author: Hinman, J.

text:
    Jarvis and others vs. Woodruff and others.
    The husband and wife, being seised in fee of certain real estate, executed a release deed thereof; to which the following condition was annexed: “ But, on condition that, whereas the said grantees have lent us one thousand dollars, to be paid three years from this date, without interest, they taking in lieu thereof the rents and profits of said land,—if we shall pay said money, this deed shall be void,—else valid. If not paid, and a forfeiture occurs, the land shall be taken in full payment of debt and interest, without further'claim upon us, or either of us.” Upon the execution of said deed, the releasees immediately took possession of the land therein ' conveyed. After they had continued in the uninterrupted occupancy of the same, for more than fifteen years after the expiration of the three years mentioned in said condition, taking the entire rents and profits as owners thereof, the releasers tendered to them said sum of $1,000, for the redemption of the premises,—which sum the releasees refused to receive. On a bill in equity, brought by such husband and wife, to redeem said premises, it was held, 1. That the original transaction between the parties was a loan of money, and a mortgage to secure the same. 2. That the wife’s right of entry into said premises, was barred by the statute of limitations, and, therefore, the right to redeem the same, precluded, by the adverse possession of the mortgagees.
    This was a bill in chancery, to which was filed an answer and cross-bill.
    The plaintiffs, in the original bill, prayed the court to set aside and correct a partition of certain real estate, situated in the town of Portland, alleging, among other matters, that a part of said premises were originally owned by Maria A. Woodruff, the wife of Philo D. Woodruff, and in which said Maria A. and her husband, claimed an equity of redemption. Said Maria A. and Philo D., who were made parties to said bill, alone appeared, and filed their answer, and also a cross-bill to redeem the premises so owned by said Maria.
    On the hearing of the cause, before the superior court for the county of Middlesex, at the February term, 1853, the following facts were found, which are all that are material, relating to the questions made by the parties.
    Said Maria A., before, and at the time of, her marriage, was seised and possessed, in her own right, in fee simple, of ten acres of land, being the premises described in said cross-bill. On the 20th day of January, 1831, by quitclaim deed, under which the original plaintiffs claimed title to said premises, and which was acknowledged and delivered at the date thereof, said Philo D. and Maria A. conveyed all their right, title and interest in and to said premises, to the releasees, therein named, to which deed, the following condition was annexed, to wit:

      “ But, on condition that, whereas the said grantees have lent us one thousand dollars, to be paid three years from this date, without interest, they taking, in lieu thereof, the rents and profits of said land. If we shall pay said money, this deed shall be void,—else valid. If not paid, and a forfeiture occurs, the land shall be taken in full payment of debt and interest, without further claim upon us, or either of us.” The premises were then of no greater value than the sum of one thousand dollars, specified in the condition of said deed, as the sum loaned by the releasees to the releasers, in manner and form as is therein stated ; but the premises are now of much greater value. The releasees, immediately after the execution and delivery of said deed, entered into possession of the premises, and either they or their assigns have, ever since, continued to occupy the same, taking the entire rents and profits of the same, as owners thereof, without any interference or claim on the part of the said Philo D. or the said Maria, his wife, until the 25th day of August, 1852, when they caused to be tendered, in the right and behalf of said Maria, to the plaintiffs and to their attorney, in their behalf, the said sum of one thousand dollars, for the redemption of the premises, which was refused by the plaintiffs. At the time of the execution of said deed, and ever since, the said Philo D. and Maria, were and have been residents of the state of Georgia, or South Carolina. Said sum of one thousand dollars, was never paid to the releasees, named in said deed, nor any part thereof, either principal or interest. ' The rents and profits received by the releasees and their assigns, have not exceeded the interest on said sum. It was not found that any other contract was made, in relation to the premises, by the said Philo D. and Maria A., with the releasees in said deed, than that which is stated and contained in the deed executed by them as aforesaid.
    Upon these facts, the question, whether the said Philo D. and Maria, in right of said Maria, had a right to redeem the premises, was reserved for the advice of this court.

      Dutton, Bulkeley and Tyler, for the plaintiffs.

      Baldwin and Whittlesey, for- the defendants.
   Hinman, J.

The first point involved in the question re-, served for the advice of this court, is, whether the transaction, evidenced by the deed of Maria A. Woodruff and-her husband, of the 17th of January, 1831, was a loan of money to the husband, and a mortgage, by them, of the-wife’s land, to secure it ? The point depends upon what appears, upon the face of the deed itself. The court does not find, that any other contract, than such as is shown by that instrument, was made at the time ; and although the circumstance, that the land, at that time, was of no greater value than the sum mentioned in the condition, as lent to these leasors, would be evidence, to rebut a presumption, that the deed was intended as a mortgage, in a doubtful case, yet, of itself, it is not sufficient to control the clear and unequivocal language of this instrument. The condition recites, that the parties, to whom the deed was given, had lent to the releasers the sum of one thousand dollars, to be paid in three years after the date of the deed, and then, after providing how the interest shall be paid on this sum, it goes on, in the usual form of the ordinary condition to a mortgage deed, to say, “ If we shall pay said money, this deed shall be void,—else valid.” • Here is every element that enters into the ordinary definition of a mortgage,—a conveyance of lands by a debtor to a creditor, as a security for the payment of the debt; or,-as it is very briefly expressed, by.'Judge Swift: “ It is a contract of sale, executed,- with a power to redeem.” It is true, that no note, or other written security, except the mortgage deed, was taken for the money; and, in this respect alone, it is distinguishable from an ordinary loan and mortgage.- But,-it is.well settled, that no other security was necessary, to constitute, the; transaction a loan and mortgage. If the conveyance was intended as a security for the money, that is enough ; and the. condition here expressly recites, that there was a loan, and that it was to be paid at a time fixed. On this point, the case can-not be distinguished from the late case of Bacon v. Brown, 19 Conn. R., 29,—the principle of which is fully sustained, by theauthorities there cited.- See also Russell v. Southard, 12 How., 139, where this subject is fully considered. But, although we consider the transaction to have been a loan-of money, and mortgage to secure it,—we still think, that neither Woodruff, nor his wife, have any remaining, right to redeem. The mortgagees went immediately into the possession of the land, and have ever since used and occupied it, as the absolute owners ;. and, whether we consider their adverse occupancy to have commenced immediately, or at the expiration of the law day, more than fifteen years has expired. It is clear, therefore, that, had neither of the parties been,under any disability, their right of redemption would be lost.by the lapse of time. Skinner v. Smith, 1 Day, 124. But it is said, that Mrs. Woodruff’s right is saved, by the proviso in the statute, in regard to the time within which entry must be. made into lands, in the adverse possession of another; and, had the equity of redemption been cast upon her, without any act of her own, this would be.so. It would.be so however, only by an equitable application of the statute in her favor. Strictly speaking, she had no right of entry, to be saved, after the law day'had expired. She hadan equity of redemption ; but after the law day, to make -it available, she must come into a court of equity, and ask, rather as a favor, than as matter of strict legal right, to be permitted to redeem. Now, we think the saving in the statute ought not, by construction, to be extended to the case of a married woman, who has, by her own deed, raised am equity of redemption in her favor. In this state, she has the same power to convey her land, as if she were a feme sole. The statute having given her the power of a feme sole, to convey her lands, we think her equity of redemption, which she has by deed reserved, should be subject to the same incidents, as if she were sole. In the absence of any authority to the con» trary, it seems to us, that, in this respect, it is more equitable, that she should be bound by her deed, as if she were sole, than that, as matter of favor, she should have extended to her a power to lie by, as long as she remains a married woman, and speculate upon the prospective value of her equity of redemption. We therefore, advise the superior court, that neither the said Maria, nor her husband, have, at this time, any right to redeem said mortgaged premises.

In this opinion, the other judges concurred.

Decree for plaintiffs.


source: Caselaw Access Project

author: Stores, J.

license: Public Domain

text:
    The City of New London vs. Brainard and others.
    Corporations have only such rights and powers as are expressly granted to them, or as are necessary, to carry into effect the rights and powers so granted.
    The city of New London has no authority, in its corporate capacity, to appropriate money for the celebration of independence day.
    Therefore, when said city voted an appropriation of $1,500, from the city treasury, to be expended in the celebration of said day, on a bill in equity, brought by certain inhabitants, tax payers of said city, praying for an injunction, to restrain the payment of said sum, it was held, 1. That such vote was unauthorized, and not binding upon the plaintiffs. 2. That an injunction was the appropriate remedy for the injury complained of, and that such injunction was properly granted, against both the city itself and its treasurer.
    This was a bill in equity, brought too the superior court for New London county, by Dyer T. Brainard and others, inhabitants of the city of New London, against said city and Robert Coit, their treasurer.
    The plaintiffs alleged, substantially, that they were in habitants of said city, and entitled to vote in the legal meetings of the same ; that they had been for many years the owners of real estate, situate within the limits of said city, liable to such taxes as may be legally imposed by said city, and that they had heretofore been assessed and taxed for such property; that, at a city meeting, warned for that purpose, and held on the 19th day of June, 1852, the following vote was adopted by a major vote, viz.:

      “ Voted, That the sum of fifteen hundred dollars be appropriated, out of the city treasury, for the purpose of celebrating the next anniversary of our .national independence; and the city treasurer be instructed to pay over that sum to Maro M. Comstock, of New London, treasurer of the committee of arrangements, appointed by a meeting of the citizens, at Dart’s Hall, for that purpose ;” that the plaintiffs and many others present at said meeting, opposed said vote, and that the same was illegal, and said city, by their charter, had no right to appropriate and direct to be paid, moneys from the city treasury, for the purposes, and in the manner, specified in said vote; that there was then money belonging to said city, in the haiids of Robert Coit, the treasurer of said city, raised by taxation, of which the plaintiff's had paid a part, or upon the credit of said city, for which the plaintiffs were liable to be taxed, in which they were interested, as inhabitants and tax payers, and that, if the money appropriated by such vote is paid out, as therein directed, they would be wrongfully affected' and injured thereby; that they were apprehensive said money would be paid, as directed by said vote, to their own great injury and to that of other inhabitants and tax payers in said city; and that they had no adequate remedy at law.
    The bill prayed for an injunction, to restrain and enjoin said city treasurer and his successors in office, against complying with said vote, and paying over said sum of fifteen hundred dollars, or any part thereof, as therein directed, and also prayed for general relief.
    At the term of said superior court, holden in September, 1852, said city treasurer made default of appearance; the city demurred generally to the sufficiency of the plaintiffs’ bill. The court found the bill sufficient, and granted the injunction prayed for, against both the city and its treasurer.
    Said city, by motion in error, thereupon brought the record before this court, for revision.

