text:
    EMILY J. SMITH, Respondent, v. JEREMIAH B. ROGERS, Appellant.

      Executory contract for the sale of land — when it is terminated by a conveyance of the fee of the land, to a stranger, by the vendor.

    This action was brought by the plaintiff to recover money paid by her to the defendant under an executory contract for the purchase of land owned by him, upon the ground that after she had made several payments, and at a time when she was not in default, the defendant had sold and conveyed the premises to one Hill, who had knowledge of the existence of the contract of sale.

      Held, that the defendant by conveying the fee of the land to Hill terminated the contract, and that as the plaintiff had up to that time, in all respects, performed the agreement on her part, she was at liberty to bring this action to recover the money so paid.
    That it was not necessary that she should offer to pay the balance of the purchase-money and demand a deed of the premises, as the defendant had put it out of his power to perform the contract on his part.
    That she was not prevented from bringing this action by the fact that Hill knew of the contract at the time he took the deed, and that the plaintiff might have enforced a specific performance of the contract against him.
    Appeal from a judgment in favor of the plaintiff, entered in Cayuga county upon the report of a referee.
    The action was brought to recover the purchase-money paid by the plaintiff as vendee to the defendant as vendor, on an executory contract for the sale of real estate. The vendor was the owner in fee of the premises at the time the contract of sale was executed and delivered.
    The vendee paid part of the purchase-price, as stipulated in the agreement, and after making several payments and not being in default on her part, the vendor sold and deeded the premises to one Hill, who was advised of the existence of the contract of sale. The plaintiff recovered on the trial before a referee the amount of the moneys she had paid to the vendor, up to the time the latter deeded the premises to Hill.

      Chester cfe Elliott, for the appellant.

      A. Z. Johnson, for the respondent.
   Barker, J.:

I am of the opinion that the judgment entered upon the report of the learned referee should be affirmed, upon the ground that the defendant repudiated the agreement on his part by selling and conveying the premises to Hill on the 29th day of December, 1884. At that time the plaintiff was not in default. The contract contained a provision expressed in these words: And in case default is made, as aforesaid, then, and in that case, the vendee releases and discharges the vendor from all liability by reason of any payment made prior to such default.”

The first question presented is, whether the vendor had been released from his covenant at the time he conveyed the premises to Hill, by reason of any default on the part of the vendee to make the payments of principal and interest in the sums and at the times stipulated in the agreement. By the terms of the contract, interest upon the unpaid principal was'to be paid semi-annually, on the thirteenth of March and the thirteenth of September, and of the principal sum ten dollars was to be paid each month from and after the 3d of July, 1883. The contract also contains the further provision, that unless all payments are made at the time of making the semi-annual indorsement, as provided for in the contract, then the vendee agreed to surrender up all claims and possession of said premises, and waives all notice to quit the same, and agreed to quietly and peaceably remove therefrom, on verbal notice so to do, and the contract should then become null and void.

The referee found that the vendee paid the interest due on the principal sum up to and including the 13th day of March, 1884. And he also finds that she paid other sums of money, giving the dates and amounts, which were received by the defendant upon the contract. He has not found, specifically, that the vendee had, up to the time of making the conveyance to Hill, made all the payments which had fallen due prior to that, but the evidence would fairly justify a finding that she had done so. If all the payments of money that were in fact made by the vendee to the vendor, were applied upon the contract, then she was ahead in her payments at that time.

For the purpose of sustaining the judgment we are to assume that the referee did find that all these payments were made upon the contract; and that no part of the same were left unapplied so that the vendor was at liberty to apply the same upon the items which he claimed were extra work and constituted an independent item of indebtedness. As I figured the amount due on the 29th day of December, 1884, the principal and interest could not exceed $293. There were seventeen monthly installments due up to that time, and in all amounting to $170. Call the interest $123, which was something above the amount due on an accurate computation, the gross sum paid by the vendee up to that time was $388.

As the plaintiff was not in default at the time the vendor conveyed the premises to Hill, we are now to inquire whether, upon the other facts appearing in the case, she was entitled to recover the money -svliich she had advanced upon the contract. The sendee’s position is this: That the act of the defendant, in conveying the premises to Hill when she was not in default, amounted to a rescission of the contract on his part, and that she had a right of action for the purpose of recovering back the purchase-money which she had paid in upon the agreement, and that, under the circumstances presented by the case, it was not necessary for her to offer to perform the contract on her part, or to require performance by the vendor, but that she could, immediately upon the execution and delivery of the deed, treat the contract as at an end.

The principal covenant ou tlie part of the vendor was to sell and convey to the vendee, by a good and sufficient deed of conveyance, free and clear from all incumbrance, the premises mentioned, for the sum of $400, the deed to be delivered to the vendee when she had paid one-lialf of the purchase-money and concurrently therewith. The latter agreed to give her bond for the payment of the balance of the purchase-money, secured by a mortgage on the premises conditioned to pay such balance in annnal payments of $100, together with interest. There was an agreement on the part of the vendor to erect upon the lot a house, at a cost not exceeding $800, which was to be regarded as a part of the purchase-money, thus increasing the consideration money to the sum of $1,200.

