in the county of Monongalia, and further described by reference to natural monuments, and it apeared that the land described by the monuments was in the county of Harrison, and not in Monongalia; and that part of the description which related to the county was rejected, and effect given to the jDatent.

In the case of Stringer and others v. Lessee of Young et al., 3 Peters 320, the same question arose upon a similar patent, and Chief Justice Marshal], delivering the opinion of the court, says, that the “ misnomer of the county must admit of explanation: and if explanation can be received, the patent is not absolutely void.”

The question, in the case of Loomis v. Jackson, 19 John. R. 449, arose between a party claiming under a mortgage, and a subsequent purchaser from the mortgagor. In the mortgage, the land was described as being a part of lot No. 51: in the déed, as being a part of lot No. 50. The description in the deed and mortg£(ge were the same in every respect, except that the deed expressed the true number of the lot. Both instruments contained other calls from which the land could be identified, and the court rejected the false number in the mortgage, and held it valid.

Indeed, the doctrine, that “if there be certain particSfers sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance false or mistaken, will not frustrate the grant,” accords too plainly with the suggestions of good sense and the dictates of morality,” ever to be seriously questioned. .

- But in order to give effect to the deed in' question, it is necessary to determine whether a sufficient description remains from' which the land intended by the grantors to be conveyed, can be- ascertained. By a reference to the statute under which the township of Logan was organized, it appears that the south half of township numbered six, and township numbered seven south, both in range three east, were embraced in Logan: and there are, consequently, two sections twenty-one, alike corresponding- with the description in the deed^and there is nothing upon the face of the deed which shows which section was intended. It is therefore insisted that the description presents a patent ambiguity, which cannot be explained by parol evidence, and that the deed is, therefore, void for uncertainty. This ambiguity, it must be observed, does not arise from the equivocal character of the language employed by the grantors to express their intention, but from a fact which is not at all apparent upon the face of the instrument; and whether that fact bo judicially known to-the-court, or be shown by parol evidence, I conceive to be entirely immaterial, and if so, then this is precisely the familiar case of a latent ambiguity, which may be explained by parol. It must bo admitted at once, upon a bare statement of this ease, that if parol evidence is- legally admissible1 for that purpose, it might bo very easily determined which of the two sections twenty-one was intended. There is no more useful, just and practical rale of law, than that which admits evidence of surrounding circumstances' and collateral facts, within certain well defined limits, for the purpose of enabling-courts to ascertain and carry into effect the intention of contracting- parties. The cases in which this rule has been applied, are almost innumerable.

In tlie case of Fish v. Hubbard’s administrators, 21 Wendell 651, the action was upon a covenant executed by the intestate, whereby he agreed to furnish the plaintiff “ with water out of the mill darn sufficient to-carry the fidling mill' and carding machine at aB times, except either in drought in summer, or the usual times of freezing in winter, and at all times to have such a share as is sufficient to carry one wheel when either of the wheels of the grist mill and saw mill are running-”

Mr. Justice Cowen, delivering the- opinion of the court, says: “ The-learned judge at the circuit thought the description of the property in the covenant so entirely uncertain, that the instrument was inoperative and void. And it is clearly so, if we are bound to stop with reading it, and cannot go beyond the face of the contract in search, of its meaning.” The court in that case, after a very elaborate review of tlie authorities, including Lord Bacon’s rule as to ambiguities, decided that the extrinsic or collateral facts offered in evidence at the trial to show what mill dam, saw mill and grist mill, &c., were intended by the intestate, were improperly rejected,, and awarded a new trial-

Mr. Grecnleaf,. in his valuable treatise on the law of evidence, section 300, remarks, that the patent ambiguity of which Lord Bacon speaks, must be understood to be that which remains- uncertain to the court, after all the evidence of surrounding circumstances and collateral facts, which is admissible under the rules already stated,is-exhaustedbut that “■ if the court, placing itself in the situation in which the testator or conti acting party stood at the time of executing the instrument,, and with full understanding of the force- and import of the words, cannot ascertain his meaning and intention from the language of the instrument, thus illustrated, it is a case of incurable and hopeless uncertainty, and the instrument, therefore, is so far inoperative and void.”

After a careful examination of all the authorities cited by counsel, and many others upon this point, I have no doubt this was- a- proper case for the reception of 'parol evidence to show which of the two sections number twenty-one, in range three, in Logan, was intended to he" conveyed by the description in the deed.

It appears from the bill of exceptions, that Hunt was allowed to testify directly, that it was his intention to convey to Cornelius Bogart the land in question. Had this been the only evidence given to the jury upon that point, or had there been, any contradictory evidence, or any ground for doubt from file evidence of surrounding circumstances and collateral facts, independent of this direct testimony of intention, per- ■ haps the judgment should be reversed for this cause. But is there any probability that the jury might have been influenced by it in making up their verdict ? It appeared that Hunt owned the land in question at the time of the conveyance to Bogart, and that this was the land which he had agreed to sell to him. There was no evidence given or offered to show that Hunt owned any other land in Logan, corresponding with the description in the deed: and, in the absence of such evidence, it must be presumed that he did not. See Loomis v. Jackson, 19 John. R., before cited. These facts and circumstances impel the mind irresistibly to the conclusion, that Hunt intended to convey the land in question to Bogart, without any regard to the direct testimony of Hunt as to what he actually intended. The language of the deed itself implies that the grantor is the owner of what he grants, and, in connexion with the other evidence adduced, seems to me conclusive as to the intention.

Third: It is objected that the judge erred in admitting in evidence the record of the paper purporting to be the will of Cornelius C. Bogart. The will appears to have been regularly admitted to ¡rrobate in February, 183V, but not recorded until October, 184V, upwards of ten years from the tíme-of proving it: and it is insisted that, at the time the will was recorded, there was no law in force requiring such a will to be recorded, and that therefore the record was no evidence. Section 2, chapter 91, of the Revised Statutes of 1846, isas follows: “ Every probate court shall be a court of record, and have a seal; and each judge of probate shall keep .a true and fair record of each order, sentence and decree of the court, and of all wills proved therein, with the probate thereof,” &c. The limited construction contended for by the counsel for the defendant in error, would, at each successive election and qualification of a judge of probate, leave many orders, .decrees, wills, with the probate thereof, letters testamentary and of administration, &e., unrecorded, without any power in the new incumbefit of the office to record them. This construction would do violence to the letter as well as the spirit of the statute, and is wholly inadmissible. The judge of probate is required to keep a true and fair record of each order of the court, and of all wills proved therein, with the probate thereof. When the record has been made by his predecessor, it is his duty to preserve it; but if he find in the probate court, a will proved therein, and not recorded, it clearly becomes his duty to make a true and fair record of it. The court of probate for Lenawee county has existed since the organization of the state government, and the admission of a will to probate ton years ago, is as much an act of the court as if it had been done at the time the will and probate were recorded.

Fourth: It is also assigned for error, that the judge erred in admitting the record of the deed from Isaac Bogart to Redfield and Kimball in evidence; and it is claimed that this deed was not properly upon record, for want of a proper acknowledgment. The certificate of acknowledgment .appears to have been made at the foot of the deed as follows:

'• State of Michigan, county of Lenawee, ss. — Personally appeared before me the above named Isaac Bogart, to me known to be the person described as the grantor in th & foregoing mortgage, and acknowledged that ho signed, sealed and delivered the same for the uses and purposes therein mentioned. Also personally appeared Cynthia Bogart, who on a private examination by me, separate and apart from her husband, acknowledged that she executed the said mortgage free, without fear or compulsion from any one. Given under my hand at Adrian, the seventh day of November, 1845. P. Morey,

Notary Public, Lenawee Co.”

The question arises upon the misnomer of the instrument. It is described as “ the foregoing mortgage,” in the certificate, instead of the foregoing deed.” The mistake is evident. It seems to have been a mere clerical error, and the instrument, at the foot of which the certificate was made, appearing to be clearly indicated, the certificate must be deemed sufficient.

Fifth: The deed from Hewit to Isaac Merritt and John Merritt was properly excluded. It was a tax title deed given in 1838, and no evidence was offered to show that the proceedings prior to the sale for taxes were regular. 1 Doug. Mich. R. 119; 2 id. 204; and Harr. Ch. R. 1.