      Foster and Willey, in support of the motion,
    claimed, ]. That the city have power to make the appropriation in question; but if they have not, an injunction will not be sustained or granted upon the application of individuals, unless they sustain an injury distinct from that which they suffer in common with the rest of the public. Bigelow v. Hartford Bridge Co., 12 Conn. R., 568. O'Brien v. N. & W. R. R., 17 Conn. R., 372.
    2. That the equity jurisdiction of the court does not extend to the enforcing or regulating official duties. Stillman v. Isham, 11 Conn. R., 124. 2 U. S. Equity Digest, 69, sec. 107. Hall v. Cushman, 6 Metcalf, 425. 2 Kent Com., 304. Stat. 1849, p. 131.
    3. That the' extraordinary remedy by itijunction is not to he - exercised, except in cases of necessity, and then, with great discretion. 14 Conn. R., 580. And the court, in the exercise of a careful discretion, will not grant an injunction in this case.

      Crump, contra,
    contended, 1. That the city vote in question was illegal; because, the city is a corporation, “ possessing only those properties” (powers) “ which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.” And neither expressly nor by implication, does the charter authorize an appropriation to celebrate the 4th of July. Hodge v. City of Buffalo, 2 Denio, 110.
    2. An injunction is the only adequate remedy. It is said, “ each tax payer aggrieved by this vote may resist the levy of a tax, to pay the appropriation, if the latter is illegal but there was money in the city treasury, raised for other purposes, which would have paid this appropriation, thereby making necessary a tax to pay other and legal liabilities of the city, which a tax payer could not resist. The multiplicity of suits, which the remedy proposed by the city requires, is one of the mischiefs specifically mentioned as warranting the interference of a court of chancery, by injunction. Mayor of York v. Pilkington, &c., 1 Atkyns R., 282. 2 Sw. Dig., 156. The Mohawk R. R. Co. v. Artcher, 6 Paige, 88.
   Stores, J.

1. It is well established, that corporations have only such rights and powers as are expressly granted to them, or as are necessary to carry into effect the rights and powers so granted.

It was accordingly held, in Stetson v. Kempton, 13 Mass. R., 272, where this principle is very fully vindicated and explained, that towns have no authority, in their corporate capacity, in time of war, or danger of hostile invasion, to vote money, and cause it to be assessed upon the inhabitants, for the purpose of raising money to give additional wages to the militia, or for the purposes of defence, in cases of invasion: and in Hodge v. The City of Buffalo, 2 Denio, 110, that the defendants had no power to contract a debt, for the purpose of defraying the expense of celebrating the anniversary of our national independence. In the former of these cases, the action was against the assessors of the town, who assessed a tax, which was collected, in part, of the plaintiff, in pursuance of a vote of the town, to raise a certain sum of money, for the payment of additional wages to the militia, and other expenditures of defence; and the court refrained from expressing an opinion, on the question, whether any money actually in the treasury of the town, beyond what is needed for its ordinary expenses, and which is unappropriated, may be disposed of, in pursuance of a vote of the inhabitants, for the common defence. ' In the latter case, the action was brought against the city of Buffalo, to recover the amount of the expenses which it had, by a vote, authorized a committee to incur, on its behalf. We are unable to perceive any just ground of discrimination, between a disposition of moneys already in the treasury of the corporation, and a vote to raise money by a tax, or a contract to pay money, for such unauthorized purpose.

We do not find, nor have we been referred to, any express power in the charter of the city of New London, nor is there any general law, authorizing an expenditure of money, for the purpose for which the vote in question was passed ; nor is any power conferred on that city, for the exercise of which such an expenditure is necessary. We think, therefore, that that vote is not binding on the plaintiffs.

2. An injunction in this case, was the appropriate remedy; because, first, the city corporation was in the nature of a trustee of the moneys in its treasury, for the corporators, the inhabitants of the city, for the purposes for which they were incorporated, and here was a meditated misappropriation of the trust fund ; and, secondly, it is extremely doubtful, whether the plaintiffs could have any other remedy. The amount appropriated by this - vote, was in the city treasury, and, if abstracted, must, when wanted for other and legitimate purposes, be supplied, by a tax on the inhabitants. It is suggested, that the plaintiffs should bring an action against the city, for a misappropriation of its funds, or that, when such a tax is laid, they should, by a proper action, resist its collection. We are by no means prepared to say, that an action could be maintained, on either of these grounds, and are strongly inclined to think it could not. But, however this may be, we are clearly of opinion, that the plaintiffs are not bound to wait until the money is misspent, nor until such tax shall be levied, and attempted to be collected, but that they may call on a court of equity to interpose, by way of preventing the injury. On these grounds, the case comes within the ordinary jurisdiction of equity, in regard to injunctions.

This bill was brought both against the city and its treasurer. The former only, appeared to defend, and alone files this motion in error. ' It is questionable, whether it is competent for the city to object, that both should not have been joined ; but we think that the injunction was properly granted against the treasurer, as well as the city.

The judgment of the superior court is therefore affirmed.

In this opinion the other judges concurred, except Waite, J., who heard the cause in the court below, and was disqualified.

Judgment .affirmed.


author: Ellsworth, J.

text:
    Hewitt vs. Wheeler and another.
    A, B and C, having been constituted the agents of an ecclesiastical society, to make a contract for building a church, for such society, A and B signed, as “ building committee,” a written contract, commencing as follows : “This contract by and between K, on the first part, and A, B and C, a committee for building a Congregational church in T, on the second part, witnesseth.”

      In a scire-faeias, in a process of foreign attachment against A and B, as the supposed trustees of K, it was held, that the defendants were not personally liable upon such contract, and that any indebtedness thereon, due to K, could not be attached, as a debt due from them to him.
    This was a scire-facias, in a process of foreign attachment, demanding of Russell Wheeler and Dudley R. Wheeler, the amount of a judgment obtained by the plaintiff, against Joseph Kinney, before the county court for New London county, on the second Tuesday of November, 1848.
    The cause came, by appeal, to the superior court, for New London county, and was tried, on the general issue, at the term of said court, holden in September, 1852.
    The indebtedness which the plaintiff claimed, as due from the defendants, was upon a certain contract for building a Congregational church, in North Stonington, which, on the trial, the plaintiff introduced and read, in evidence; commencing as follows:
    “ This contract of two parts, made and entered into, by and between Joseph Kinney, on the first part, and Russell Wheeler, Oliver Hewitt and Dudley R. Wheeler, a committee for building a Congregational church, in the village of Milltown, in North Stonington, on the second part,—all of said North Stonington, Conn.—witnesseth,—that the said Kinney agrees to build a church or meeting-house, in said village of Milltown, to be located on land belonging to the Congregational society, in said village, near the spot where the present old house now stands.” Said contract was signed by said Russell and Dudley R., as “ building committee.”
    The plaintiff also introduced the following votes, passed at certain legal meetings of said society, viz. :

    A vote, passed June 15th, 1846, unanimously appointing Russell Wheeler, Oliver Hewitt, and Dudley R. Wheeler, a committee, “ to contract with some suitable person, or persons, to build a new house of worship, for said society, on some modern approved plan, and that they superintend the same, agreeable to the terms of the subscription for said object.” Also a vote, passed on the 25th day of January, 1848, as follows:

      “ That the building committee be authorized and empowered to proceed, and finish the new meeting-house,'complete with stone steps, &c., agreeable to their contract with Joseph Kinney, and whatever amount may be wanting, or due to said Kinney, (after deducting the subscriptions, avails of old house, &c.,) which is supposed will not exceed three hundred and fifty dollars, shall be paid by this society, and they hereby pledge themselves for the same.”
    The plaintiff also introduced in evidence, three subscription papers, to the first of which said Kinney subscribed the sum of twenty-five dollars; and the subscribers to which agreed “ to pay, in two equal payments, within one year from the date, to the building committee that shall be appointed by the Congregational society of North Stonington, the sum affixed to our individual names, for the purpose of building a meeting-house, at the village of Milltown, on ground belonging to said society, or on any other place which said society may designate, on condition that the sum of three thousand dollars shall be here subscribed, (including the subscription of General Williams, and others, for the same object.)”
    The defendants claimed, that said documents showed, that the defendants, in entering into said contract with said Kinney, acted only as the committee and agents of said society, and did not bind themselves personally, nor render themselves liable to the said Kinney, or the plaintiff, as the debtors of said Kinney, and prayed the court so to instruct the jury-
    But the court did not so instruct them, but informed them, that' the defendants, by said contract, had rendered themselves personally liable upon the’ same, to the said Kinney, and that any debt due thereon to him might be attached, as the debt of the defendants.