In every executory contract for the sale of lands there is an implied warranty on the part of the vendor that he has a good title to the premises which he assumes to sell, unless such warranty is expressly excluded by the terms of the contract, and such implied warranty exists so long as the contract remains unexecuted. (Burwell v. Jackson, 5 Seld., 535.) In that case the court, in its opinion, remarked: “ In respect to such agreements, the principles upon which the doctrine of implied warranty rests, are still applied as well in England as in this country, with all their force. It has been repeatedly held in England that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title knowing its defects; and these decisions have been made without any regard to the particular language of the agreement to purchase. They rest upon the principle of implied warranty of title, and can have no other basis.” (Citing Purvis v. Rayer, 9 Price, 488; Souter v. Drake, 5 Barn. & Adol., 992.) In the latter case Chief Justice Denman said: “For the reason above given, we come to the conclusion that, unless there be a stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaking to make out the lessor’s title to demise, as well as that of the vendor to the lease itself, which implied undertaking is available at law as well as in equity.”

In this case the vendor’s covenant was affirmative and positive, and in terms agreed to sell and convey the premises by a good and sufficient deed of conveyance, free and clear from all incumbrances. Under this covenant there can be no doubt but what the law implies a warranty on the part of the vendor that he possessed, at the time of making the same, a good and perfect title, and that he would convey the same to the vendee, upon the observance by her of the covenant on her part.

The legal proposition laid down in Burwell v. Jackson (supra), arose upon this state of facts: The vendors agreed to execute, or caused to be made and executed, to the vendee, on a day named, by a good and sufficient deed of conveyance, the lands mentioned in the agreement. The vendee was to pay a part of the purchase-money upon a particular day, when the deed was to be delivered. Prior to that time he had given his note to the vendors for a part of the purchase-money. At the time that the contract of sale was made, the premises were incumbered by a mortgage, which was afterwards foreclosed, and the title became vested in a stranger. In an action upon the note it was held that the sale and conveyance in the foreclosure proceedings put it out of the power of the vendors to convey any title to the purchaser, and authorized the vendee to treat the contract as rescinded; that as the title of the vendor was lost to him, the vendee was not bound to offer to perform on his part, or to require a performance from his vendor, but might at once treat the contract as at an end; and the court further said that the vendee had an immediate cause as against the vendors to recover back the money paid.

Lawrence v. Taylor (5 Hill, 107) is also in point, which was an .action by the vendee to recover back the purchase-money paid upon an executory contract for the sale of lands, wherein the vendor .agreed to convey the premises by a deed containing a covenant of warranty. The vendee was allowed to recover the moneys paid in on the contract, on proving that the vendor had no title to a part of the lands, the court holding that it was sufficient to prove that there was no title or a defective one in the seller. The recent case of James v. Burchell (82 N. Y., 108) affirms the general propositions of law which have been stated. In that case the vendor agreed to sell and convey, or caused to be conveyed, the premises described in the executory agreement, and for the sum of $11,000, and on the performance by the vendee of covenants on his part to deliver a deed containing a covenant of warranty and that the premises were free and clear from all incumbrances. At the time the contract was entered into the vendor was the owner of the premises in fee, and on the same day he conveyed the land to a third party. The vendee failed to perform any part of his agreement, and the' action was brought against him upon the contract to recover damages for its non-performance, and it was held that the vendor, by such conveyance, violated the contract, and the defendant was thereby released from any liability under it. (See, also, Judson v. Wass, 11 Johns., 525; Higgins v. The D. L. and W. R. Co., 60 N. Y., 553; Eddy v. Davis, 23 Week. Digest, 168; Buttrick v. Holden, 8 Cush., 233.)

There is a class of cases which hold that where the vendee is in default, and has failed to perform the contract according to its terms, the vendor may sell the premises and the vendee cannot recover back the purchase-money, but they have no application to the case in hand, for the reason that the plaintiff was not in default at the time the defendant conveyed the premises to Hill. (Battle v. The Rochester City Bank, 5 Barb., 414; Ketchum v. Everston, 13 Johns., 359; Green v. Green, 9 Cow., 16.)

These cases are placed upon the ground that the vendee had refused to proceed to the ultimate conclusion of his agreement, and the vendor being ready and willing to perform and fulfill all his stipulations according to the contract, the latter was under no obligations, legal or equitable, to return the money which he had received under the contract of sale.