Sixth: The only remaining ground of error insisted upon in the argument submitted is, that the judge erred in deciding that there was no variance between the trust set out in the declaration, and that shown in proof. Tho trust set out in the declaration is, “ to sell the said premises and apply the money which they should obtain from the sale of said land, to the payment of certain debts of said Bogart; and to pay the residue, after payment of said debts, to Cynthia Bogart, the wife of the said Isaac Bogart. In the declaration of the trust, proved on the trial, the grantees undertook, amongst other things, to pay to Elihu L. Clark the amount of two promissory notes purporting to be signed by Joseph Bailey; and it is claimed that it was not shown on the trial that the amount of these notes constituted a debt of Bogart. No other evidence appears to have been offered in reference to these notes, than what appears from the instrument declaring the trust. The fact that provision is made by Bogart for the payment of the notes, seems to me to imply that, though purporting to be signed by Bailey, they were either given to secure a debt of Bogart, or that he had in some way become obligated to pay them: and if this assumption be correct, then there is no apparent variance between the trust set out in the declaration in the cause, and that shown in proof. Even if the implication were otherwise, and the amount of these notes did not strictly appear to be an original debt of Bogart, yet his making- provision for their payment renders it so far his debt as to satisfy the averment in the declaration.

Finding no .error, therefore, in the record in this cause, the judgment of the circuit court therein must be affirmed, with costs to tho defendant in error.

Judgment affirmed.


source: Caselaw Access Project

author: Miles J.

license: Public Domain

text:
    Monroe v. Township of Rowland.
    Plaintiff sued defendant on the following instrument: “The commissioners of highways of the township of Rowland will pay the bearer twenty-two dollars when funds in roacl district number three and four.
    Alexandee Palmee,
    Rowland, Peb’y 22d, 1841. IIeney Osewell,
    Commissioners of highways in the township.”

      Sold,, it was not a warrant or order upon the township treasurer, under the act, Sess. L. 1841, p. 159, sec. 5, but a draft drawn by commissioners upon themselves, and that an action could not .be sustained upon it against the township.
    Case reserved'from Hillsdale Circuit Court. Demurrer to declaration.

      Well arid Howell, for plaintiff

      Mu/rphy and Kinman, for defendant.
   By the court,

Miles J.

Tlie declaration contains a special count upon an instrument in the following form :

The commissioners of highways of the township of Rowland will pay the hearer twenty-two dollar's when funds in road district number three and four.

Rowland, Feb. 22d, 1841.

(Signed) Alexander Palmer,

Henry Cornwell,

Commissioners of highways in the township.” >

'There are two other special counts upon similar instruments, and a ¡common count for work and labor and upon an account stated.

A demurrer is put in to the special counts: to the common counts the defendant plead the general issue.

The other two instruments bear date on the 25th day of March, 1841.

There is an averment in each count that the instrument therein called a “ road warrant” was delivered by the commissioners to the bearer thereof in payment of road work, and for the repair and construction of roads and bridges in the districts therein named.

It is further averred that the plaintiff is the holder and owner of the orders: that they were delivered to' him- before the commencement of this suit: that the township was in funds, by reason of the payment "of road taxes, on the first day of April, 184V, and that on that day he demanded payment of the orders from the township, which was refused.

The conclusion of law drawn by the plaintiff from these facts, is-,, that the township is thereby rendered liable to pay the amount of the orders. The argument is, that the orders, as they are called, merely imply that the specified amount in each, of highway moneys in the' township treasury was due to the holder for work and labor, and that the power to make them is necessarily incident to the' office of commissioner e£ highways.

This proposition is, of course, denied by the defendant: and it re-mains to he determined, by a careful examination of the statutes relating to this proceeding, whether the plaintiff’s declaration is in law sufficient.

Ry the statute existing at the time those instruments were made, it is1 provided, that the sum annually raised for the support of roads and bridges is to be paid to the township treasurer. R. S. 1838, p. 84, sec, 5. He is required to pay over and account for all moneys belonging to-his township, according to the1 order of the township, “ or the officers thereby duly authorized in that behalf.” R. 0.-1838, p. 65, sec. 45-. Both these statutes were re-enacted in the Revision of 1846.

We are not aware that, previous to the act of April, 1841, hereafter referred to, any provision was made by law for the particular mode in? which the funds for this purpose were to be- drawn from the hands of the township treasurer; though the commissioners would seem to he clearly entitled to control this fund, to enable them to discharge the duty of keeping the roads and bridges in repair, R. S.-1838, 4 sub. sec 1, p, 1-09, and to account to the township board for all moneys received. This fund- includes not only moneys received by the commissioners, by way of fines and commutations, hut also a sum annually raised for this express purpose, and assessed upon the township. R. S. 1838, pp. 109,, 110, sec. 4.

By the act of 1841, p. 159, sec. 5,- it is provided that no money shall he drawn from the town treasury by the commissioners of highways, in payment for any labor, contract or materials furnished, except by warrant signed by a majority of them, accompanied by their certificate, stating that the labor has actually been done, contract fulfilled and materials furnished, for which the amount of said warrant is to apply in payment. This statute was in force at the time this suit was broüght.

One objection taken by the defendant to the sufficiency of the spe-, cial counts is, that they contain no averment that such certificate was presented to* the township treasurer'at the time demand of payment was made. .

In my judgment this is immaterial, as these instruments are not in the shape of warrants, or orders upon the township treasurer, but rather of a draft drawn by the commissioners upon themselves: and if we are correct in supposing that under the law as it stood before the act of 1841, the commissioners were entitled to receive and control the funds properly belonging to their department, then this form of obligation might seem proper, as evidence of indebtedness to the holders, to be liquidated when the commissioners were in funds.

Waiving, for the present, the consideration of the inquiry, whether the commissioners could in this way bind the township, the question may well be asked, whether the money should not go through the proper channel to the commissioners, to enable them to discharge their debt and take up their obligation.

But it is argued, that their annual report would include an account of this expenditure, and to whom; and therefore the funds, when received into the hands of the treasurer, would belong to the holders of the obligations, and they be entitled to receive the amount on their presentation* The proposition seems to be, that the commissioners have the right to contract these debts and compel the township to pay them, not in the regular course through their hands, or upon warrant and certificate, under the act of 1841, but upon presenting- to the township the obligation of the commissioners promising to pay. This would completely avoid the act of 1841; and if the counsel for the plaintiff will tell me how these papers are to be made sufficient vouchers for the treasurer, upon a settlement by him, with the township board, I will consent to his right to recover in this case.

But we do not see how the plaintiff can recover without the aid of the statute of 1841, unless we consent to give such a construction to the statutes as to allow the commissioners of highways to contract debts with different individuals, and. upon rendering' an account of such debts to the township, to enable the holders of their paper to enforce its payment by the town.

This seems so entirely' contrary to the whole scope, intention, and spirit of the act, that we must refuse our' assent to' su'ch construction of it

It is insisted, however, that the declaration is sufficient, under the act of 1841, without an averment of'presenting the certificate; that this is a matter of evidence' upon th'e trial. In this we' think the plaintiff mistaken. If a demand is at all necessary, it must be such as is required by the act, and be specially aVerrecf. The statute is express in its terms of prohibition, non constat, that the treasurer would not have paid the money if the proper evidence of indebtedness had been presented.

We conclude, then, the demurrer must be sustained, and that it be so certified to the circuit.

Certified accordingly.


author: Whipple, C. J.

text:
    Fox et al. v. Willis et al.
    A deed fraudulent as'to creditors is not void but voidable, an'd can be avoided only by a judgment creditor, or one claiming under him, who lias taken out execution and levied on tlie property fraudulently conyeyed.
    Where a debtor conv'ey'éd pfó'pérty in trust for creditors, ■which conveyance was fraudulent as to the creditors, and afterwards gave a mortgage on a part of the same property to a creditor who was aware- of the previous conveyance, for tho payment of a judgment the creditor had against him: Held, that the mortgagee, though a judgment creditor, inasmuch as íie'hadnot taken out execution on his judgment and levied on the land fraudulently conveyed, could not call in question the validity of the prior conveyance; and that .he was not protected against it as purchaser for a valuable consideration, by ch. 1, tit. 6, part 2, R. S. of 1888.

      Appeal from the Court of Chancery. Case reported' in' Walk. Ch. R. 535. The facts of the case are fully stated in the opinion of the court.

      Barstow and Lockwoodf for complainants.

      Fraser and Davidson, for defendants.
   By the court,

Whipple, C. J.

This cause comes before this court by appeal from the court of chancery.

Thajacts in the case, are briefly as follows: Clarke, being indebted, and probably insolvent, executed to one Dallee a general assignment of all his property for the benefit of his- creditors; the assignment bears date 9th June, 1838. On the 20th June, 1838, Fox and Coleman, having a claim against Clarke and one'McCreary, obtained judgment-against them in the circuit court of the United States. On the 11th July, 1838, the'defendants, Willis’, also obtained a judgment in the same court against Clarke and McCreary, founded upon a pre-existing demand. Upon the 2-7tb Feb., 1839, the Willis’ issued their execution on their judgment. On the 7th August, 1839, Dallee, the assignee, died intestate. On .the 20th August, 1839, Clarke executed to Fox and Coleman a mortgage, to secure the payment of their judgment. On the 1st of October, 1840, the Willis’ filed their bill in the circuit court of the United States to set aside the assignment' made by Clarke to Dallee. On the 1st March, 184'2, the' court made a decree setting aside the assignment as fraudulent; and the property in dispute in the present case having been placed in the hands of Drew, the receiver, he sold the same, by order of the court, to satisfy Willis’ judgment. Fox and 'Clarke having filed a bill to foreclose their mortgage, the Willis’, who became the purchasers at the sale by the receiver, come hr and contest the validity of the mortgage.