      The jury having returned a verdict in favor of the plaintiff, the defendants moved for a new trial.

      Pomroy and McCurdy, for the motion,
    after remarking that the question is wholly one relating to ^he construction of the language of the contract and of the intention of the parties, contended, 1. That there is no language in the contract, substituting the responsibility of the defendants, for that of the society, or expressive of such intent.
    The defendants commence, by styling themselves “ A committee for building a Congregational church,” &,c., and continue to designate themselves as such committee, and add to their signatures, “ building committee are never named or alluded to, in the contract, but as building committee.

      2. That the rule of law, that an agent binds himself, and not bis principal, unless he use the name of the principal, applies only to sealed instruments. In contracts not under seal, if the agent intend to bind his principal, and not himself, it will be sufficient, if it appear in such contract, that he acts as agent; and a ratification of an act done by one assuming to be agent, relates back, and is eqSivalent to a prior authority. Despatch Line of Packets v. Bellamy Manf. Co., 12 N. H. R., 205. Andrews et al. v. Estes et al. 2 Fair. R,, 267. Emerson v. Coggswell, 4 Shep. R., 77. An agent, who makes a promise, and does not conceal his agency, nor exceed his authority, is not liable, in an action upon such promise. 17 Ver. R., 244. Hall v. Huntoon. Abbot v. Cobb, 17 id. R., 593. If a contract be not under-seal, the authority of one person to contract for another, may be proved, by their subsequent acts. Emerson v. Coggswell, 4 Shep. R., 77.

      Foster and Wait, contra,
    1. That no person, in making a contract, is considered to be the agent for another, unless he stipulates for his principal, by name, staling his agency, in the instrument which he signs. 1 Sw. Dig., 327. Story on Agency, pp. 266, 267. Magill v. Hinsdale, 6 Conn. R., 464. Tippetts v. Walker et al., 4 Mass. R., 595. Stackpole v. Arnold, 11 Mass. R., 26. Alfridson v. Ladd, 12 Mass. R., 177. Hastings v. Lovering, 2 Pick., 214. Simonds v. Heard, 23 Pick., 120. White v. Cuyler, 6 T. R., 176. Johnson v. Smith et al., 21 Conn. R., 627. Kent’s Com., vol. 2, pp. 630, 631. Therefore, the defendants not showing, in the contract itself, that they contracted with Kinney, as the agent of a society, nor disclosing the names of any principal, bound themselves personally, and rendered themselves liable to him, and to said plaintiff, as the creditor of Kinney. The addition, “ committee,” &c., to their signatures, is merely descriptio personarum. The personal liability of the defendants does not depend upon the question, whether they were in fact agents, nor whether that fact was known to the party with whom the contract was made, but upon the terms of the written instrument. Simonds v. Heard, 23 Pick., 125. Windsor et al. v. Griggs, 5 Cush. R., 210.
    2. That the votes of the society show clearly, that it is the individual contract of the Wheelers, and that they are personally liable thereon. If the defendants were the agents of the society originally,—yet, as their powers were limited, and they, in making this contract, exceeded that limit, they rendered themselves personally liable. 1 Sw. Dig., 327. Thompson v. Stewart, 3 Conn. R., 171. Feeder v. Heath, 11 Wendell, 477. Bank of Hamburg v. Wray, 4 Strobh., 87. U. S. Annual Digest, 1851, p. 380, sec. 26. Although a subsequent ratification might be binding on the society, yet Kinney has still a right to look to the defendants, and his creditors occupy the same ground.
   Ellsworth, J.

The main question in this case is, whether the defendants were debtors of Joseph Kinney, by virtue of the contract, entered into for the building of a Congregational church, in the village of Milltown, in North Stonington.”

It is not necessary, in deciding this case, to go through the numerous cases which have been cited at the bar, to show, where agents really or professedly contracting in behalf of others, do not bind their principals, but themselves ; or what should be the form of the agent’s signature, to save himself from responsibility. The books are full of cases upon this refined subject, and are burdened, and overburdened, with elaborate learning, not unfrequently more nice than wise. They show such embarrassing conflict of judicial opinion, that one, in search of- the law, is well nigh tempted to discard the whole that is written, and follow the dictates of his own understanding. The notions too, which prevail in one state or country, and in some cases, in courts of the same country, seem not to be consistent or uniform with themselves. We find one rule applied, in cases of deeds, and another in cases of simple contracts ; one in case of public, another in case of private agents ; and yet they all profess to take the intention of the parties, as the only proper and just rule of construction. Beginning with the case-of Hodgson v. Dexter, 1 Cranch, 345, and following along, through all the cases in the states, down to the present time, we can not fail to be struck with their great want of perspicuity and uniformity. And we have sometimes thought, that men of ordinary observation, would not have hesitated, a moment, in discovering the meaning of the parties, where courts, by reason of certain technical rules, have been perplexed and embarrassed beyond measure. We believe, that our own courts are, to a great extent, disentangled from this confusion and contradiction ; and that here, judges are allowed to see and to think as other men see and think.

It ought always to be a rule of construction, that, whether an agent contracts under seal or without one; by writing or by parol; and whether his principal is the state, or other corporation, or an individual; that the intention of the parties, gathered from all the legitimate evidence which belongs to the case, shall be held to be the sure and only criterion of the character and effect of the agent’s act. This is the rule, if I mistake not, of the courts of Connecticut, in those cases where the agent is really clothed with power to act. Undoubtedly, more latitude may be allowed, in cases of parol testimony, than in cases of written instruments, or instruments under seal; and so an act properly done by a public officer, may furnish higher presumptive evidence that he acted in a public capacity; but the intention, when ascertained, is the true and only rule in these, as in other contracts, written or unwritten. We want only to know what the parties, by the language used, intended to declare. The rule of our courts is to be inferred from McGill v. Hinsdale, 6 Conn. R., 464; Stamford Bank v. Ferris, 17 Conn. R., 270; Perry v. Hide, 10 Conn. R., 330; Johnson v. Smith, 21 Conn. R., 633; Shelton v. Darling, 2 Conn. R., 435, and Hovey v. Magill, 680.

Now, taking the intention of the parties, as our guide, we are fully satisfied that Mr. Kinney was not building this meeting-house, for the defendants, or on their credit, and we feel confident,- that, had it so happened, in the course of events, that the defendants had failed, leaving this debt unpaid, or that no creditor of Mr. Kinney had laid his attachment on this debt, we should not have heard of any such claim as is now made by the plaintiff.

The contract begins, “ This contract,” &c., “ by and between Joseph Kinney, on the first part, and Russell Wheeler and Dudley R. Wheeler, a committee for building,” &c. What means this expression, “ committee,” but to show the character in which the defendants were going on to contract ? So, for “ building a Congregational church in the village of Milltown, in North Stonington.” Was it for the defendants ? No,for the Congregational society. So, again, it is to be built “near the spot where the present house now stands.” Then to conclude, the contract is signed by the defendants, as building committee. Now, can anything be more expressive and satisfactory than this, as to the character in which these defendants were acting ?

One of the plaintiff’s counsel, in the argument, admitted, that, if the Congregational society had been named in the writing, the defendants would not be held liable as principals. We think they are, or what is equivalent, by the language just quoted. Mr. Kinney very well knew, that this Congregational society were the principals, who entered into this contract, by their committee, formally appointed. Again, this society passed numerous votes and resolutions, on the subject of a contract, and they appointed these defendants, their agents, to make a contract for building this house, and have, in repeated instances, directly and indirectly, ratified the contract itself. Now, from first to last, the agency of the defendants has been known and recognized, by all com cerned in the business, and we are convinced the defendants could not have had the least idea of being personally responsible for this house of public worship. The nature of the case, too, shows how this was understood. Mr. Kinney was one of the signers to the subscription paper, and, from that circumstance, well knew he contracted with the defendants, as a committee of the society.

Since, then, we are satisfied, the parties intended and supposed the contract was made with the society only, and the committee were in fact duly authorized to contract, we are constrained to hold, the defendants must be treated as agents only. '

There is no force in the objection, that only two of three of the committee signed the contract. We are not certain but the power is of such a public nature, that a majority only can bind the society. We think the court so held, in the case of Johnson v. Smith, already referred to ; but, at all events, if there is a difficulty here, the two who acted professed to act, as the committee, and the society have again and again, ratified and confirmed the particular contract; so that Mr. Kinney obtained all the security he originally expected; and, if the society do not complain, he certainly can not. The same may be said, as to the security which the committee were'to exact from the builder. The difficulty, if it ever had any force, which we do not admit, has been waived, by those who alone had any interest to urge it.

We therefore advise a new trial.

In this opinion, the other judges concurred, except Waite, J., who tried the cause in the court below, and was disqualified.

New trial to be granted.


text:
    Brown and others vs. Payne.
    The statute of 1852, entitled “ an act in alteration of an act regulating civil actions,” was not merely a modification, but a repeal of all former acts relating to the appellate jurisdiction of the superior court.
    The only object of the first section of said act, was to extend the exclusive original jurisdiction of the county court to all actions, wherein the matter in demand should not exceed two hundred dollars.
    Therefore, where an action on the case demanding one thousand dollars damages, was brought to the county court, and, judgment having been rendered therein in favor of the plaintiff, the defendants moved for an appeal to the superior court while said act was in force, it was held, that such action was not appealable.
    This was an action on the case, brought against the defendants, as common carriers, and demanding one thousand dollars damages.
    The cause was tried before the jury, at the November term of the county court for New London county, when the plaintiff obtained a verdict, and judgment was thereupon rendered in his favor for $584.59. The sum claimed by the plaintiff in damages, being greater than $200, the defendants thereupon moved for an appeal to the next term of the superior court for said county, and offered sufficient bond with surety, to prosecute said appeal to effect. But the court overruled said motion and denied the right of such appeal, and the defendants, by motion in error, brought the cause before the superior court, and the questions thereon arising were reserved for the advice of this court.