It was not necessary for the plaintiff to offer to pay the balance of the purchase-money and to demand a deed of the premises, for the reason that the latter, by conveying the premises to another, had put it out of his power to perform the agreement on his part. (Buttrick v. Holden, 8 Cushing, 233; Newcomb v. Brackett, 16 Mass., 161.) Nor does the fact that Hill knew of the contract between these parties, at the time he took a deed, change the rule, although the plaintiff might have enforced a specific performance of the contract against him and compelled a conveyance. (James v. Burchett, 82 N. Y., 113.)

The position of the defendant that the plaintiff cannot recover in this action for the reason that she remains in possession of the premises, does not seem to be well taken upon the evidence and facts and circumstances of the case. At the time of the conveyance to Hill the plaintiff was in possession of the premises through and by her tenant, but the evidence tends to show, and would justify a conclusion, that the tenant had attorned to Hill; when this action was commenced, he claiming the right to receive, and did receive, the rents which fell due after he received the deed. Hill testified, and the defendant did not seek to contradict his testimony, that he had received the rents from the tenant, and that he had possession of the property since the date of his deed. In support of the judgment we are to assume that the referee found that the plaintiff had ceased to have any control over the premises, and that the tenant had attorned to Hill who had acquired possession of the property.

It is unnecessary to refer to a class of cases where the vendor, by the terms of his agreement, agreed to acquire in the future the title to lands and to convey them on a particular day to the vendee, as the principle involved in such cases is not applicable to the question involved in this controversy. Under such an agreement the vendee necessarily relies upon the personal covenants of the vendor, and the nature of the agreement excludes the idea that the vendor had a present title to the property which is made the subject of the sale.

I think tbe judgment should be affirmed upon tbe ground that the defendant, by conveying the fee of the land to Hill, terminated the agreement, and as the plaintiff had up to that time in all respects performed the agreement on her part she was at liberty to regard the contract as at an end, and in law and equity she was entitled to repayment of the moneys which she had advanced on the agreement.

Judgment should be affirmed, with costs. ■

Haight, J., concurred; Smith, P. J., and Bradley, J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Barker, J.:

license: Public Domain

text:
    JAMES SILVEY, Plaintiff, v. WILLIAM W. LINDSAY and Others, Defendants.

      Residence — when acquired, by an inmate of the Soldiers and Sailors’ Some at Bath.

    In 1880 the plaintiff, a discharged soldier, who was then a resident of the city of New York, was admitted as an inmate into the institution known as the “ New York State Soldiers and Sailors’ Home,” located in the town of Bath. He was not a pensioner under the laws of the United States, and was supported at the home wholly at public expense. In becoming an inmate of the institution he intended to change his residence from the city of New York to the town of Bath, and to make his residence in said institution so long as he should he permitted to remain there as an inmate.

      Held, that he acquired a residence in the town of Bath which authorized him to vote at an annual town meeting held in that town.

      Quaere, as to whether the Soldiers and Sailors’ Home was an “asylum” within the meaning of that term, as used in section 3 of article 2 of the Constitution, which declares that “for the purpose of voting no person shall be deemed to have gained or lost a residence, by reason of his presence or absence * * * while a student of any seminary of learning, nor while kept at any alms-house or other asylum at public expense.”
    Case submitted under an agreed state of facts, under section 1279 of the Code.
    In 1886, tbe plaintiff was an inmate of tbe “New York State Soldiers and Sailors’ Home,” located in the town of Bath, in the county of Steuben, organized and maintained under the provisions of chapter 48 of the Laws of 1878. The defendants were justices of the peace of said town and presided at the annual town meeting held for that year. The plaintiff, claiming to be a resident of the town, offered liis vote to the town officers, which was rejected by the defendants, upon the sole ground that he was not a resident of the town. The case states that the defendants willfully and maliciously refused to receive the plaintiff’s vote, with full knowledge of all the facts set forth in the case bearing upon the plaintiff’s right to vote. It was stipulated that if it should be held by the court that the plaintiff was a qualified voter at that election then the plaintiff’s damages were fifty dollars, for which sum he was entitled to judgment.

      Miller (& Nichols, for the plaintiff.

      J. F. Parkhurst, for the defendants.
   Barker, J.:

The legal question submitted for our determination is stated in the case as follows: Did James Silvey gain a residence in the town of Bath, so as to entitle him to vote at a town meeting, by reason of his presence as an inmate of said institution ?