' The only question presented for our consideration, is, whether the prior mortgage of the complainants shall prevail against the subsequent conveyance by the receiver to the Willis’. The chancellor made a decree giving effect to the mortgage, to reverse which the Willis’ prosecute this appeal.

It is to be observed, that the assignment by Clarke was executed previous to the Revision of 1838, which took effect on the 1st August, 1838; and that the conveyance to Fox and Coleman, by way of mort;gags> was on the 20th August, 1839, a little more than one year after the revision took .effeet. Tlve .validity of the assignment, therefore, is to be tested by the Revision of 1833, and tire mortgage by the Revision of 1838.

The Revision of 1833 embraces the provisions of 13th and 27th of Elizabeth, in respaet to conveyances to defraud creditors and purchasers. By the 13th of Elizabeth, it is conceded by counsel, that the assignment executed by Clarke to Dallee-was constructively fraudulent, inasmuch as it was burdened with conditions which contemplated a release by his creditors before they could avail themselves of its provisions.

The right ©£ insolvent traders to execute -voluntary assignments for the 'benefit of their creditors, is unquestioned, when they do not conflict with the policy of the bankrupt laws; they are regarded as substitutes for a commission in bankruptcy. Such trust conveyances, containing covenants <on the part of the trustee, and stipulations beneficial to the creditors, are -to be deemed and taken as founded upon a valuable consideration. The trustee, therefore, is, in legal contemplation, a purchaser for a valuable .consideration, and becomes vested with the legal estate in the property assigned. 2 John. Ch. R. 189; 10 Pickering 413; 2 Kent’s Com. 533. And it is always competent for the creditors, who are the parties beneficially interested in the conveyance, to compel the execution of the (trust, though they he not at the time assenting, and parties to the assignment. 4 John. Ch. R. 529; 11 Wheaton 97; 4 Mason 206; 2 Kent’s Com. 533. It is also said, that in respect to persons who are absent, their assent to such assignment will be presumed, until their dissent is expressed, if the conveyance be "beneficial and founded on a valuable consideration. 2 Kent’s Com. 533. If the assignment is-made’ to trustees, and with their knowledge and privity, the assent of the creditors is not necessary to its validity. It appears affirmatively, on the face of the assignment by Clarke, that Dallee assented to it, and undertook the execution of the trust which devolved upon him.

Having laid down some of the general rules applicable to voluntary assignments by insolvent debtors, I shall now proceed to consider the questions raised by counsel on the argument, and involved in the case before us. That they are not free from difficulty, is readily admitted. If considered, with reference simply to the provisions of the statutes h^ which the rights of'the parties are to he determined, the burden would he comparatively easy; but when considered in the light of judicial decisions, those difficulties increase to an extent which renders it almost impossible to arrive at conclusions satisfactory to - one’s self. In the wide range of subjects which have claimed the attention of courts of justice, I know of none in respect to which there has been a greater diversity of judicial opinion than that upon which the judgment of this court is now to be pronounced. The sages of the law, both in England and this country, have entertained opinions diametrically opposite upon the true construction of statutes, alike distinguished for the clearness and simplicity of the language in which they are couched, as in the object the legislature had in view in their enactment. The industry of counsel has collected many of the adjudged cases to be found in the books upon the vexed questions which were so ably discussed. Those cases have been carefully examined, with many others which fell under my observation in the course of the somewhat minute and extended examination I have felt it my duty to give to the case before us. A review of those cases would involve an amount of labor I am not dis_ posed to encounter, and would extend this opinion to an unreasonable length; the most I shall attempt, is, to state the conclusions to which I have arrived, and refer to such of the adjudged cases as support them.

It is proper to bear in mind, that the universally received doctrine now is, that the statutes of the 13th and 27th Eliz, are a legislative recognition of the common law: this fact will aid us in giving to these statutes a true construction.

The proposition sought to be maintained by the complainants is, that being creditors of Clarke, the assignment was, as to them, void; and being void, Clarke had a right to execute to them a. mortgage for the security of their debt, upon lands previously assigned to Dallee.

It is admitted that, in respect to conveyances to defraud creditors, the statute declares them “utterly void;” and yet in the same section in which these words are fouijd, such conveyances are to be deemed and taken as “ utterly void ” only as against the person or persons whose actions, suits, &c., “ might be in any wise disturbed, hindered, delayed or defrauded.”

Construing, therefore, the last clause of the section by what precedes it, we are enabled to arrive at the true interpretation of the words “ utterly void.” It does not mean to declare that such conveyances are mere nullities — void to all intents and purposes — but simply voidable. No act can be regarded as absolutely void, and of consequence a mere nullity, which takes effect as to some purposes. Chief justice Spencer, in the case of Anderson v. Roberts, 18 John. R. 515, gives a true interpretation of the words “utterly void,” as used in the statute of 13th Eliz., when he says, that “ whenever the act done takes effect as to some persons, and is void as to persons who have an interest in impeaching it, the act is not á nullity, and therefore, in a legal sense, is not utterly void, but merely voidable.”

At the common law, such conveyances are, as against the fraudulent grantor and his representatives, valid and effectual: if so,, it cannot be contended that the statute, which is simply in affirmance of the common law, establishes a new rule. Mr. Justice Story, in the case of Bean v. Smith et al., 2 Mason 252, says, “ a conveyance to defraud purchasers, or to defraud creditors, is not utterly void, as has been sometimes supposed: it conveys the estate effectually as between the parties and their representatives, and the estate may be maintained against all persons but those whom it was intended to defraud.”

Many .other authorities in corroboration of these views might be cited, but it is deemed unnecessary to notice them at this time, especially as they will be found sustained by cases I shall have occasion to refer to before concluding this opinion.

It may be proper to remark here, that although a voluntary assignment to defraud creditors is not “ utterly void,” it may be admitted that courts, in administering remedies, treat the instrument as void in respect to those who are “ hindered, delayed or defrauded,” in their “ actions, suits,” &e. Or in other words, for the purpose of satisfying the claims of creditors, will treat the property conveyed, as though it still remained in the hands of the fraudulent grantor.

We are now prepared to consider the question whether Clark, being indebted to the complainants, could grant, and the complainants take a mortgage upon any of the real estate described in the assignment to Dallee, as a security for their debt. This will lead us to a consideration of the course proper to be pursued by a creditor who is “ delayed, hindered or defrauded,” in his “ actions, suits or debts,” within the meaning of the statute of the 13th Elizabeth.

Roberts, in his Treatise, on the construction of the statutes of 13th and 27th Eliz. p. 422, says: “The statute 13th Eliz. does not enlarge .the natural jurisdiction of any court, by furnishing any new remedies. It merely avoids the voluntary aet, leaving the rest to the consequences and remedies of law: where the lands and .chattels are voluntarily and fraudulently transferred, the statute 13th Eliz. avoids the transfer as against creditors, who have a right to regard the property as unaltered, and still subject to their executions; but the statute helps them no further than by allowing them to avail themselves of this construction by the judicial remedies which flow from their lights.”

The form of the remedy, and the .eircumstances under which it is administered, in favor of a creditor defrauded, under the 13th EJiz., is thus stated by Hovenden, vol, 2, p. 75: “ To induce a court of equity to set aside a settlement, as being fraudulent under the 13th Eliz., the complaint must be made by a creditor who has put himself into a situation entitling him to apply for the aid of the court, by having obtained a judgment for his debt, and showing that, by the settlement, he is defrauded of the fruits of his judgment: for a voluntary settlement is void under this statute only as against creditors, to the extent in which it may be necessary to deal with the estate settled for their satisfaction: to every other purpose it is good: satisfy the creditors, and the settlement stands.”

The text is illustrated by the case of Colman v. Crocker, 1 Ves. 161. George Colman, junr., .committee of his father, brought a bill to set aside a voluntary settlement made by the lunatic, in trust for the benefit of the defendant. An order was moved for in behalf of the defendant, to sell the plate, linen, chin?, &e., to let the house, and to bring the property into court. The solicitor general, in opposition to the motion, stated that the lunatic’s property was insufficient to pay his debts, and that the settlement was obtained by fraud. The lord chancellor refused the order, on the ground that there must be a creditor to complain of the fraud,, who had put himself into a situation to do so, by getting judgment for his debt, and stating that by the settlement he is defrauded.