      McCurdy, Lippett and Willey, for the plaintiffs in error.

      Foster, contra.
   Stores, J.

The question in this case is, whether the action, from the judgment on which this writ of error is brought, was appealable from the county court; and that depends on the true construction of the act, passed in 1852, entitled, “ an act in alteration of an act for the regulation of civil actions.” (Acts of 1852, ch. 1.) , The first section of that act prescribes the exclusive original jurisdiction of the county court; the second, the appellate jurisdiction of the superior court; and the sixth, the concurrent original jurisdiction of those courts. The original action in this case, in which an appeal was claimed from the county court, was confessedly one which was not specified in the second section of that act, among those in which an appeal was therein allowed. As that section did not allow an appeal in that action, and the right of appeal does not exist at common law, it results that, if the question before us depends on the terms of that act alone, the action was not appealable. But the plaintiffs in error claim, that there is a clear implication, from the phraseology of the first section, that all actions brought to the county court, where the matter in demand exceeds twro hundred dollars, were intended to be appealable, and that its object was only to modify the then existing law, which gave the right of appeal, in all such actions where the matter in demand exceeded seventy dollars, so as only to exclude that right, in such actions where it does not exceed two hundred dollars, and consequently to retain it as before, where it exceeded the latter amount. We think, however, that that section was intended to be conversant only with the exclusive original jurisdiction of the county court, and that the phraseology alluded to, was adopted for the purpose of defining that jurisdiction, and not of distinguishing between actions in that court which should be appealable, and those which should not. Its only object was to extend such jurisdiction to all actions wherein the matter in demand should not exceed two hundred dollars, instead of limiting it to those where it should not exceed seventy dollars, as was done by the previously existing law. If its design was such as the plaintiffs in error claim, no good reason can be devised' why, instead of leaving it to vague conjecture, it was not explicitly manifested in the second section, the only object of which was to define the cases where an appeal should be allowed. There would be much force in this claim,.if the act of 1852 had concluded with the first section, and the former law, of which it was an alteration, conferring appellate jurisdiction on the superior court, were framed with appropriate language to retain such jurisdiction, after the exclusive jurisdiction of the county court was extended. But a reference to the law thus altered, will clearly show, that it is applicable only to the county and superior courts as then constituted, with regard to their jurisdiction, and could not be applied to the provisions of the law of 1852, upon any proper principle of construing statutes, nor without producing great confusion.

But the provisions of the second section of the law of 1852 clearly show, that it was the intention of the legislature not to retain any of the former laws in regard to the appellate jurisdiction of the superior court, but wholly to supersede them. That section provides very particularly, in what cases an appeal may be allowed from the county court, and, what is very noticeable, among those cases, specifies not only several where the right of appeal had not been theretofore allowed, but also, several in which the right had before existed ; thus showing, that all-former laws, giving a right of appeal, were intended to be abrogated. The concluding section of the act also evinces the same intention. Hence we must consider that act to be not merely a modification of the previous laws in regard to the appellate jurisdiction of the superior court, but a repeal of them, and a remodeling of the judicial system, so far as it respects such jurisdiction. ' We would only add, what is in itself the strongest evidence of the intention of the legislature on the question before us, that the original action in this case can not be held to have been appealable, without rendering essentially nugatory the fourth section of that act. It is obvious, that if that action was appealable, there could be no cases on which that section could have any operation, unless we except the few cases of actions brought on bonds or notes given for the payment of money only, vouched by two witnesses ; to which alone it can not be rationally believed that that section was intended to apply.

Other views, confirming the opinion we have expressed, might be presented, which, however, we omit, considering it unnecessary, especially since the essential modifications that the law in question has recently undergone.

Our advice therefore is, that the judgment of the county court be affirmed.

In this opinion the ofher judges concurred.

Judgment affirmed.


author: Waitk, J.

text:
    Haskell vs. Bailey and others.
    Where a mortgagor has been permitted to remain in the undisturbed possession of the mortgaged premises, for a period of more than fifteen years, without the payment of any portion of the mortgage debt, or the performance of any act recognizing the continued existence of the mortgage, and until after an action for the recovery of the debt has become barred by the statute of limitations, the mortgagee will not be permitted to sue for a foreclosure.
    The rule, that the defendant must plead the statute of limitations, to avail himself of its benefits, does not apply to suits in chancery.
    A mortgagee brought his bill to foreclose certain premises, mortgaged to him, to secure a promissory note, payable on demand. No answer was filed to the bill, and the cause was referred to a committee, from whose report it appeared, that no payment had been made upon the note, for more than seventeen years, and that, during all that time, the mortgagor had continued in the uninterrupted possession of the premises. Held, that the mortgagee was barred of the right to foreclose said premises, by the statute of limitations, and that the defendant might avail himself of this defence, although not pleaded by him.
    This was a bill in equity, praying for the foreclosure of mortgaged premises. No answer to the bill was filed, and the cause was referred to a committee, who made his report to the superior court, holden at Norwich, on the third Tuesday of March, 1853.
    The committee found, that, on the 22d day of February, 1833, the defendant, Bailey, made and delivered to Joseph Bailey, the intestate, then in full life, since deceased, his promissory note, of that date, for the sum of $1,278.99, payable on demand, with annual interest; and, to secure the payment of said note, executed a mortgage of the premises ; the condition of the deed being, that, if he paid the note, the deed was to be void. No payment was ever made, and the mortgagor continued in the undisturbed possession of the premises, until the suit was commenced, on the 3d day of March, 1852. The other defendants had attached the premises, as the property of the mortgagor.
    The question, whether the plaintiff, upon the facts found in the ease, was entitled to the relief he sought, was reserved for the consideration and advice of this court.

      E. Perkins, for the plaintiffs,
    contended, 1. That every fact which, in any case, entitles a mortgagee to a decree of foreclosure, is found by the committee ; a debt still due and unpaid, and a mortgage, executed, in all respects, according to law, to secure its payment. Payment of the debt is not to be presumed, from lapse of time. No such presumption arises, short of twenty years. Oswald v. Leigh, 1 Term R., 270. Boardman v. DeForest, 5 Conn. R., 1. Daggett v. Tollman, 8 Conn. R.,168.
    2. That the plaintiff’s right to a decree is not affected by the statute of limitations. A debtor, to avail himself of the benefit of that statute, either at law or in equity, must plead it, and thus give the plaintiff an opportunity to show that he is within the savings of the statute. Robbins v. Harvey, 5 Conn. R., 335. 1 Sw. Dig., 714. Bulkley v. Bulkley, 2 Day, 363.
    3. The fact, that the debt is barred at law, by the statute of limitations, is no defence to a bill for a foreclosure, or action of ejectment. Belknap v. Gleason, 11 Conn. R., 160. Higgins v. Scott, 2 Barn. & Adol., 413. And, so long as the debt is not barred by the statute, or is removed from its operation, by an acknowledgment or payment of interest, the remedy of foreclosure or ejectment is good, even against the limitation, as to entry upon lands.
    4. The statute of limitation can not be pleaded, in bar of the mortgagee’s remedy, by action of ejectment, or bill of foreclosure, until fifteen years after the debt is in fact satisfied, or, from the lapse of time, (twenty years,) is presumed to be satisfied. All the authorities concur in the opinion, that the possession of the mortgagor, during the existence of the debt, is not adverse to the mortgagee, b„ut that it is constructively the possession of the mortgagor.
      Gould v. Merriman, 6 Mass. R., 239. Perkins v. Pitts, 11 Mass. R., 125. Jackson v. Laughend, 2 John. R., 75. Higginson v. Mein, 4 Cran., 415. 2 Sw. Dig., 106.

      Foster and Wait, for the defendants,
    contended, 1. That both the debt, and the right to foreclose the equity of redemption, in the land, are barred by the statute of limitations. The statute began to run, when the note and deed were executed, and had run over nineteen years, when the suit was brought. Fifteen years in this state, where there are no statute disabilities, will bar an equity of redemption. Skinner v. Smith, 1 Day, 124. Lockwood v. Lockwood, 1 Day, 295. The same, and even stronger reasons exist, why the statute is a bar to a bill to foreclose ; for the mortgagor rather than the mortgagee, is the favorite in a court of equity. Belknap v. Gleason, 11 Conn. R., 164. Sto. Eq. Plead., § 757.
    2. That there was no necessity, that the defendant should plead the statute, in order to take advantage of it. If the facts, found true by the report, had appeared on the face of the bill, it would have been bad on demurrer. Sto. Eq. Plead., § 484, 503, and note.
    The only reason for requiring the statute to be pleaded, is, that the plaintiff may not be taken by surprise, or that he may have opportunity to reply over matter in avoidance of the statute. The fact being found of record, we are entitled to the benefit of it.
   Waitk, J.

The mortgagee, in the present case, and those who claim under him, have suffered the mortgagor to remain in the undisturbed possession of the mortgaged premises, for a period of more than fifteen years, without requiring payment of any portion of the debt, or the performance of any act, recognizing the continued existence of the mortgage. And the question now is, whether, after the lapse of that time, the plaintiff, as the legal representative of the mortgagee, is entitled to a decree of foreclosure.