The admitted facts upon which the plaintiff based his right to vote as a qualified elector of the town of Bath, are that he was a soldier in the service of the United States during the late rebellion and was entitled to admission as an inmate into the institution known as the “New York State Soldiers and Sailors’ Home,” located in the town of Bath, as provided in chapter 48 of the Laws of 1878, and the rules and regulations adopted by the board of trustees having the control of the said institution. At the time he became an inmate of the home, in the year 1880, he was a resident of the city of New York, where he was a qualified elector. Since he became an inmate of the asylum he has resided therein continuously, and during all that time voted at every State election and town meeting held in the town of Bath up to the time his vote was rejected by the defendants. It does not appear from the case that the plaintiff was ever married, or that he was at any time a householder, or engaged or interested in any business. He was not a pensioner under the laws of the United States, and was supported at the home wholly at public expense. As to his intention to change his place of residence from the city of New York to the town of Bath, the fact is stated in the case in these words: “ In becoming an inmate of said institution, said Silvey intended to change his residence from the city of New York to the fifth election district of the town of Bath, and to make his residence in said institution so long as he should be permitted to remain there as such inmate.” At the polls, and upon oath, he stated to the defendants, as follows: “ I reside in the town of Bath, for the reason that I was admitted an inmate of the New York Soldiers and Sailors’ Home, in this town, by the authorities thereof, in the year 1880, and have remained such inmate from that time to the present, with the intention, at all times, of making my residence in said institution, so long as I shall be permitted to remain such inmate. At the time of my admission to said institution I was an honorably discharged soldier of the United States, and a resident and voter of the city of New York. I therefore answer that I am a resident of the town of Bath. Inbecoming an inmate of said institution, I intended to change my residence from the city of New York to the fifth election district of the town of Bath.” It was stipulated that every statement of fact made by the plaintiff, as contained in his evidence, was true.

It thus appears that the plaintiff, on entering the institution, abandoned his residence in the city of New York, and intended to make the town of Bath his future residence, permanently or for an indefinite period of time. He thus became a resident of the latter place, and a qualified elector therein, unless by reason of some positive law, constitutional or statutory, he was disqualified from becoming a resident of that town, by reason of being an inmate in that institution, maintained at public expense. He voluntarily, for the purpose of securing to himself more of the comforts of life, accepted the benefactions gratuitously offered by the State to discharged soldiers in need of a home, in consequence of physical disability or other cause. Thereafter that institution was his house, his home, his fireside, his bed, his board. He had no family with which to reside or support, and had no business relations elsewhere. Nothing remained with which he was connected in the least degree in the city of New York indicating that he remained a resident there.

The qualification of voters at all general elections held in the State are defined by the Constitution, as follows: Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days and an inhabitant of this State one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere.” (Article 2, § 1.) To become a legal voter at the town meeting, the same qualifications are required, and none other. (R. S. [7th ed.], 808, § 1.)

The only restraint or regulation placed upon a citizen in changing his place of residence .from one place to another, within the State, is contained in article 2, section 3 of the Constitution, which declares: “ For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his 'presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this State, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any alms-house, or other asylum, at public expense; nor while confined in any public prison.”

The defendants contend that while the plaintiff was an inmate of the Soldiers and Sailors’ Home, and supported at public expense, he was prohibited from acquiring and could not gain a residence in the town of Bath. It may be conceded, in disposing of this case, that this institution is an asylum of the class and character of those referred to in this paragraph of the Constitution. But we do not hold that it is, and many reasons maybe given why it should not be so considered.

A student in college, a soldier in the United States service and a voluntary inmate of a charitable institution, the recipient of a public gratuity, may change his place of residence like any other citizen, by doing those things which the laws requires of all persons who intend to change their residence from one place to another within the State. The clause of the Constitution quoted contains no prohibitory provisions.

It simply declares that for the purpose of voting no person shall be deemed to have gained a residence by reason of his presence in a particular place, while a student of any seminary of learning or in the other cases mentioned therein. But a person who is a student in a college may change his residence from place to place while in attendance ujion the college just the same as any other citizen. These views have been maintained and expressed by the law department of the State relative to the status of the inmates of this institution and their qualifications as voters in the town of Bath.

The defendants also contend that as the plaintiff only intended to reside in the town of Bath so long as he should remain an inmate in the soldier’s home, he could not gain a residence by the rules of the common law. As he intended to abandon his former place of residence he could acquire one in the town of Bath if his purpose was to remain there for a period of time, although indefinite as to its duration. He was a citizen of the State, under no disqualifications prohibiting him from becoming a resident of any place which he might determine upon. It was not necessary that he should have had the fixed purpose of residing permanently in the town of Bath. A citizen of the State must, of necessity, have at all times a place of residence therein. It may be for a long or short period of time in any particular place. For the purpose of securing the right to vote in any particular town his residence therein must be for the length of time required by the election law. But he becomes a resident of the place the instant he arrives within the limits of a town with the intention of making it his future home and residence permanently or for an indefinite length of time. A place of residence in the common law acceptation of the term means a fixed and permanent abode and dwelling place for the time being as contradistinguished from mere temporal local residence. The fact is. admitted that the plaintiff had determined to remain in the town of Bath for an indefinite time. By the American authorities a residence may be acquired in a particular place where it is the intention of the person to remain therein for an indefinite period of time. It is not necessary that he should have the purpose to remain there permanently, that is to say, never to remove therefrom. There must be both the fact of the abode and the intention of remaining indefinitely to constitute a domicile or a residence. (Hegeman v. Fox, 31 Barb., 475; In the Matter of Wrigley, 8 Wend., 141; Chaine v. Wilson, 1 Bos., 673; Dupuy v. Wurtz, 53 N. Y., 556.)