In the case of Spader and others v. Davis and Hadden, 5 John. Ch. R. 281, it appears that Davis had executed to Hadden an assignment, in trusty to pay all his creditors on condition” that they would release and discharge him within thirty days. Hadden sold the assigned property and converted the same into money; and the trust having, as he alleged, become void in consequence of the creditors not having come in, he paid the assignor of those moneys from time to time, leaving a balance in his hands, at the time his answer was filed, of about <f>8'00. The chancellor, upon these facts, remarked, “ that the complainants, at the time of filing their bill, had acquired, as execution creditors at law, a priority of right, valid in equity, to the trust moneys belonging to Davis, in the- hands of Hadden; and that all payments of the same by Hadden to Davis, subsequent to the filing of the bill, containing notice of that right, and of their claim in pursuance of it, were made in his own wrong.”

This case shows that the' assignment;- although fraudulent, was yet-Valid as between the parties, and continued such, until impeached by an execution creditor. Indeed, so effectual was it as between the parties, that the trustee was held to account only for what remained in his hands of the trust moneys at the time of the filing of the bill.

In the case of Brinkerhoof v. Brown, 4 John. Ch. R. 672, a bill was filed by a creditor to set aside as fraudulent a judgment, and to discharge from it certain real and personal estate which had been sold. The complainants’ bill whs dismissed, on the ground that, at the time of the filing of the same, they had not acquired a lien at law upon, the real estate, as judgment creditors: nor had they, at the time of the entering of the decree, acquired, as. execution creditors, a legal preference to the personal property by means of an execution’duly issued and levied, or returned, nor shown that they could not obtain satisfaction of their debt by having tried in vain the ordinary process of such execution at law.

These cases, while they establish the jurisdiction of a court of equity to grant relief to a creditor who is aggrieved by the transfer by his debt- or, of his property, whether that ti-'ansfer was by grant of by means of a judgment fraudulently confessed, also indicate very clearly that creditors are left by the statute of ISth Eliz. to pursue the property fraudulently conveyed by then- debtors, in the ordinary course; under existing remedies.

In the case of Bayard v. Hoffman, 4 John. Ch. R. 451, the property in controversy between the parties was public stock of the United States. Upon the argument it was contended, that as stock was not subject to an execution at few, it is not ivithin the statute of 13th Eliz., and Roberts, page 423, was cited in support of this ground. It is there stated, “"that to'the remedy at law, under this statute (13th Eliz.) there is a natural boundary affixed, where the voluntary gift is of money, or other flux or consumeable chattel; for the creditor must wait till he has prosecuted Ms suit to execution, before he is ripe for litigation upon the statute in question.”

Chancellor Kent, however, held, that though the property could not be followed in the hands of the fraudulent grantee by execution at law, yet as a debtor might, under shelter of such a doctrine, convert all his property into stock, in defiance of his creditors, it would be productive of gfeat injustice, and refused to recognize it as sound, and decreed accordingly.

This case, then, presents an exception to the general rule, that a creditor is bound to follow the’ property of his debtor, in the' hands of his fraudulent grantee. The exception ¡noves the existence of the general rule.

The next case I refer to, is that of Wiggins and others v. Armstrong et al., 2 John. Ch. R. 144. The complainants, in their bill, alleged that two of the defendants wel-e embarrassed, and, to defraud theplaintiffs, gave judgments to a large amount: that the plaintiffs had commenced suits against the defendants, but had not obtained judgments. The plaintiffs- práyed for an injunction against proceeding on the alleged fraudulent judgments by execution. The chancellor; in delivering his opinion, uses this language: My first impression was in favor of the plaintiffs; but upon examination of the cases, I am satisfied that a creditor at large, and before judgment and execution, cannot be entitled to the interference whieh has been granted in' this case. In Angell v. Draper, 1 Ver. 390, and Shirley v. Watts, 3 Atk. 200, it was held, that the creditor must have completed his title at law by judgment and execution before he can question the disposition of the debtor’s property.” The chancellor, after citing other cases, concludes as follows: “ The

reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the debtor’s rights. Unless he has a certain claim upon the property of the debt- or, he has no concern with his frauds.”

The case of Austin v. Bell, 20 John. R. 442, illustrates and confirms the rule as laid down in the authorities already cited. Bell, as sheriff of the county of New York, levied upon certain goods to satisfy two executions issued on judgments obtained by one Lambert, against E. Secor and Co. These goods were claimed by Austin and Andrews, by virtue of an assignment executed to- them by Secor and Co., for the benefit of creditors. The levy was made before the expiration of the time limited by the assignment for the creditors to come in and execute it. Chief justice Spencer, in delivering the opinion of the court, remarked, that “ Lambert, by suing E. Secor and Co., and by issuing executions on his judgments, had definitively made'his election, and taken his stand, not to come in under the assignment, nor to- execute it; therefore, as regards him, he is in the situation of a creditor refusing to execute the assignment, and able to make the objection, as well before as after the first of November, 1819, that it is void.”

• This case affirms what I have always supposed the law to be; that assignments, though fraudulent under the 13th Eliz., were nevertheless to be considered valid until a judgment creditor appeared,, seeking in the ordinary way to enforce his legal remedy against the deed.- It is by such a proceeding that a creditor is to malee his election whether he will come in under the deed or not: if it be not pursued, his assent will be intended. The right of the defendant to a recovery was placed by his counsel (Judge Oakley) on the precise ground, that Lambert was a creditor “pursuing his legal remedies..”

To the same effect is the language of the learned judge in Anderson v. Roberts, 18 John. R. 515; when discussing one of the questions involved in that case, he says' “ The fee is not in abeyance, and the inevitable conclusion is, that the legal title has vested in the fraudulent grantee, subject to be divested, if the creditors see fit to call in question the fraudulent conveyance, and after the creditor has proceeded to sell, on execution, the lands thus fraudulently conveyed.”

Vice chancellor Me Coun, in the case of Henriquies v. Hone, 2 Edwards 120, says: “ Now, as between Moffatt, and Hall and Swan, the assignment is still good: neither of them are at liberty to invalidate it; and as respects the defendant himself, he has taken no steps to set it aside, nor is he in a position to attack the same, on account of not having obtained a judgment against his debtor. And so far from putting himself in the position of a judgment creditor, he appears-to- have been content to remain a creditor at large, and to- come in under the assignment for a dividend or dividends, tqron the terms which the debtor thought proper to prescribe. The defendant admits his never having disputed the validity of the assignment. Although the assignment may be void as to creditors generally, legal measures are still necessary on their part to avoid it; and he who does not join or concur in proceedings for the purpose, and takes no steps to place himself in a situation to receive a benefit from the debtor’s property, except such as the latter chooses voluntarily to allow, must be deemed as acquiescing.”

But it is said that, although this case was affirmed, upon appeal, by the chancellor and court of errors, still the reasoning of the vice chancellor was repudiated, for the reason that the appellant tribunals put their -decision on the ground that Hone assented to the assignment by executing the same: that he could not, therefore, complain that it was void.

I do not understand the reasoning of the vice chancellor upon that feature of the case I am now considering,, as overthrown either by the chancellor or the court of errors.

Hone having assented to the assignment, was considered by the chancellor as decisive of the case.. The same view was taken by the court of errors. “This (says the ch. justice) is the-true ground upon which the decision should rest, and upon this ground it cannot be controverted.”

Hone was a creditor of the assignor: the assignees had placed a part of the assigned property in his hands, as auctioneer, to be sold. In his answer, he states that he sold the property on the 2nd November, 1832, more than four months previous to the rendition of the judgments in favor of the creditors, who filed their bill to set aside the assignment. It was contended by Hone, that the assignment being fraudulent as against creditors, he had a prior lien upon the proceeds of the goods in his hands. In answer to this position, the chief justice remarked : “ He (Hone) insists that he acquired a lien on the 2nd Nov. 1832. As against judgment creditors, pursuing their legal remedies by creditors’ bills, he has acquired no lien whatever. It is true, as he insists, that the assignment was declared void, but it was so declared as against the creditors who had filed their bill, not as against the parties to it, or those creditors who had assented to it.”

I do not comprehend the force of language if this does not sustain the views of the vice chancellor, so far as it prescribes the remedies to be pursued by a creditor who has been delayed or hindered in the collection of his demand by a fraudulent assignment. Suppose that Hone, with a full knowledge of the existence of the assignment, had received the goods to sell as auctioneer from the assignees; and having actually sold the same, should retain the proceeds in his hands, to satisfy his claim against the assignor. Could he, as against a creditor who had obtained judgment, issued execution and filed his bill to set aside the •assignment and to obtain satisfaction of his judgment, hold the proceeds so obtained ? I think the judgment creditor would be deemed to have acquired the prior hen; and that it would be an unanswerable objection to the claim set up by Hone, that, having a full knowledge of the assignment, he had not adopted such legal measures as the law has provided for enforcing his rights. Ho would be told that, before he can complain of the fraud, his claim must be adjudicated upon and ascertained by a court of justice, which the law presumes is armed with sufficient power to enforce its judgments: that “ unless he has a certain claim upon the property of his debtor, he has no concern with his fraud.”