That lapse of time will-bar a suit in equity, even where no statute of limitations directly governs the case, is now a well established rule in courts of chancery. Hughes v. Edwards, 9 Wheat., 481. Elmendorf v. Taylor, 10 Wheat, 168. Pratt v. Vattier, 9 Peters, 405. Miller v. McIntyre, 6 Peters, 405. Beckford v. Wade, 17 Ves., 87.

The only inquiry, therefore, is, what length of time, under our laws, is' required, to bar a suit for the foreclosure of mortgaged premises ?

It is said by Judge Story, in his commentaries upon equity jurisprudence, that, if a legal title would, in ejectment, be barred by twenty years adverse possession, courts of equity will act upon the like limitation, and apply it to all cases of relief, sought upon equitable titles, or claims, touching real estate.” Sto. Eq., § 1520.

Hence, in those states, where the right of entry upon lands is, by statute, limited to a period of twenty years, a mortgagor, who has suffered the mortgagee to remain in possession of the mortgaged premises, during that period, can not afterward sustain a bill to redeem, without showing such circumstances, as will relieve his case from the operation of the general rule. 2 Sto. Eq., § 1028.

As, in this state, the right of entry upon lands is limited to a period of fifteen years, our courts, proceeding upon the same principle, have repeatedly holden, that the mortgagor, under such circumstances, must bring his bill to redeem, within fifteen years, and is not allowed twenty years for that purpose. And they have said, that “ it may be adopted, as a rule, that, the mortgagee being in possession, a mortgagor shall not have more than fifteen years, to redeem, after his equitable right has accrued, unless the delay shall be accounted for by statute disabilities, or other special circumstances, that may be considered equivalent.” Skinner v. Smith, 1 Day, 127. Lockwood v. Lockwood, 1 Day, 295. Jarvis v. Woodward, ante, p. 548.

In addition to the provision in relation to entry upon lands, our statute concerning the limitation of civil actions, further provides, that “ no action shall be brought on any promissory note, not negotiable, but within seventeen years next after an action on the same shall accrue. Stat. 1849, title 31, sec. 1 & 2.

As the note, in the present case, was payable on demand, and more than seventeen years had elapsed after the execution, and before the commencement of the present suit, no action could then be sustained upon it, provided the maker thought proper to avail himself of the provisions of the statute of limitations.

But, although the plaintiff’s remedy upon the note is gone, it does not necessarily follow, that his right to resort to the pledge is lost. And, it has accordingly been holden, that, notwithstanding an action for the recovery of the debt is barred, the mortgagee may afterward sustain a bill to foreclose the equity of redemption. Belknap v. Gleason, 11 Conn. R., 160.

But this right is not an unlimited one. Lapse of time will operate as a bar of such a suit, as well as one to redeem, or any other suit in equity. The only difficulty, as before remarked, is, in determining what length of time is requisite for such purpose.

As our courts have adopted a rule, that fifteen years undisturbed possession, by a mortgagee, will generally operate as a bar to a bill to redeem, a similar rule, in our opinion, ought to be applied to bills to foreclose. And we know of no reason, why a period of twenty years should be adopted in the latter case, and not in the former.

We therefore think, that where a mortgagor, as in this case, has been permitted to remain in the undisturbed possession of the mortgaged premises, for a period.of more than fifteen years, without the payment of any portion of the debt, or the performance of any act, recognizing the continued existence of the mortgage, and until after an action for the recovery of the debt had become barred’by the statute of limitations, the mortgagee ought not to be permitted to sue for a foreclosure.

The plaintiff further claims, that the defendant, in order to avail himself of the benefit of the statute of limitations, either in law or equity, must plead it, and thus give the plaintiff an opportunity to show, that he is within the saving of the statute.

Had the plaintiff brought an action of assumpsit on the note, there is no doubt but that the defendant must have pleaded the statute, in order to have availed himself of the benefit of its provisions.

But, that rule does not apply to suits in chancery. And it has accordingly been repeatedly holden, in modern cases, contrary to opinions formerly expressed, that an objection to a bill to redeem, on the’ ground of length of time, may be taken, by way of defence, under a demurrer, provided the bill be so framed* as to present such a case, and that, if the plaintiff be within any exception to the statute, it is incumbent upon him so to state it in his bill. Sto. Eq. Plead., §484. Hardy v. Reeves, 4 Ves., 479. Bulkley v. Bulkley, 2 Day, 363.

We see no reason, why the same principle does not apply to bills to foreclose, as to bills to redeem ; and why the same objection may not be made to the plaintiff’s title, when the facts appear, without objection, upon the .report, as if stated in the bill. It is enough, that the length of time relied upon appears in the case.

Our advice therefore is, that the plaintiff’s bill be dismissed.

In this opinion, the other judges concurred.

Bill to be dismissed.


text:
    Peck and another vs. The New London County Mutual Insurance Company.
    The charter of the New London County Mutual Insurance Company provides, that all persons who shall at any time become insured, in said company, shall be bound by all the provisions of said charter, and that “ no insurance on any property shall be valid to the insured, unless he has a good and perfect, and unincumbered title thereto, at the time of effecting such insurance, and unless the true title of the assured to the same, and the incumbrances, if any, be fully disclosed and expressed in the proposals for insurance, and be also specified in the policy.” A and B made a joint application, in writing, to the agent of said company, for insurance upon a building used as a tannery, and the stock therein; A being the sole owner of sai'd building, which was exclusively occupied by B, who was sole owner of said stock. Said agent, knowing the precise interest which A and B had in said property, accepted and approved said application, and, at his own suggestion, filled up a policy of insurance, purporting to insure the plaintiffs, as the joint owners of said tannery and stock. In an action upon said policy, in the names of A and B, it was held 1. That, as the plaintiffs together had a perfect title to the property insured, the policy was not void, on the ground that the true state of such title was not stated in the proposals. 2. That the defendants could not deny, that the title of the plaintiffs was as stated in their declaration. 3. That parol evidence of what took place between the plaintiffs and the agent of the defendants, at the time the property was insured, was admissible in such action, for the purpose of showing, that the parties agreed to treat such insured property as the joint property of the plaintiffs, and in support of the allegation, in their declaration, that they owned the same, and to rebut the presumption that said policy was a wagering policy.
    Where the charter of said company provided, that, if “ insurance upon any property should subsist in said company, and in any other company at the same time, the insurance by the defendants, should become absolutely void, unless such double insurance should subsist, with the consent of their directors, signified by an endorsement, on the back of the policy, subscribed by their secretary,” and the interest of one of the plaintiffs in the property insured, was, at the time of the loss alleged, under insurance in another company, and the plaintiffs in an action thereon, offered in evidence, an endorsement, in writing, on the back of said policy, signed by the agent of the defendants, purporting, on their behalf, to give their consent to such further insurance, in connection with evidence, that such agent was, by virtue of the practice and usage of the defendants, authorized to grant such license, on all policies issued by him: it was held, that such evidence was admissible, and that, as the defendants were not confined by their charter to a single secretary, whenever they directed any agent or officer to perform the appropriate duties of a secretary, they made such agent or officer secretary, for that purpose.
    This was an action, brought by Seth L. and George R. Peck, upon a policy of insurance against loss or damage by fire, to the amount of one thousand dollars, viz., $500 upon a tannery and bark-mill, and $500 on stock therein.
    The policy declared on was in the usual form, and purported to he pursuant to, and under the conditions and limitations of, the charter of said company. The declaration alleged, that the plaintiffs were the owners of the property described in said policy, to wit: “ the building mentioned and described in the same, said bark-mill, and the stock, to wit, the hides, leather, bark, &c., upon said premises, and in said building,—and that, during the continuance of said policy, the plaintiffs continued to be, and were the owners of said property.”
    The cause was tried to the jury, before the superior court for New London county, at the term thereof, holden in March, 1853.
    On the trial, it was admitted, that the policy of insurance, and a renewal thereof, endorsed thereon, were duly executed and delivered, and that said building was destroyed,, and the insured stock damaged by fire, within the life-time of the renewed policy, and that due notice of said loss was given to the defendants.
    The plaintiffs then introduced in evidence their original application for insurance under said policy, which was as follows, viz. :