In Massachusetts the courts have repeatedly held that where there is an intention on the part of a citizen of that State to abandon his then present place of residence, and then remove to another town with an intention to remain there for an indefinite length of time, he becomes a resident of the latter place. (Commonwealth v. Cushing, 99 Mass., 592; Whitney v. Sherborn, 12 Allen, 111; Mead v. Roxborough, 11 Cush., 362; Carnoe v. Freetown, 9 Gray, 357; Harvard College v. Gore, 5 Pick., 379.) Webster defines a resident to he one who resides or dwells in a place for some time, and a residence as being the place where one resides; an abode; a dwelling; a habitation.

It is clear to my mind that the plaintiff was, witbin tbe sense and meaning of tbe election laws, a resident of tbe town of Bath. He had no residence elsewhere. It is not to be supposed that tbe legislature intended to deprive tbe inmates of that institution of any of tbe privileges of citizenship. A person may be an inmate of that institution and maintain his residence elsewhere, and I suppose there are many such instances. A person may become an inmate of this institution with an expectation on his part to remain, as long as his wants and means require, and have a family and a residence elsewhere.

The plaintiff is entitled to a judgment for fifty dollars damages, with costs, as agreed upon in the case submitted.

.Smith, P. J., Haight and Bradley, JJ., concurred.

Judgment ordered for tbe plaintiff for fifty dollars damages, with costs.


text:
    THE THIRD NATIONAL BANK OF BUFFALO, Plaintiff, v. ITTAI J. ELLIOTT, as Sheriff of Allegany County, Defendant.

      Levy upon property under an attachment — right of the sheriff to deny the defendants title to the property in an action for a false return brought by the plaintiff in the attachment suit — -when a, sale of the property of an insolvent company wil\ be held void.

    In an action, brought against the Gibhs & Sterritt Manufacturing Company, an attachment was issued and delivered to a deputy sheriff, who, at the request of the plaintiff’s attorney, seized and levied upon certain property which had, prior to that time, been levied upon by the sheriff under attachments issued in other actions brought against the firm of Humphrey & Aspinwal. The deputy thereafter made the customary inventory and filed a return in the clerk’s office. Thereafter, under executions issued upon judgmeuts recovered in the aforesaid actions brought against the firm of Humphrey & Aspinwal, and an exeeution issued upon a judgment subsequently recovered by the plaintiff in his action against the Gibbs & Sterritt Manufacturing Company, the sheriff sold the property attached, as directed in the executions, and applied the proceeds upon the judgments recovered against the firm of Humphrey <& Aspinwal, returning the plaintiff’s execution nulla bona.

    Upon the trial of this action, brought by the plaintiff to recover the moneys which he alleged the defendant, as sheriff, had collected on its execution, it appeared that the property was, prior to November 14, 1882, owned by the said^mannfacturing company, and in the possession of the said firm, as its agents for selling its goods, each of the partners being a trustee of the company; that on that day the property was sold to the said firm, and remained thereafter in its possession until levied upon by the sheriff.