A reference to two or three other cases will conxplete my examination of the question under consideration.

It was held, in Murray v. Riggs, 15 John. R. 572, that “where a creditor is pursuing his debtor with a judgment and execution, or in any other manner, to enforce the payment of his demand, an assignment of the debtor’s property, containing a power of revocation, may be very well considered as made to delay, hinder or defraud creditors, according to the language of the statute of frauds. But I do not see how it could in any sense be said to delay or hinder a creditor, who was taking no measures to enforce p>ayment of his demand, as is the case now before us. For anything that ajjpears, all the creditors of Robert Murray and Co. were satisfied with the assignment, and the provision there made for the payment of their debts.”

Chief justice Thompson distinguishes this case from that of Clark v. Hyslop, 14 John. R. 465. He says: “Clark then was a judgment creditor, and had issued an execution against his debtor, which was lesded upon the property assigned to Hyslop. The levy was made at a time, too, when, by the very terms of the assignment, the property was not held under it; that is, after some of the creditors had refused to come in and accept of the terms proposed, and before any new trust was declared, pursuant to the provisions in the assignment” He considers the language of Lord Ellenborough, in Meux qui tam v. Howell 4 East. 14, as establishing the proposition that no creditor could be delayed, or hindered, within the sense and meaning of the statute of frauds, except such as were taking some measures to recover their debt.

It would be useless to multiply authorities upon a point in respect to which there seems to be an entire uniformity of opinion among judges both in England and this country. Indeed, it would appear to he one of the very few questions arising upon the construction of the 13th Eliz. in respect to which judicial opinions are entirely harmonious.

Nothing now remains but to apply the principles of these decisions to the facts before us.

The assignment to Dallee was executed on the 9th June, 1838. The complainants obtained their judgment against Clarke and McCreary on the 20th June following. No steps to enforce that judgment were ever taken by them. It might be well inferred that the prosecution of their suit (which was pending at the time of the execution of the assignment) to judgment, was an assertion on their part of dissatisfaction with the terms of the assignment, and of their purpose to avail themselves of their legal remedies as creditors, to test its validity, and obtain satisfaction out of the trust property. But obtaining judgment was but one step in the proceedings by which they could hope to achieve their object. The judgment not being, of itself, a lien upon the property, another step became necessary to render that judgment available: they were bound to take out their execution, and if no property of either Clarke .or McCreary could be found upon which to levy and satisfy the execution, then the plaintiffs were at liberty, if the assignment was fraudulent as to them, to levy upon the property embraced in the assignment, or so much of it as was necessary to satisfy theiy execution. The levy being made, it would have been competent for the plaintiffs either to sell the property, or to ask the interference of a court of equity in aid of their execution at law. If a sale is made, it would then be competent for the purchaser, who would succeed to the rights of the creditor, to bring an ejectment, and .thus test the validity of the assignment. If the other remedy be adopted, a court of equity, upon a state of facts 'warranting the conclusion that the assignment was fraudulent in respect to a creditor, who had pursued his legal remedies to every available extent, would remove the obstruction fraudulently interposed by his debtor, and decree satisfaction of the execution by a sale of the assigned property.

But the plaintiffs in the present case took no legal measures whatever to obtain satisfaction of their judgment: nor did they, or any other creditor, manifest any disposition to assail the assignment as fraudulent, until the Willis’ filed their bill in 1840. How, then, can it be said of the plaintiffs that they are hindered., delayed or defrauded in the collection of their debt, when they do not avail themselves of the means which the law has placed in their hands to enforce its collection ? The statute, 13th Eliz., declares assignments fraudulent as to those creditors, and those only, whose “ actions, suits, &c.” are “ in any wise disturbed, hindered, delayed or defrauded.”

Again.: the right of a creditor to avoid a fraudulent conveyance, grows out of the fact that he cannot otherwise be paid out of his debt- or’s estate. Suppose that his debtor has other property beside that embraced in a fraudulent conveyance, sufficient to satisfy his debt. A court of equity, if that fact should appear, would not set aside the fraudulent conveyance .until he should exhaust the property not embraced in ■such conveyance. And this, for the reason that he cannot complain that he is delayed or hindered in the collection of his debt, when property .sufficient for its satisfaction is subject to an execution at law. If he can, by pursuing his legal remedies, obtain payment of his debt, it does no.t lie in his mouth to couqfiain of the fraudulent conveyance. All that he ean -ask, that he be paid; and the law will not presume that he cannot, until, by the return of an execution, that fact is shown. In the case before us, the plaintiffs never sued out an execution: if they had, it may be that satisfaction might have been obtained out of the copartnership effects, which were primarily liable for the payment of the copartnership debts; if the joint property had been exhausted, then it would have been competent to make the judgment out of the individual property of Clarke or McCreary.

It is not enough for a creditor to say that he is defrauded, but ' he must furnish evidence of the fact. The evidence of this fact, required by statute 13th Eliz., is, first, that he .has obtained a judgment; second, that he has issued an execution upon the judgment; and, third, a return, which shows that it has been ineffectual: nothing short of this will do.

There being, then, before us, no evidence by which we can intend that the plaintiffs could not have collected their judgment either from the individual property of Olarlce or McCreary, they have -not put themselves in a situation to complain of the alleged fraudulent assignment.

The Willis’ having prosecuted their claim to judgment and execution, and having acquired title to the property through the decree of a court of competent jurisdiction, that title is to be deemed and held good as against the complainants, unless the mortgage under which -they claim is valid under the provisions of ch. 1, tit. 6, part 2, of -the Revision ojf 1838.

The first section of that chapter provides, that " every conveyance of an estate or interest in lands or the rents and profits of lands, and every charge upon lands, or upon the rents and profits thereof, made or created with the intent to defraud prior or subsequent purchasers for a valuable consideration, of the same lands, rents or profits, as against such purchasers, shall bo void.”

Section 2 provides, that “ no such conveyance or charge shall be dedeemed fraudulent in favor of any subsequent purchaser who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantee in such conveyance, or person to be benefitted by such charge, was privy to the fraud intended.”

Section 4 of chapter 3 of the same title, provides, that “ the question of fraudulent intent, in all cases arising under the provisions of this title, shall be deemed a question of fact and not of law.”

These provisions are taken in totidem verbis from the Revised Statutes of New York.

The mortgage to the complainants was given on the 20th August, 1839, to secure the payment of their judgment; and, by its terms, the conrplainants were not only empowered to foreclose the equity of redemption under the statute, but were expressly authorized to issue execution on their judgment, and levy either on the mortgaged property or any other property of which Clarke might be possessed. Assuming that mortgagees, under this state of facts are purchasers, within the meaning' of the statutes last above cited, we are now to determine-whether they are such -purchasers as are protected by those statutes^ It-has been held in England, that, under the statute 27th Eliz., a subsequent purchaser for a valuable consideration, even with notice, would hold as against a prior voluntary conveyance, or a conveyance founded on a good consideration, such as love and natural affection. Such voluntary conveyances, however, were considered as valid between the parties, and good against all but one who purchased for a consideration of value.

An examination of the English cases will show, that the earlier decisions attached to the phrases “ intent to defraud ” and “ intent to deceive,” a meaning more restricted than that given by the more modem decisions. That these words, as they are now expounded by the English courts, are made to embrace a class of cases never contemplated by the framers of the act, there can be no doubt. To sustain the doctrine that a prior voluntary conveyance, merely because it was voluntary, is void as against a subsequent purchaser for value, the ingenuity of judges was tasked to invent reasons which should sustain and justify it. Resort was had to legal artificial presumptions, false in fact, unsound in principle, and immoral in their tendencies. The word “ voluntary ” is not to be found in the statutes of 13th or 27th Eliz. It hence became-necessary, in order to sustain the doctrine which assumed every such voluntary conveyance void, to assume, also, that it was made with “ intent to defraudfor there is no necessary connection, in reason or fact, between a voluntary conveyance and a fraudulent conveyance. This was easily effected, however, by one of those legal intendments which are not unfrequently resorted to by judges, when the real fact will not answer their purpose: thus, in Colville v. Parker, Cro. Jac. 158, it is said, because it was a voluntary conveyance at first, and shall be intended fraudulent at the beginning.”