      “ An application to the New London County Mutual Fire' Insurance Company, for insurance against loss by fire, on a building used as a tannery, forty-eight feet by twenty-six, two stories high, with a stone basement up to the windows. In one part is a bark-mill, for the use of said tannery, which is more than fifty feet from any other building, situated in the town of Lyme, county of New London, state of Connecticut, which I estimate to be worth eight hundred dollars, upon which I want to obtain insurance, to the amount of five hundred dollars. (If any incumbrance, it must be mentioned.) We also wish to obtain insurance upon the stock in said building, consisting of hides, leather, and bark, &c., to the amount of five hundred dollars, valued at one thousand dollars. Dated at Lyme, this 27th day of March, A. D. 1848.
    Seth L. Peck,
    George R. Peck,
    By Seth L. Peck.
    Premium, 75 cents on $100.
    Amount paid, $7.50.
    Approved by Lodowick Bill, Agent.”
    They also introduced in evidence, a copy of the charter of said company, annexed to said policy,—the third section of which provides, “ that all persons who shall, at any time, become insured in, or with, said company, during the times specified in their respective policies, shall, at all times, be concluded and bound by the provisions of said charter.”
    The thirteenth section provides that “ No insurance, effected on any property, shall be good and valid to the insured, unless he has a good and perfect, and unincumbered title thereto, at the time of effecting such insurance, or unless the true title of the assured to the same, and the incumbrances, if any, be fully disclosed and expressed in the proposals for insurance, and be also specified in the policy.” The twenty-first section is as follows :
    “ If insurance upon any property shall be and subsist in said company, and at or in any other office, for insurance against loss or damage by fire, or with or from any other person or persons, at the same time or during said period of time, or any portion of the time when insurance subsists in the New London County Mutual Fire Insurance Company, the said insurance made and effected in the last mentioned company, shall be deemed and become absolutely void, unless such double insurance subsist with the consent and approbation of the board of directors, signified by an endorsement on the back of the policy, by the secretary of said company, and by him subscribed, in pursuance of an order to that effect, given and passed by the said board of directors.”
    It was admitted, that, at the times of the application for the issuing of said policy, and also of said fire, the said George R. Peck was the sole owner, in fee, of said building insured, and that the same was occupied by Seth L. Peck, as a tenant, for a tannery, but, without any specified lease, or any definite contract to occupy ; that, during the same period, said Seth L. was the sole owner of said insured personal property, and the same was in his exclusive possession ; and it was proved, that these facts were fully stated by the insured, to the agent of said company, who filled up and issued the policy, at the time of insuring, in its present form, at his own suggestion, provided parol proof of the same was admissible. The defendants objected to the admissibility of said evidence, but the same was admitted by the court. No question was made between the parties, as to the actual amount of the loss.
    The defendants thereupon claimed, and asked the court to charge the jury, that, if they found the facts as proved and admitted, as to the title of the plaintiffs, in the insured property, such facts did not sustain the allegation in the declaration, that the plaintiffs were joint owners of the insured property, and that the plaintiffs were, therefore, not entitled to recover against the defendants, on this declaration and proof.
    The defendants also claimed, and asked the court to charge the. jury, that the. charter of said company was a part of the contract of insurance, declared on, and that as by the thirteenth section of said charter, it is provided that no insurance effected on any property shall be good and valid to the insured, unless he has a good and perfect and unincumbered title thereto, at the time of effecting such insurance, or unless the true title of the assured to the same, and the incumbrances, if any, be fully disclosed and expressed in the proposal for insurance, and be also specified.in the policy, and as this policy is a joint policy, to the two plaintiffs alike, in the building, and in the personal property; if the jury should find the facts to be as proved by the plaintiffs and admitted by the defendants, the plaintiffs were not entitled to recover, and their verdict should be for the defendants; and, that, independently of any such provision in said charter, the plaintiffs were not entitled to recover on their policy and declaration, either for the building, or the personal estate, except so far as they showed a joint interest in the one or the other; and that, on the facts, as proved by the plaintiffs, and admitted by the defendants, there was no such joint interest' in either the building or personal property, as would entitle the plaintiffs to a verdict.
    But the court omitted and refused so to charge the jury, but instructed them, that, if they found the facts to be as proved by the plaintiffs, and admitted by the defendants,— that George R. Peck was the sole owner of the building insured, but that the same was solely and exclusively occupied by Seth L. Peck, as tenant of said owner, then, in the opinion of the court, given pro forma, both- plaintiffs had an insurable interest in the building, and for that, were entitled to recover the amount insured, with the interest after ninety days from the notice to the defendants of said loss; that, as to the personal property, there was more difficulty; but they might, upon the facts proved and admitted, render a verdict also for the personal property, but should state, in their verdict, how much they found the damage to the personal property to be, as separate and distinct from the damage to the building. It was admitted, that, at the time of said fire, there was an insurance on Seth L’s interest in said personal property, to the amount of $1,000, in the St. Lawrence County Mutual Fire Insurance Company, effected in the month of May, 1849, and that, since said fire, said company had paid to said Seth L. two-thirds of said total loss on said personal property. They also offered in evidence, an endorsement, in writing, on the back of the defendants’ policy, signed by Lodowick Bill, agent, purporting, on behalf of said defendants, to give the consent of said defendants to .effect said further insurance, together with testimony of witnesses, to show that said Lodowick Bill was a local insurance agent of said defendants, and, as such, was authorized, by virtue of the practice and usage of said defendants, to grant such license, for further insurance on all policies, issued by him, in behalf of said defendants; to the admission of which evidence the defendants objected, on the ground, that the charter of said defendants was a part of the contract between the parties, and that parol evidence, to control, vary, or explain such contract, was inadmissible, and that such evidence and usage were in direct conflict with the twenty-first section of said charter, by which the plaintiff was bound. But the court overruled the objection, and admitted the evidence.
    The jury having returned a verdict for the plaintiffs, for the damage both to the real and personal property, the defendants moved for a new trial.

      E. Perkins and Wait, with whom was McCurdy, in support of the motion,
    contended, 1. That as, by the charter of the defendants, if the insured, at the time of insurance, had a less estate than a perfect unincumbered title, in fee, in the insured property, it was their duty to disclose such fact to the defendants, and to state, in their proposals, the nature of their title, and the incumbrances on the same ; an omission to do so amounted to a warranty that they have a good, and perfect, and unincumbered title to the property insured. Ill.

      M. Ins. Co. v. Marseilles Mu. Co., 1 Gil. R., 236; 4 U. S. D., 205. Jennings v. C. Ins. Co., 2 Den. R., 75 ; U. S. Dig., 1847, p. 314. Wood v. Hartford Fire Ins. Co., 13 Conn. R., 533-44. Warner v. Mid. M. I. Co., 21 Conn. R., 444, 448. The declarations of the insured, respecting their title to, and occupation of, the property insured, were inadmissible, as the only object of such evidence was to explain or contradict a written contract. Even if the parol testimony offered is admissible, it does not sustain the allegations in the declaration, which set forth a joint ownership. The proof shows a sole ownership of George Peck, in the real, and of Seth L. Peck, in the personal estate. Howard v. Albany Ins. Co., 3 Denio, 301; U. S. Dig., 1848, p. 228. Mitchell v. Ostrom, 2 Hill R., 520; 2 U. S. Dig., 532. 1 Sw. Dig., 691. 4 Conn. R., 259, 568. 9 Conn. R., 508. 14 Conn. R., 411. 15 Conn. R., 298. 1 Greenl. Ev., sec. 64, 65.
    2. The language of the application for insurance, implies a joint interest by the plaintiffs, in both real and personal estate, and no other. The language of the declaration is, that “ they, the plaintiffs, were the owners of said property, to wit, the building,” and “the stock”—that is, they were the joint owners.
    3. Their “true title” to the property, was not “fully disclosed and expressed in the proposals for insurance,” nor was the same “ specified in the policy.” They are, therefore, precluded from recovering, by the thirteenth section of their charter. Burritt v. Saratoga Ins. Co., 5 Hill, 188. Ingraham v. S. C. Fire Ins. Co., 3 Brev., 522.
    4. The plaintiffs, independently of the charter, can not recover; because they do not jointly possess an insurable interest in the property. The insurance, covering the personal property, so far as George Peck was concerned, was a wagering policy, and void in law, which renders void the entire insurance.
    5. That any parol evidence, tending to show, that a local agent was authorized to consent to and permit the plaintiffs, to effect additional insurance on the property, is inadmissible, as the twenty-first section of said charter directs in what manner and by what authority, double insurance can be effected. Stark Co. M. Ins. Co. v. Hurd, 19 Ohio R.; U. S. Dig., 1851, p. 277 ; 5 Hill R., 188.

      Foster and Chadwick, contra,
    contended, 1. That the plaintiffs together had an insurable interest in the building, and it is not necessary that they should be joint owners. A person who has such an interest that the destruction of the property, by fire, will occasion him a direct pecuniary loss, may join with others who have an interest in the same property, and effect a joint insurance. In the event of a loss under the policy, they may all join in the suit, and recover for the loss, and each plaintiff will be entitled to his proportion of the amount. Niblo v. North Am. Fire Ins. Co., 1 Sandf. Sup. Ct. Rep., 551, (9 U, S. Dig., 283.) Bulkley v. Derby Fishing Co., 1 Conn. R., 571. Higginson v. Dale, 13 Mass. R., 96. The true state of the ownership was made known to the agent of the company, and the form in which the policy should be issued, was determined by him, and the owner of the real estate, from the facts disclosed, could have entered into possession, at any time, and held possession of the personal property, till his rent or storage was paid; which constitutes an insurable interest. Buck v. Ches. Ins. Co., 1 Peters, 163. Craufurd v. Hunter, 8 Term R., 13. Lucena v. Craufurd, 3 Bos. & Pul., 75.
    2. The subsequent insurance does not vitiate this policy. This corporation may give their consent to another insurance, in other modes than that claimed by the defendants, and when given, it is binding upon them. A different rule would be in violation of good faith. Bulkley v. Derby Fishing Co., 2 Conn. R., 250.
    3. The question, as to the admissibility of the parol evidence, is settled, by all the cases previously referred to, which decide its effects.
   Hinman, J.