      Held, that the fact that the deputy sheriff had seized certain items of property, as property owned by the defendant in the attachment suit, and had made and filed a return, did not estop the sheriff from showing, when sued for making a false return, that the property attached belonged to a third person; that it did, however, cast upon him the burden of proving that the property did not belong to the defendant.
    That in this case the sheriff had failed to establish the fact that the property did not belong to the Gibbs & Sterritt Manufacturing Company; that the court properly held the sale of November 14, 1882, to be void as a matter of law, as it was shown that the sale was made at a time when the company was insolvent, by the members of its executive committee to two of its own trustees, who had knowledge of the insolvency of the company, and received the property in payment of a debt much less in amount than the value of the property.
    Motion by the defendant for a new trial, founded upon a case containing exceptions, ordered at the Allegany Circuit to be heard at the General Term in the first instance.
    The action was brought to recover moneys which the plaintiff in its complaint alleges that the defendant, as sheriff, collected on an execution in its favor against the Gibbs & Sterritt Manufacturing Company. The execution, was returned nulla bona by the sheriff and filed in the proper clerk’s office. Several attachments against the property of Humphrey & Aspinwal were delivered to the defendant, as sheriff, and he seized thereon certain items of personal property, taking an inventory of the same and making and filing the customary return. Thereafter the plaintiff procured an attachment against the property of the Gibbs & Sterritt Manufacturing Company and delivered it to one of the defendant’s deputies, who, at the request of its attorney, did seize and levy upon a portion of its property which the sheriff had theretofore levied upon, as the property of Humphrey & Aspinwal, and the deputy made the customary inventory and filed a return to the attachment in the proper clerk’s office. In the actions against Humphre}’’ & Aspinwal judgments were entered and executions were issued thereon, and on one of them, in favor of the Ban]r of Randolph, as early as the 7th day of May, 1883, for the sum of $10,680.49, and other executions, in amount greater than the value of the property attached, were delivered to the sheriff before the 25th day of June, 1883. On the 23d June, 1883, this plaintiff recovered a judgment in its suit against the Sterritt & Gibbs Manufacturing Company for the sum of $7,933.60, and on the 25th day of June, 1883, issued an execution thereon and delivered it to this defendant, as sheriff, with the customary directions, to satisfy the same out of the property attached, by virtue of the warrant attached.
    On the 5th day of July following the sheriff sold all the property attached, on the executions issued upon the judgments against Humphrey & Aspinwal, and the sum realized was less than the aggregate amount of such judgments, and thereupon returned the execution on the plaintiff’s judgment against the manufacturing company nulla lona. The items of property levied upon, by virtue of the attachments in the plaintiff’s favor, sold for the sum of $3,159.69, for which amount, with $235.35 interest, the court directed a verdict in the plaintiff’s favor. The property, prior to the,14th day of November, 1882, was owned by the said manufacturing company, on which day, by an assignment in writing in due form, it sold all its interest in the same to Humphrey & Aspinwal, in whose possession the same was at the time of the sale, and it remained in their possession up to the time that the same was seized by the sheriff on attachments issued against them. At the close of all the evidence the defendant requested to go to the jury, upon all the facts of the case, claiming that the title to the property was in Humphrey & Aspinwal, and that the avails of the sale were properly applied upon the execution against those parties. This request was denied, and the defendant excepted. The court thereupon directed a verdict in the plaintiff’s favor, to which the defendant also excepted.

      Lewis & Moot, for the plaintiff.

      Henderson & Wentworth, for the defendant.
   Barker, J.:

The sheriff sought on the trial to prove the truth of his return nulla bona, to the execution issued on the judgment in the plaintiff’s favor, by attempting to prove that the property levied upon under the attachment in the plaintiff’s favor, against the Gibbs & Sterritt Manufacturing Company, was not the property of that company liable to be seized upon attachment or execution against it, but that it was, in fact, the property of Humphrey & Aspinwal, the defendants named in the several attachments and executions which he had received prior, in point of time, to the attachment which he received from the plaintiff against the said manufacturing company. The execution issued upon the plaintiff’s judgment is in strict compliance with the provisions of section 108, Code of Civil Procedure, and properly contains a specific direction requiring the sheriff to satisfy the judgment out of the personal property of the judgment-debtor, which he had theretofore attached by virtue of a warrant of attachment issued in such action. The sheriff was not authorized, by virtue of this process, to levy upon and sell any other property claimed to be owned by the judgment-debtor. If the property attached under the attachment issued in the plaintiff’s action was not the property of the defendant therein, then the plaintiff has not suffered any damage by reason of the failure of the sheriff to sell and convert such property into money, to be applied upon the plaintiff’s judgment, and the sheiiff’s return nulla bona was not false, but true, and constituted a perfect defense. The plaintiff’s position is not a tenable one. His contention is this, that as the sheriff seized certain items of property as property owned by the defendant in the attachment suit, and had made and filed a return in due form of law, stating therein that he had attached the property, and an inventory had been taken thereof as the property of the defendant, the return is, in this action, conclusive evidence against the sheriff, and he is estopped from setting up title to the property in a third person. In support of his argument, the learned counsel for the plaintiff cites the familiar rule that as against the sheriff, and those claiming in privity with him, his return is conclusive as to his own acts, stated therein, and the same is conclusive evidence in favor of parties who claim an interest or right under the return, and that-the sheriff and his deputies are precluded from contradicting it. (Sheldon v. Payne, 7 N. Y., 453; Armstrong v. Garrow, 6 Cow., 465.) This rule of evidence is not as broad in its application as claimed by the counsel for the plaintiff.