Stripped of all disguise, the English doctrine is, that a voluntary conveyance, though made under circumstances which repel the imputation of any intent to defraud,” and from motives the most pure and elevated, becomes tainted from the beginning with fraud when the grantor executes a subsequent conveyance for value, notwithstanding the second grantee has full notice of such prior conveyance. The fact of actual notice to the grantee, according to the English doctrine, is matter of no moment, for tlie Very satisfactory and logical reason that if he had notice, it was notice of a previous fraudulent conveyance. It is a little remarkable that a principle so unsound in theory, sustained by a presumption often contrary to the real fact, unwarranted by a common sense construction of the statute, and repugnant to our notions of justice and right, should have become so firmly rooted in English jurisprudence as to require the omnipotent power of parliament to eradicate it. It need not he said to the intelligent lawyer who has examined the subject, that the principle is now adhered to in England solely upon the ground of authority, and because to disturb it now would be to affect many titles built upon its rotten foundation.

In this country, judges of great ability have, on the ground solely of precedent, adopted the English rule: while others, of equal ability, have successfully resisted it as unworthy a place in American jurisprudence. In this country, the English doctrine may be considered as overthrown.

In this state, nothing is left to construction. Our legislature, in the second section of the chapter in relation to fraudulent conveyances, have declared their sense of what the law should be. No conveyance, such as is mentioned in the first section, is to he deemed fraudulent in favor of a subsequent purchaser, who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantee in such conveyance, or person to be benefitted thereby, shall be privy to the fraud intended. The distinction taken in the hooks between fraud in law and fraud in fact, is exploded. A subsequent purchaser is not protected, who has notice, actual or legal, of a prior conveyance, unless the grantee in such conveyance, or person to be benefitted by the charge, was a particeps criminis in the fraud. This view is sustained as well by tbe notes of the revisors, as by the subsequent decisions of the courts of New York.

But it is said that there is a distinction between voluntary conveyances and fraudulent conveyances: and this idea is justified by the language of both English and American judges. That there is a wide distinction in point of fact, I have endeavored to show, but that such a distinction is admissible when applied to the doctrines I have just considered, cannot be true. The whole current of decisions which declare a conveyance merely voluntary, void in respect to a subsequent grantee who has paid a valuable consideration, notwithstanding the grantee was affected with notice of the prior conveyance, was founded on the idea that such grantee was protected by the statute 27th Eliz.: and if so, it must have been because the voluntary conveyance was also fraudulent; for no conveyances, but such as are made with “ intent to defraud ” or “ intent to deceive,” are mentioned in the statute. Upon principle, then, but especially when considered with reference to t>ur statute, how can the mortgage in the present case be sustained ? Was it competent for the grantor (Clarke) to avoid his own deedto Dallee? This proposition cannot be sustained. According to Chief Justice Marshall, 1 Brock. R. 500, the grantee has title against all the world, except'against creditors. He has'a title defeasible by creditors only. It is -good against the grantor and his heirs. If creditors do not object to the provisions' of the assignment, surely he cannot: if they accept the terms which it prescribes, he cannot repudiate it. There is not the slightest evidence but what the creditors, at the time the mortgage was executed, were content to abide by the assignment, hard though it may have been in some of its provisions. In fact, no objection was made to it, and no attempt to defeat its execution, until the filing of their bill by the Willis’. If the instrument on its face was, in a legal sense, fraudulent, yet it bound Clarke: his creditors, and they alone, could impeach it: as to the rest of the world, it was good. But there is no reason for imputing a fraudulent,intent either to Clarke the grantor, Dallee the grantee, or the creditors who were to be benefited by the charge. If so, how can the complainants claim under their mortgage? They had full notice of the prior conveyance, and had no right to assume that fraud in fact existed on the part of those who were the creditors of Clarke, the persons for whose benefit the trust was created. That was a question which the complainants, as creditors, had a right to try before a tribunal competent to pass upon it: that tribunal was a jury in =a court of common law, or the chancellor in a court of equity.

The fact that the benefits designed by the assignment were coupled with conditions which creditors might deem inequitable and unjust, did not render it necessarily fraudulent in fact. Suppose, upon a trial of the question of fraud properly and legally made, it could be shown that the property assigned was sufficient to'satisfy the claim of all the creditors ; the presumption of fraud, which the law might deduce from matters apparent -on the face of the assignment, would be effectually rebutted. A jury, under proper instructions, could not say that the assignment was fraudulent in fact, as it provided ample means to satisfy all the creditors, and would thus, in effect, cure that provision which contemplates a release by tbe creditors upon - receiving a part only of their debts. Such a provision would become inoperative.

Upon the whole, I am of opinion that it was competent for the complainants, as creditors of Clarke, to impeach the assignment for matters apparent on its face: that the remedy provided by law and contemplated by the statute 13th Eliz. for the protection of creditors who are delayed or hindered in the- collection of their debts, has not been pursued by tbe complainants: and that, not having pursued the remedy which the law provides, they cannot complain that they have been defrauded. I am further of opinion, that they cannot claim as purchasers for the reason that it does not appear that the assignment was fraudulent in fact, on the part either of Clarke or Dallee, and especially can it not be alleged that the persons- to he benefited by the charge were privy to any intended fraud.

It follows that the decree of the chancellor must he reversed.

Decree reversed.


author: ing, J. -

text:
    Niles v. Ransford.
    Where mortgaged premises were advertised by the mortgagee, in pursuance of the statute, to be sold under a' power of sale in the mortgage, and the mortgagee afterwards, and before the day of sale, assigned the mortgage to a third person, who continued the advertisement in th'e mortgagee’s name, instead of advertising anew as assignee in his own name, and on the sale purchased the mortgaged premises, the sale was held irregular and void, and not to bar the mortgagor’s equity of redemption.
    A conveyance of all one’s right, title and interest in land, will pass the grantor’s interest in a mortgage on the samedand.
    A lessee of a mortgagor is not estopped, in an action of ejectment brought against him by tbe mortgagor, from showing his interest in the demised-premises as assignee of the mortgagee, to protect his possession.

      Ejectment. Case made by tbe parties, and reserved by tbe Oakland Circuit Court. The facts, so far as it is necessary to state them with reference to tbe questions decided by tbe court, were as follows: Niles, on the- 13th April, 1836, purchased tbe premises in question of George Postal, sen., and George Postal, jun., and at tbe time gave back a mortgage to Postal sen. for a part of tbe purchase money. The mortgage was not paid at maturity, and Postal sen. advertised the premises to be sold on 14th July, 1838, pursuant to the statute, under a power of sale in tbe mortgage. After-wards, and before tbe day of sale, Postal sen. assigned tbe mortgage to Postal jun., who, without advertising anew, bad tbe lands sold under tbe advertisement of Postal sen., by tbe sheriff and purchased them on tbe sale. Niles afterwards sedeemed, or attempted to redeem tbe mortgaged premises; but it is unnecessary to state this part of tbe ease, as tbe questions raised by it are not noticed in the opinion of tbe court. On 23d April, 1838, Niles leased tbe premises to tbe defendant, Ransford, for one year; and on tbe 18th August following, Postal jun. and wife conveyed them to Ransford by warranty deed.

      .Toy, for plaintiff.

      J. M. Howard and Stevens, for defendant.
   By the court,

ing, J. -

Tbe mortgage bears date the 13th April,

1836, and contains a power of sale. It was executed under tbe provisions of “An act entitled an aet concerning mortgages,” approved April 19, 1833, Laws 1833, p. 283. On sales under this act, for purchase money, no redemption is allowed. Tbe act of 1837, Bess. L. 1837, p. 315, amendatory to tbe act of 1833, authorized a redemption within one year after sale on foreclosure of mortgages given for purchase money, and this provision was by the same act made applicable as well to mortgages executed before, as those executed after tbe passage of tbe act. After the amount secured to be paid by the mortgage fell due, George Postal, sen., the mortgagee, commenced a foreclosure of the mortgage by advertisement; which bears date tbe 18th April, 1838, and appoints tbe day of sale on the 14th July. Previous to tbe day of sale, and oh the 8th June, tbe mortgagee assigned tbe mortgage to George Postal jun. In this assignment no interest is reserved to the mortgagee.

In case of the non payment of the sum of money secured, by the mortgage, authority is given in the mortgage to the mortgagee, Ms executors, administrators and assigns, to grant, bargain, sell and convey the mortgaged premises' at public auction, according to the provisions of any statute now in force or hereafter to he passed. By the 8th section of the law of 1833, it is provided that the sale shall be made hy the person appointed for the purpose in the mortgage deed, or the sheriff, under sheriff, or any deputy sheriff of the proper-cpunty.

To determine whether the lhortgagee or his assignee has complied with the power granted in the mortgage, we will first consider the nature and extent of this power. Mr. Sugden, in his Treatise on Powers, p. 223, remarks: “ We must be careful to distinguish cases where the power is originally authorized to be executed by the donee of the power and his assigns, for in those cases where the power is annexed to an interest in the donee, it will pass with it to any person who comes to the estate under him, although there are twenty mesne assignments, or whether the claimant is an assignee in fact or in law, as an heir or executor.”