We think the plaintiffs are entitled to retain

their verdict, upon the facts stated in the motion ; and that the several objections to their right to recover can not prevail. First, it is claimed, that the policy is void, because the true state of the plaintiffs’ title to the property insured, was not stated in the proposals. This document is very short: it purports merely to make application for insurance, to the amount of five hundred dollars on a tannery and bark-mill, and also five hundred dollars on the stock of hides, leather and bark therein. The approval of the defendants’ agent is endorsed on it, and it is signed by the plaintiffs. The motion shows, that, at the time it was made, and the "policy issued, the plaintiffs went to the defendants’ agent, and disclosed to him fully their precise situation, touching their title to this property ; particularly, that George R. Peck was the sole owner of the building, and the other plaintiff exclusively occupied it, and was the sole owner of the personal property ; and, with full knowledge of this, the agent, at his own suggestion, filled up and issued the policy, in its present form, purporting to insure the plaintiffs, as the joint owners of the property. Now, it is clear, there was no incumbrance upon the property. One or both the plaintiffs had a perfect title to it,—and the only object of the thirteenth section of the charter is to provide against any incumbrance there may be upon property insured. When there is an incumbrance upon the property, so that the insured have a less estate than a perfect, unincumbered title, they must state their true title to it. This means, that they must state their true title, in regard to any incumbrance upon it,—not that they must enter into a detail of the precise amount of interest which each one of the insured has in it. It is enough, that, among all the persons insured in a single policy, they have a perfect title, or a title incumbered only in the manner which is stated in the proposals. Again, it is claimed, that the declaration varies from the proof, in this, that it sets forth a joint ownership of the property, whereas the proof was, that each one of the plaintiffs owned different parts of it, in severalty. There might be something in this claim, if the plaintiffs had procured the joint insurance, without disclosing their several interests in the property. No doubt, there are cases which go to show, that, where a joint interest is averred in the declaration, it must be proved, and that it can not be supported by proof of a sole interest in one ; but it is unnecessary to consider this point here. The parties had power, by their agreement, to consider the property to be jointly or severally owned, as they pleased, and to treat it accordingly ; and we do not see, why they could not do this, for the purpose of insuring it, as well as for any other purpose. Here it appears, that the defendants’ agent, knowing the precise interest of both plaintiffs in the property, accepted and approved of the application for insurance, made by them jointly. Indeed, it is said, and not denied, that he drew up the application himself. At his own suggestion he filled up and issued the policy, in its present form. Under these circumstances, we think it is not competent for the defendants, to deny the joint title of the plaintiffs to the property insured. It is claimed, that the parol evidence of what took place, at the time the policy was issued, between the defendants’ agent and the plaintiffs, ought to have been rejected, on the ground, that the whole contract was merged in the writings. This evidence was objected to, generally; and it follows, that, if it was admissible for any purpose, it could not have been rejected. It was clearly inadmissible, for the purpose of qualifying or explaining the contract, and, we presume, was not used for any such purpose. But, we think it was properly received, for the- purpose of showing, that the parties agreed to treat the property insured, as the joint property of the plaintiffs. In this aspect, it went to prove that part of the declaration which alleges, that the plaintiffs owned the property insured. It is said by the defendants’ counsel, and we think, correctly said, that this is tantamount to an allegation, that they owned the property jointly. Now, this joint ownership might have been proved directly, by showing the fact to be as alleged ; or it might be, as in this case it was proved, by proving that the defendants, when they insured it, agreed to consider it as joint property.

Another point made in argument is, whether the insurance was void, in consequence of the want of interest of one of the insured in the real estate, and of the other in the personal estate. No doubt, from the nature of the contract, to indemnify the plaintiffs against loss, they must both have an interest in the subject matter of the insurance. Besides, a want of interest would render the policy a mere wager. We, however, know of no rule that requires, that the interest of a party insured, should be in his own right. He may insure, as trustee for another. We believe it is the common practice of commission merchants to insure in their own names, the goods of their various employers, and to cover the whole, in a single policy and, in such cases, it is not necessary even to name the persons who are interested in the policy.

Now, the plaintiffs, in fact, owning the property severally, but both together taking a joint insurance of the whole, each one, by this act, became, after the loss, a trustee for the other, with a right to recover, as such trustee, the value of the property not owned by him severally; and as he had a right to recover, in his own name, for his own several loss, they therefore became jointly interested in the whole loss ; and, for the purpose of showing this joint interest of the plaintiffs, in the whole property, and to rebut any presumption that it was a wagering policy, the parol evidence to which we have before alluded, was properly received.

The only remaining point is, as to the effect of the subsequent insurance of Seth L. Peck’s interest in the personal property, without first procuring the consent of the defendants to such insurance, and having such assent signified by an endorsement on the back of the policy, by the secretary of the defendants, as is said to be required by the twenty-first section of the defendants’ charter. That section provides, that, while insurance on any property subsists in the defendants’ company, and in any other office for insurance' against fire, at the same time, the insurance effected in the defendants’ company, shall be void, unless such double insurance subsist with the consent of the board of directors of the defendants’ company,signified by an endorsement on the back of the policy, by the secretary of the company, and by him subscribed, in pursuance of an order to that ef- • feet, given and passed by said board of directors. It was admitted, that Seth L. Peck’s interest in the personal property was under insurance, by the St. Lawrence County Mutual Insurance Company, at the time of the loss; and, to show that this double insurance was authorized under this section of the charter, the plaintiffs offered in evidence, an endorsement, in writing, on the back of the policy, signed by Lodowick Bill, agent, purporting, on behalf of the defendants, to give their consent to effect such further insurance, together with testimony of witnesses, to show, that said Bill was a local insurance agent of the defendants, and, as such, was authorized, by virtue of the practice and usage of the defendants, to grant such license on all policies issued by him. This evidence was* objected to, but received by the court. The principle sanctioned by this court in Buckley v. Derby Fishing Co., 2 Conn. R., 252, is sufficient to justify the admission of this evidence, even admitting that Bill was, strictly speaking, a mere agent, and that it is improper to call, or consider, him, the secretary of the company, for the purpose of authenticating this license. But, we think the evidence went to show, and would have justified the jury in finding, that, within the limits of his agency, and upon policies issued by him, as was the one in question, the company had made him their secretary, within the meaning of this twenty-first section of the charter, for the purpose of signing endorsements of this character, on the back of policies issued by him.

There is nothing in the charter, which confines the company to a single secretary; and, when they have directed any of their agents or officers to perform any of the appropriate duties of the secretary, they make such agent or officer a secretary, for that purpose. Any other doctrine would be liable to be abused, for fraudulent purposes. Upon the whole case, therefore, we do not advise a new trial, on any of the grounds claimed.

In this opinion, the other judges concurred, except Ells-worth, J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.


author: Church, C. J.

text:
    The City of Norwich vs. Hubbard and another.
    A mortgagee of real estate, out of possession, can not be considered, or treated, as the proprietor of such mortgaged estate.
    The charter of the city of Norwich provides, that the common council of said city may order the proprietor, or proprietors, of the land and buildings, fronting side-walks and gutters, at their own expense, to level, raise or form such side-walks and gutters on their ■ several fronts, &c., and may limit ¡such time as they may deem reasonable therefor. And in case of neglect, on the part of such proprietor or proprietors, may employ some meet person to do the same, and liquidate the expenses thereof, and order the same to be paid by such proprietor, and that all such expenses and interest thereon shall be alien, or real incumbrance, upon the land and buildings, in reference to which such expenses have been incurred ; and that the payment thereof may be enforced, in like manner as if said land and buildings were mortgaged to said city. Certain premises fronting on a street in said city, being subject to a mortgage, the court of common council ordered, that said street should be curbed, graded, and flagged, and that notice thereof should be given to the proprietors of lands adjoining and fronting said side-walk. L, the mortgagor, was notified of such order, but no notice was given to the mortgagee. L having failed to comply with the order, said street was curbed,- graded and flagged, in front of said mortgaged premises, by a meet person, appointed for that purpose, and the expense thereof liquidated and ordered to be paid by L, which he neglected and refused to do.
    On a bill in equity, brought by said city against both the mortgagor and mortgagee to enforce their lien upon said premises, it was held, that the mortgagee was liable to be foreclosed of his right to redeem said premises, unless he paid the amount expended as aforesaid.
    This was a bill in equity, brought by the city of Norwich, to enforce a lien, claimed by the plaintiffs, to exist, as security for the payment of $104.25, which they had expended, in grading, curbing and flagging a sidewalk.
    The third, fourth, fifth and sixth sections of the amended charter of the city of Norwich are as follows :
    “ Sec. 3. The court of common council, of said city, shall have power and authority, from time to time, as public convenience may require, to designate and fix the width, course, height and level of sidewalks and gutters, in and upon the streets and highways in said city.
    “ Sec. 4. Said court of common council may, from time to time, order the proprietor or proprietors of the lands and buildings fronting such sidewalks and gutters, at their own expense, to level, raise or form such sidewalks and gutters, on their several fronts, according to their width, course, height and level, designated as aforesaid, and also to flag, or to pave such sidewalks or gutters, in such manner as said court of common council shall direct. And said court of common council may limit such time as they shall deem reasonable, for leveling, raising or forming, and for flagging or paving such sidewalks or gutters, and in cases where the lands or buildings, fronting such sidewalks or gutters, shall be holden for a term of years, or any other estate less than fee simple, said court of common council may, by their order, apportion, in such manner as they shall judge right, the expense of raising, leveling or forming and flagging or paving such sidewalks or gutters, among the different persons having an interest in the lands or buildings holden as aforesaid. And whenever the proprietor or proprietors of any such lands or buildings shall, not reside within this state, notice, in writing, to the occupant or occupants, or person having the care of any such lands, or buildings, of any such order, shall be sufficient notice to all persons interested therein.