It has its limitations, and applies only to the acts of the officer, which he, in his return, states he has done and performed in his official capacity. So far as the return before us states that the sheriff had levied on certain articles of personal property, under and in pursuance of the process in his hands and upon which the return was indorsed, the same is conclusive, as evidence in this action, and he is estopped from denying that he did those things. His own acts, to which he refers and makes a statement are confined to the seizure of the property mentioned, and that the same was done in pursuance of the process. But, upon the question now litigated, as to who is the owner of the property seized, the return was not conclusive evidence in the plaintiff’s favor that the defendant in the attachment suit was the owner. When an officer makes return to a process placed in his hands and files the same in the proper clerk’s office, it becomes a record of the mode and manner in which such process was executed by the officer, and so long as it remains of record it is conclusive upon the officer as to his own acts under and by virtue of the process. The sheriff can always defend his return nulla bona to an execution placed in his hands, by proving the fact that the defendant, in the execution, has no property out of which the same could be made. If he levies on property, as the property of the defendant, and then makes a return of no goods found, then, in an action by the plaintiff for making a false return the burden of proof is cast upon him, and he must establish, as a matter of fact, that the property levied upon was not the property of the defendant, thus maintaining the truth of his return. If the defendant in the execution is not the owner of the property seized, and such property has been levied upon by mistake on the part of the sheriff, he beeómes liable to the true owner for all damages hedías sustained, and it would be a harsh and unjust law which would hold the sheriff liable to the plaintiff for the value of tlie property levied upon in addition to his liability to the true owner. In this case the sheriff having, by his deputy, seized property as belonging to the defendant, by virtue of the attachment, the burden of proof was cast upon him to establish that such property did not belong to the defendant. (Magne v. Seymour, 5 Wend., 309.) He may justify a return nulla bona to an execution issued upon a judgment after he has levied on the property under the preliminary process of attachment, issued in tlie action before judgment. This precise question was up and directly passed upon in Lummis v. Kasson (13 Barb., 373), where all the essential facts of the case are parallel to those in this case. The question received a most careful consideration by Mr. Justice Smith, whose opinion was concurred in by both of his learned associates and has been followed in subsequent cases. (Dolson v. Saxton, 11 Hun, 565; Cromwell v. Gallup, 17 id., 61.)

In Paige v. Willet (38 N. Y., 28), it is held that after levy under an execution the sheriff may prove, as a defense in an action for making a false return, that the goods levied upon were exempt from levy and sale under the statute. (See, also, Wehle v. Connor, 69 N. Y., 516.) Therefore, if the evidence tended to prove that the property, at the time it was attached, was owned by Humphrey 6 Aspinwal,- the order of the trial judge, directing a verdict in the plaintiff’s favor, cannot be upheld.

As has been already said, the plaintiff made out a prim,a facie case, and the sheriff, to defeat a recovery, attempted to prove that the title to the property was in Humphrey & Aspinwal. If, upon the undisputed facts, their title to the property fails, then the defense must fail. The sheriff has allied himself with their title and sets it up as a justification! of his return of nulla bona. As the legal questions involved are the same as if the plaintiff’s attachment had been delivered to the sheriff before he had made a Levy upon the property by virtue of the attachments then in his hands, it is like a case where the sheriff has in his hands several attachments against different parties, and the plaintiff in one of the attachments points out to the sheriff property and requires him to seize it as the property of the defendant in his attachment, and the plaintiff in the other attachment directs him to seize it as the property of the defendant in his action. The sheriff, in such a case, must act at his peril.

Tlie Gibbs & Sterritt Manufacturing Company was a Pennsylvania corporation. The powers conferred upon it by the laws of that State and the mode and manner in which they should be exercised were not disclosed upon the trial. It was doing an extensive business in the manufacture of goods and machinery and by one of its by-laws, the president, vice president, secretary and treasurer constituted the executive committee, and they, oT a majority of them, were authorized to conduct the current business of the company. Humphrey & Aspinwal, were merchants doing business in the county of Allegany, in this State, and were the duly appointed agents of the company for the sale of their goods in that locality. Both of them were trustees of the corporation. In November, 1882, they had in their possession, as such agents and for sale, the goods mentioned and other property of the same character of the then estimated value of about $10,000. They were to receive a commission on sales made and it was the course of business adopted for them to remit to the company the cash proceeds of sales made, and to forward all notes and other paper received in lieu of cash, keeping an account on their own books of all business transactions. At this time, Humphrey & Aspinwal claimed that they had made certain advances to the company in a sum not definitely ascertained, but there was no claim made that it would exceed the sum of $900. Their commissions were not fully ascertained at that time, but it was admitted that they had in their hands, belonging to their principal, moneys equal to, if not in excess of all, unpaid commissions. At the time of the sale and transfer of the property by the company to Humphrey & Aspinwal, the former was in a condition of great financial embarrassment, a fact well known to the executive officers of the company and also to Humphrey & Aspinwal. On the day the bill of sale was made out there was a meeting of the board of trustees which was attended by Humphrey & Aspinwal, and all the members of the executive committee. At that meeting a motion was made by Mr. Aspinwal, that the executive committee notify the creditors of the company to meet them, on the thirtieth of that month, for the purpose of considering the financial condition of the company and the same was carried. Early in December proceedings were instituted in the courts of the State of Pennsylvania for the purpose of having the company declared insolvent and to wind up its affairs.