This is the general doctrine. In New York they have a statute from which the act of 1833 was taken. Their courts have uniformly held that the ordinary power of sale in a mortgage is a power coupled with an interest; that it relates to tlie land, and is given to a person who derives under the instrument creating the power, a present interest in the land. Bergen v. Bennett, 1 Caines’ Ca. 1-15; Wilson v. Troup, 2 Cowen 236. In this last case, Judge Sutherland calls it “ a power appendant or annexed to the land.” There are abundance of cases in the New York reports asserting the same doctrine; and these authorities also establish the doctrine, which would seem to flow of necessity from what we have said, that by an assignment of the mortgage, the power to sell passes with it. And it follows, that after assignment, the assignee must bring the suit to foreclose, and the mortgagee can no longer .maintain a suit for that purpose, or even to recover seizin of the land, and if he attempts to bring suit, his alienation of the mortgaged premises may be plead jn bar. Gould v. Newman, 6 Mass. 241; Wallace v. Dunning, Walker’s Ch. R. 416.

In the case of Slee v. Manhattan Company, 1 Paige 78, Chancellor Walworth says, “ The authority to execute the power is vestedrin the assignee by tbe mere act of assigning tbe legal interest in the mortgage. It always passes with the legal Restate, unless there are some words of reservation.” The authority to sell is a special power, and it must be strictly pursued. 3 John. Ch. R. 344. When the owner of a mortgage forecloses under the statute and this power of sale, the m ortgagor is not made a party, as in case of foreclosure in chancery, and in this case it does not appear that he knew of the assignment before, if he did on the day of sale. The person so foreclosing must see to it that he in all material matters keeps within the powers given to him, for there are no legal presumptions or intendments raised by the. law to support his proceedings, as there might be if the sale was made pursuant to a decree and order of a court of chancery.

It is urged by defendant’s counsel, that it was competent to advertise the sale in the name of the mortgagee, though he had parted with his interest, because the power exjDressly authorizes the mortgagee, as well as his executors, administrators and assigns, to sell.

The power to sell was of necessity given to the mortgagee, but only because he had an interest; and I,. can see no better authority for his interfering, or for his name being used in this case, than there would be in an executor advertising a mortgage sale in the name of a deceased mortgagee. The notice might be seen, and the public and the mortgagor would be advised of the proceeding in the one case as well -as in the other. I' do not understand that it is a mere matter of form, as is suggested by Justice Sutherland, in the case of Wilson v. Troup. It is a question of power, and was designed to be confided and confined to the person who, at the time of foreclosure, owned the mortgage, otherwise the legal positions which we have established would have no force. (See justice Woodworth’s opinion in the same ease.) An advertisement in the name of the mortgagee in this case can have no greater force or effect than if it had been made in the name of a third person, a stranger to all the parties in interest, which would be none at all. If the advertisement may be made in the name of the mortgagee, it can only be on the gronnd of his having some power; and yet how cap the power be divided or separated from the interest in the land 1 If it can be, what is to prevent a mortgagee, after he has assigned all his interest, from selling after the mortgage is forfeited or due, without any regard to the wishes of-the assignee ? Where is the restriction ?

It is urged that the notice of sale is not required by the statute to be signed by any one, but no eoncejítion can be formed of a legal notice which does not disclose on its face that it emanates from some person or court claiming to have the power to act in the manner indicated by the notice. It is this that gives to it its force — that makes it a notice. The statute does not prescribe the form of the notice. It declares that a notice shall be given, in which certain matters shall be specified — it does not regulate its form in other respects. .

The mere act of continuing the advertisement in the name of the mortgagee, by the assignee after he acquired the whole interest in the mortgage, gave it no force — he was no party to the notice. But let us suppose that the advertisement could be made in the name of the mortgagee: how then does the case stand ? What evidence have we that the assignee, the grantor of defendant, purchased the equity of redemption at the mortgage sale ? Defendant produces in evidence affidavits of publication, and affixing notice of sale and of the circumstances of such sale, and insists that the assignee being the owner of the mortgage, no further act or deed was necessary to perfect the foreclosure and vest the equity of redemption in him. Admitting that the 19th section of the act includes assignees as well as mortgagees, does he bring himself within the provisions of the' section ? This section authorizes the mortgagee to purchase at any mortgage sale made in virtue of a power of sale contained in the mortgage,” and it declares, that “ his title shall not, on that account, be impeached or defeated at law or in equity: provided, the sale was in every other respect conducted in good faith;” and it further declares, that the affidavits of publication and affixing notice of sale and the circumstances of such sale, shall be evidence of the sale and of the foreclosure of the equity of redemption, without any conveyance or certificate from the officer, in the same manner and with like effect as if such conveyance had been made.” This section was doubtless intended to obviate the sound and established rule of equitable policy which disqualifies a trustee from becoming'” a purchaser of the trust estate without leave from chancery: and the reason of the rule is, to bar the more effectually every avenue to fraud. It was also designed to obviate the further difficulty presented by the fact that he could not deed to himself, and thus pass the title to the equity of redemption. But the owner of the mortgage did not sell. The mortgagee advertised the sale, and the sale purports to have been made on the authority of his advertisement. If the assigneee had advertised, sold and purchased, then he might, perhaps, have purchased without a deed. In this case, and upon’the assumption thayhe mortgagee might sell, a deed was necessary. None is shown, and none was ever executed.

This, then, is the position of the defendant before this court, in reference to the equity of redemption.jj^The advertisement of sale was not made pursuant to the power given, and if it was, the grantor of the defendant obtained no deed, no title, and, consequently, we must regard, the equity of redemption as being in the plaintiff.

From the case made, it appears that after the execution of the mort- ’ gage, and before the advertisement of sale, ’the defendant^ received from the plaintiff a lease of the mortgaged premises: that he entered into possession of the mortgaged premises under and by virtue of the lease, which was executed by both parties; and the plaintiff claims that the defendant is estopped from questioning his right to recover the possession of the land. The defendant bases his right to the possession of the land, first, as~we have seen, upon the foreclosure and a conveyance from the purchaser at the mortgage sale. Secondly, if his title under the foreclosure is not valid, he insists that the deed from the assignee of the mortgagee, though insufficient to convey the equity of redemption, carries the interest intEe mortgage, and he occupies the position of a mortgagee in possession before foreclosure. The case of Jackson v. Bowen, 7 Cowen 20, is an authority in point.

Postal jun., by his deed to the defendant, conveyed all his right, title and interest in and to thejmortgaged premises — he had no remaining interest — his lien on the land by virtue of the mortgage,' passed to the defendant, and he thereby acquired the'right of an assignee.. The intention was to pass a greater interest.™If that failed, it is no objection to the operation of the instrument as an assignment. Valeat quantum valere potest. The mortgagor being considered only tenant at will to the mortgagee, the latter may assign the mortgage without making an entry. 8 Mass. 559._^And when the mortgage is assigned, either by endorsement or a separate instrument, the assignee is put in the place of the mortgagee, to every purpose. The assignee might have maintained ejectment on the mortgage deed and the assignment to him, against the mortgagor or his lessee. Walker’s R. 170. The defendant might have attorned to and taken a lease from George Postal, jun. 20 John. R. 51; 17 Eng. C. L. 368; 4 Kent’s Com. 174; Powell on Mortgages 156.

But the law does not compel the tenant to resist the rights of the mortgagee — he may yield to them, and' he has the right to show that the' landlord’s title has terminated. He could not dispute the right of his landlord to make the lease to him, but he is allowed, notwithstanding, to prove the nature of such title, and to show, though originally a valid one, it expired before the commencement of the action, and that the land then belonged to another: for such a defence is not inconsistent with the terms of the original possession. Jackson v. Davis, 5 Cowen 135; Adams on Eject. 276. He does not dispute the landlord’s title — he confesses and avoids it by matter ex post facto. Hopcraft v. Keys, 9 Bing. 613; 2 Smith’s Leading Cases 509, 510. He shows, that by consent of his landlord his title has passed to another, or rather, that as an incident to tha mortgage, he, as assignee of the mortgagee, had the right to enter, and being in possession, though in the first place under a lease, he has the right to retain possession as purchaser of an interest it was competent for him to purchase, and the sale of which the landlord himself had authorized.

Certified accordingly.


author: Miles, J.

text:
    Calender v. Olcott.
    Under E. S. 1838, a deputy county clerk need not sign a writ in the name of the clerk. Where it was signed, “ W. M., deputy clerk, and in the absence of tho clerk,” hold sufficient.
    The under sheriff may act in his own name, and need not sign a return to a writ served by him in the name of the sheriff. E. S. 1838. Were it otherwise, when the writ appears from the return to have been served by a proper officer the return is amendable, and a judgment will not be reversed by reason of the defect.

      Error to CaUtoun Circuit Court.