      “ Sec 5. If any proprietor or proprietors of any such lands or buildings shall neglect to level, raise or form, flag or pave, any such sidewalk or gutter, in such manner and within such time, as said court of common council shall direct and limit; said court of common council may appoint and employ some meet person, to raise, level or form, and to flag or pave such sidewalk or gutter, and may adjust and liquidate the expenses thereof, and order the same to be paid, by such proprietor or proprietors, neglecting as aforesaid. And said court of common council may appoint a collector, to whom the mayor, or one of the aldermen of 'said city, shall issue a warrant of distress, authorizing him to collect, of such proprietor or proprietors, respectively, the sums ordered to be paid by them respectively, as aforesaid.
    “ Sec. 6. All such expenses, and the interest thereon, shall be a lien, or real incumbrance, upon the land and buildings, in reference to which such expenses have been incurred; and, in case the same shall not be obtained, by the collector appointed to collect the same, the payment thereof may be enforced in like manner, as if said land and buildings were mortgaged to said city, to secure the payment thereof.”
    The plaintiffs, in their bill, alleged, substantially, that, on the 4th day of August, 1851, the court of common' council of said city, designated and fixed the width, course, height and level of the sidewalk, and the curbing and grading thereof, on the west side of Thames street, in said city, between the north-easterly corner of D. N. Bentley’s store and Page’s corner, so called; that said court of common council, on the same day and year, ordered the proprietors of lands, adjoining and fronting said sidewalk, to curb, grade and flag the same, as ordered, laid out, and designated as aforesaid, six feet within said curbstone, where the sidewalk would admit of it, and the whole width, where it was less than six feet, and to complete the same, to the satisfaction of the street commissioners, on or before the 10th day of October, 1851, and that notice thereof should be given to said proprietors; that Charles J. Lanman, of said city of Norwich, at the time said order of notice was made and given, was, and still continued to be, one of the proprietors of land and buildings fronting said sidewalk, and then was, and ever since has continued to be, the owner in fee of said land; that said Lanman was duly notified of said order, and that he neglected and refused to comply with the same ; that said court of common council, on the fifth day of November, 1851, appointed and employed one Noyes, a meet person, of said city, to flag, curb and grade said sidewalk, in conformity with said order, in front of said land and buildings of said Lanman, which said Noyes afterward did, and presented his account of the expenses thereof to said court of common council; which, being adjusted and liquidated, amounted to the sum of $104.25, and was ordered to be paid by said Lanman, who neglected and refused to pay the same; that, on the 31st day of January, 1852, the may- or of said city issued his warrant of distress, directing the city collector to collect the same of said Lanman. On the 30th day of March, 1852, said collector made a return of said warrant, stating, that he had made demand of said Lanman, of the sums contained in said warrant, which he refused to pay, and that he had made search for goods and chattels of said Lanman, whereon to levy, and satisfy said warrant, but could find none within his precincts, and therefore, that he returned said warrant, wholly unsatisfied, and that said sum of money, specified in said warrant, remained wholly due and unpaid.
    Prior to said proceedings, by said court of common council, and the order for making, grading and flagging said sidewalk, said Lanman mortgaged said lands and buildings to Amos H. Hubbard, of said Norwich, to secure payment of certain notes and debts, due to said Hubbard from said Lanman, and to indemnify said Hubbard against certain obligations by him assumed, for the benefit of said Lanman ; which mortgages were then, ever since have been, and still are, a lien on said lands and buildings; and that said Hubbard had no notice of the proceedings aforesaid, concerning said sidewalk.
    Said bill prayed the court, on finding the facts therein alleged to be true, to limit and appoint a time, within which said Lanman and Hubbard should pay to the plaintiffs, said sum of $104.25, and interest thereon, from the time when the same was due, or be foreclosed from all right to redeem said premises.
    To this bill, the defendant, Hubbard, demurred generally. The court sustained the demurrer, and decreed that, as against said Hubbard, the bill should be dismissed. The plaintiffs thereupon filed their motion in error, and brought the record before this court for revision.

      G. Perkins and Honey, in support of the motion,
    contended, that the expenses incurred by the plaintiffs, in flagging the sidewalk in question, and the interest thereon, constituted a lien, or real incumbrance upon the land and buildings described in the bill. Amended Charter of the City of Norwich, sections 3, 4, 5 and 6. To enforce such lien, the plaintiffs were entitled to a decree of foreclosure against both of the defendants. Amended Charter, sec. 6. No other facts are necessary, by the provisions of the city charter, to Jay the foundations for a decree against said Hubbard, than are required to authorize a decree against the-defendant Lanrnan. In both cases, the decree must rest upon the ground that the plaintiffs, by virtue of the proceedings set forth in their bill, have a lien or real incumbrance upon the land sought to be foreclosed. If such lien or incumbrance exists at all, it attaches to, and may be enforced upon, the land. It is a sufficient answer to the claim, of the plaintiffs in error, that notice should have been given to Hubbard, that no such notice is required by the .charter of the city, and that, if it had been given, it could not have been enforced ; for he was not the proprietor of the land, and had only a chattel interest. Barkhamsted v. Farmington, 2 Conn. R., 600. Huntington v. Smith, 4 Conn. R., 235. Leonard v. Bosworth, 4 Conn. R., 421. Toby v. Reed, 9 Conn. R., 216.

      E. Perkins, contra,
    contended, 1. The fourth section of the charter of the city provides, that notice of the order to form and pave the sidewalks opposite landholders, for a term of years, or any other estate less than a fee simple, as well as in fee simple, shall be given to all the different persons in interest. This is necessarily inferred, from the word “ order,” and from the provisions in the last clause of the section, as to notice to non-residents.
    2. If the charter does not, in express words, require notice, still the action of the common council will not affect the rights of the parties interested in the lands, to whom no notice was given. New Jersey Turnpike Co. v. Hall, 2 Harr. R., 437. 5 U. S. Dig., 458. 3 U. S. Dig., 62, sec. 2, 11. 15 Wend. R., 374. 15 John. R., 537. City of Hartford v. Chipman, 21 Conn. R., 488.
    3. At law, Hubbard, as mortgagee of Lanrnan, is the owner or proprietor of the land. In equity, he has a substantial and material interest in the land, to be affected by the proceedings of the city council. Whatever view may be taken of the nature of the estate of a mortgagee of real estate, it certainly is embraced in the comprehensive expression, “ any estate, less than a fee simple.”
   Church, C. J.

This is an application, by the city of Norwich, in the nature of a process of foreclosure, to enforce a lien claimed by said city, to secure the payment of $104.25, incurred as expenses under the third, fourth, fifth and sixth sections of the city charter, in grading, curbing and flagging a sidewalk, fronting the land and buildings of Charles J. Lanman, and of which he was supposed to be the owner and proprietor, and of which Amos -H. Hubbard, one of the respondents, was mortgagee.

The petition, in which all the facts constituting the plaintiffs’ claim are detailed, is demurred to by Hubbard, the mortgagee, because it appears, from the allegations, that he did not receive any notice of the proceedings of the court of common council, whereby it is claimed that said lien was created.

The sections of the charter referred to, in effect, provide that the common council of the city may order the proprietor or proprietors of the land and buildings fronting such sidewalks and gutters, at their own expense, to level, raise or form such sidewalks and gutters on their several fronts, &c., and may limit such time as they may deem reasonable, for levelling, raising or forming, or for flagging or paving such sidewalks, &c., and, if any proprietor or proprietors shall neglect to level, raise or form, flag or pave any such sidewalk, áse., said court of common council may employ some meet person to do the same, and liquidate the expenses thereof, and order the same to be paid by such proprietor, áse. And all such expenses and interest thereon, shall be a lien or real incumbrance upon the land and buildings; the payment thereof may be enforced in like manner as if said land and buildings were mortgaged to said city,” áse.

The question raised by the demurrer of Hubbard is, whether he, as mortgagee of Lanman, by virtue of a mortgage, anterior to all the proceedings detailed in the petition, was entitled to notice of them, or can be foreclosed of his rights, unless he pays the sum demanded, inasmuch as it is conceded, that no notice was ever given to him.

The sections of the charter, to which reference has been made, do not, in terms, direct that notice of the preliminary proceedings should be given to anybody, but an order of the court of common council directed notice to Lanman, the mortgag'or, as the proprietor of the land and buildings, in front of which the improvements were made. -

A mortgagee, out of possession, is not the proprietor of the mortgaged premises, and, in common parlance, is never spoken of as such, nor is he so recognized, in a legal sense. To be sure, he is said to have the legal title, and as against the mortgagor, and for the purpose of enforcing his rights, as mortgagee, he has such title. He can convey no beneficial interest in the land mortgaged, as separate and distinct from the debt; and he has no such interest in it as can be levied upon, and taken in execution, by his creditors. Although, in this state, we have holden, that, in a strictly legal sense, the mortgagee has a bare title, even after payment of the debt, if the law day had expired before, until a release deed is executed; yet this is rather a matter of policy, arising from our recording system, than from any other view of it. In truth, the mortgagee has only a lien, and can not be considered or treated as a proprietor or owner of the mortgaged estate.

This view is corroborated by analogous cases. In laying out new highways, either by selectmen or by the county courts, or in repairing old ones, no provision is made by law, for notice to be given to mortgagees, nor, in practice, is this ever done. The interests of mortgagees are not regarded in these proceedings; they are necessarily connected with the interests of the mortgagor, and, in this respect, subject to them. However reasonable we may believe it to be, that a mortgagee should, by a timely notice, have an opportunity of protecting his rights, which the mortgagor has neglected, yet, as neither the charter of the city nor any other law has provided for this, we can not require it, without the exercise of powers which we do not possess. It is sufficient, in order to create and enforce this lien, that the city has done everything required of it, by the charter and the law.

The result is, that the judgment of the superior court is erroneous and must be reversed.

In this opinion, the other judges concurred, except Waite, J., who tried the cause in the court below, and was disqualified.

Judgment reversed.