      H. IC Clarice, for plaintiff in error.

      Pratt, for defendant in error.
   By the court,

Miles, J.

The errora assigned are,

First: That the summons by which the suit was commenced, was not signed by the cleric as required by the statute, R. S. 1838, p. 417 sec. 1; and,

Second: That the return of service upon the writ was not made by the sheriff!

The signature to the writ is in these words, “ Walter Martin, deputy cleric, and in the absence of the cleric.”

There was no appearance by the defendant in the circuit court: and it is now insisted, that the process and the return are both void, and, therefore, that that court proceeded without haring acquired jurisdiction of the defendant.

The statute in force when this writ issued, declares, that the county cleric shall apjsoint a deputy, and in the absence of the cleric from the cleric’s office, or from the court, the deputy may, in all things, and with the like effect, perform all the duties of such clerk. R. S. 1838, p. 45, sec. 39.

It is only upon the happening of a certain contingency, the absence of the clerk, that the deputy has power to act; and then,- as the principal is by such absence incapable of acting, his place is supplied by his deputy, with full power to perform all the duties of the office. He .is clerk for the time being, and his acts are not so much those of the clerk as his own acts, and hence the express provision of the statute that the clerk shall be answerable for the act of his deputy.

A distinction has been taken between doing an act by an agent and doing it by a deputy, whom the law deems such. An agent can only bind his principal when he does the act in the name of his principal; but it is said a deputy may do an act and sign his own name, and it binds his principal. The reason assigned for this distinction, is, that in law the deputy has the whole power of his principal. Story on Agency p. 176, n. 1.

This principle would seem to apply well to this case, where the whole power of the clerk is for the time being vested in the deputy. That the contingency contemplated by the statute had happened, appears from the signature to the writ.

As to the return of the writ, Simonds v. Catlin, 2 Caines’ R. 61, has been referred to by counsel for the jilaintiff in error-. In that case, the doctrine applicable to principal and agent before referred to is expressly laid down. The question there, was, whether a return made by an under sheriff in his own name, upon a writ of jfieri facias, of a sale of the premises in question by the sheriff in his life time, and who died before the return was made, was an act of the sheriff of which the court would take notice. The statute declared, that in case of the death of the sheriff of any county, the- under sheriff of the same county' shall,, in all things, execute the.office of sheriff of the same county in the name of the deceased sheriff &c. Laws of New York, edit, of 1807, vol. 1, p. 206, sec. 5. The court very properly determined, that this was not, in pursuance of the statute, a return in the name of the sheriff.

At common law, the sheriff is only recognized: his under officers-are not known as responsible to the- party whose process is placed in the-hands of the sheriff for execution.

The under sheriff must act in the name of the high sheriff, because the writs are directed to the high sheriff, and for this paricular reason. Parker v. Kett, 1 Salk. 96.

I fully recognize the objection made by the counsel for the plaintiff» that it is by means of the service and return of this writ, that the circuit court is to acquire jurisdiction of the defendant’s person; hut this is not like the case of the deputy clerk, who is only authorized to act in a certain particular instance, to wit, in the absence of the clerk — the under sheriff is expressly authorized by statute to execute all writs issued by lawful authority.

The language of the statute is, that the sheriff' and each of his deputies shall serve or execute, according to law, all writs, precepts and orders issued or made by lawful authority, and to him or them-, directed.” R. S. 1838, p. 46, sec. 47.

This would seem to recognize the right of' the under sheriff, who is by law made a general deputy, to act in his own name. But if his act is the act of the sheriff, and should so appear in his return, the power to perform the service being conceded, the only question is as to the form of the return.

If we are correct in this view, therefore, and if the return is defective for the reason stated, then the only remaining inquiry is, whether this defect renders the proceeding void, or whether it is amendable; the statute having declared, “ that no judgment shall be reversed for any defect or imperfection in matter of form, which might by law have been amended. R. S. 1888, p. 462, sec. 22.

As a general rule, in all cases where the defect or mistake is owing to the default of any clerk or officer of the court, an amendment will be allowed. Gr. Pr. 064; 1 Petered. Ab. 571, 572.

The summons was served by the proper officer: this appears from the return; and the omission is, to add the name of the sheriff in the signature to the return. This would have been permitted on motion in the court below. It is a mere formality, which can be supplied at any time. The substantial thing to confer, jurisdiction upon the court over the person of the defendant, to wit, the service of the summons, in the manner indicated in the statute, has been done.

There appearing, then, to be no error, the judgment must be affirmed.

Judgment affirmed.


author: Wing, J.

text:
    Brigham et al. v. Gurney.
    Where the charge of the court to' the jury, whether right or wrong, is in favor of the party excepting, it will not be reviewed, on error.
    A promissory note payable to bearer, or endorsed in blank, maybe sued in the name of an agent who holds it for collection.
    Error to Oakland Circuit Court.

      T. J. J) rake, for plaintiff, in error.
    Wisner, for defendant, in error:
   By the court,

Wing, J.

This is an action of assumpsit, brought by Gurney, before a justice of the peace, upon a promissory note, bearing date Feb. ll, 1844, made payable to William C. Brownell or bearer, for $65, with use, for value received, on or before the first day of.January next. The suit was commenced on the 30th June, 1846. The declaration was in the common form, in which the plaintiff as bearer of the note alleges the note wras transferred to him.

The defendants plead the general issue, and gave notice that the note was obtained by fraud and deception, and further, that the note is not the property of the plaintiff, and was never transferred or assigned to plaintiff. The justice rendered judgment for the defendants. From this judgment plaintiff apjaealed to the circuit’court of Oakland county* In the circuit court the plaintiff recovered judgment. On the trial, exceptions were taken to the ruling of the court in admitting and rejecting evidence, and also to the charge of the court; and the cause comes before this court on writ of error and bill of exceptions.

At the trial, defendants offered evidence tending to prove that before the plaintiff beeame the owner of the note upon which the action is founded, he was fully informed of the facts and circumstances which constitute the defence, and of the fraud and misrepresentations of the person to whom the note was given. The defendants also proved that, at the time the note became due, it belonged to the plaintiff’s brother in New York, by the admission of the plaintiff. The defendants also proved that the note was obtained under an express warranty of the soundness of a horse for which it was given.

The court charged the jury that, “ if the plaintiff was a mere nominal owner, and that at the time the note hecame-due it belonged to his brother, and his brother had notice of the defence, the defendants could avail themselves of it, and there being no proof that the brother of the plaintiff had sold the note, the jury might infer that he still owned it.” To this charge the defendants excepted.

We do not see any necessity for reviewing this portion of the charge, since, whether right or wrong, it supported the ground taken by defendants.

The defendants then desired the court to charge the jury, that if the plaintiff was not the owner of the note at the time of bringing the action, then the plaintiff could not recover; and the court refused so to charge, but did charge, that although the plaintiff’s brother might own the note, get if it was sent to the j>laintiff for collection, he might bring a suit in his own name; in such case, however, the same defence might he made as if the real owner had brought suit in his own nameto which charge defendants excepted.

It is true, as a general proposition, that the bearer of a note payable to A. B., or bearer, may bring suit upon it, and the law presumes him to he the owner of the note, without further proof of ownership. But if it is clearly proved that plaintiff does not own the note, or if it ia proved he found it or stole it, he cannot recover.

In this case, the charge sought from the judge was not applicable to the case before the jury; the proof was, that plaintiff’s brother owned the note at the time it fell due, which was eighteen months previous to the commencement of the suit. This could scarcely tend to prove that plaintiff did not own the note at the time suit was commenced, for he might have purchased it afterwards. Indeed, we think the legal presumption was, that he had purchased it The proof that plaintiff’s brother owned it when it fell due, would be hut little more than to prove he owned it at the time it was made. If, in behalf of a bearer, the law will presume his ownership of a note in his possession, this presumption will arise as well and as strongly in reference to a note, with the possession of which the payee has parted after it is due, as after it is made; and, unless it he shown that plaintiff did not own it, and had no legal right to control it, to receive payment when suit was brought, the law will presume him (being the-bearer) to he the owner. In this case, then, the proof did not present a case for the application of the doctrine which the defendants desired to have applied to it. In behalf of a bearer of a note payable to bearer, and in the case of a blank endorsement, suits have been sustained in the name of the bearer, though it was proven that ho only held it for the purpose of collection, without any actual interest in it. 15 Wendell 640; 7 Cowen 174. As the case is presented', the plaintiff may be presumed to be either owner or agent to collect; and in either case the charge would not apply. It does not exclude the idea that plaintiff would fail if he was wrongfully in possession of the n<5te.

The substantial rights of' the defendants were in no wise prejudiced by the ruling of the court in this case, and they were permitted to make all kinds of defence without objection, precisely as if suit had been brought in the name- of the payee of the note.

We think there was no error.

Judgment affirmed.