After considering all the evidence with attention, we are of the opinion that, at the time of the sale to Humphrey & Aspinwal, the company was insolvent, and that the fact was well known to them. Mr. Aspinwal was called as a witness by the defendant and seems to admit, without hesitation, that he knew of the financial condition of the company, and that his firm paid nothing to the company at the time of the sale and transfer of the property to them. It was conceded on the trial that the value of the property was at least $15,000. The bill of sale was executed by the president and treasurer, to which was attached the corporate seal of the company and was witnessed by its secretary, and that instrument recites that the consideration upon which the transfer was made was “ the partial payment of company’s indebtedness, and the sum of one dollar to it in hand paid at and before the delivery of the contract.” The instrument contained a covenant in these words: “ And the Gibbs & Stenitt Manufacturing Company do hereby covenant to, and with the parties of the second part, that it is the owner and has the right to sell and transfer the said property, and that the same is free and clear of all incumbrances and liens, and it hereby covenants to forever warrant and defend the sale hereby made.”

Nothing was proved upon the trial tending to show, nor was it claimed by the defendants, that this instrument was intended as a mere security for any indebtedness which the company might owe the purchasers, or that, as between the parties, it was not intended to pass an absolute and indefeasible title to the property. In the face of the fact that the company was insolvent, and that the sale was made by the executive committee to two of the trustees of the company, we think that the transaction was correctly held to be void, as a matter of law, as against the creditors of the corporation. Conceding that it was intended to discharge a bona fide indebtedness of $900, owing by the purchasers to the company, it was, nevertheless, enormously below its actual value. The law pronounces the action of the executive committee as fraudulent and void, and no question was made for the consideration of the jury. While the corporation remained solvent and able to go on with its business in the usual and customary way, the trustees held the property in trust for the benefit of the shareholders. The instant the company became insolvent and unable to pay its debts the trustees then held the property in trust primarily for its creditors,'and they were without power to deal with, the property between themselves for the purpose of paying off their own indebtedness against the company in preference to and in exclusion of other creditors. As trustees, holding the property in trust, they could not sell the property to themselves or any one of their number. The fact that the trustees were dealing with themselves concerning trust property, made the transaction fraudulent in law and void as against the creditors of the company. It would be in. vain for Humphrey & Aspinwal, on the evidence, to attempt to sustain the transaction in a court of justice. The defendant is not in a situation, in this litigation with the plaintiff, to make any better title than they could. (Koehler v. Iron Company, 2 Black, 715 ; Drury v. Cross, 7 Wall. 299; Hoyle v. Railroad Company, 54 N. Y., 314; Cumberland Coal Co. v. Sherman, 30 Barb., 553; Cook v. Berlin Woolen Mills, 43 Wis., 433 ; Corbett v. Woodward, 5 Saw. C. C. Rep., 403 ; 22 Central Law Jour., 199; Bennett v. Austin, 81 N. Y., 308.)

The right of the plaintiff to a verdict in this case depended upon the fact alleged by the plaintiff, that the return to the execution was false. The form of the action as set forth in the complaint was for not paying over certain moneys alleged to-have been collected by the sheriff upon the execution. But we think there was not such a variance between the proofs and the pleadings as to require this court to set aside the verdict, as the question of fact litigated was-the one upon which the ultimate rights of the parties must depend.

The defendant took several exceptions to the reception of evidence given on the trial by the plaintiff. Such evidence was not necessary for the purpose of making out a prima facie case against the defendant, nor was it received until after the defendant had rested. As the defendant’s proof failed to make out a case meeting the plaintiff’s prima facie case, so as to require the evidence to be submitted tó the consideration of the jury, he is not entitled to a new trial, although some of the evidence received over the defendant’s objection was not competent. As the case was left to stand at the close of the proof he was without any defense.

It is unnecessary to make any reference to the assignment which Humphrey & Aspinwal made of the goods for the benefit of their creditors, for the defendant claims that that transaction was fraudulent and void as against their creditors, and the plaintiff claims that they had no title whatever to transfer.

Motion for a new trial denied, and judgment ordered for the plaintiff upon the verdict.

Smith, P. J., and Bradley, J., concurred; Haight, J., not sitting.

Motion for new trial denied; and judgment ordered for the plaintiff on the verdict.


text:
    GEORGE BELLMAN, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Liability of a railroad for injuries to a passenger — when it is responsible for injuries resulting from, acts done undm' the direction of its conductor.

    A military organization, whose headquarters were at Rochester, having agreed to give a public entertainment at the village oí Brockport, one of its members engaged of the defendant, a railroad, company, passage for all the members from Rochester to Brockport and return. The members were carried to Brockport in a separate car, which was, after they had left it, run upon a side track, to the west of and beyond the station grounds, so that the west end of the car rested upon a bridge upon which the railroad crossed, at a height of twelve feet, a village street. Before ten o’clock in the evening the car was lighted and the doors unlocked, although no person representing the company was left in charge of it. The car could be seen from the hotel where the members of the organization were staying.
    At about the time at which the freight train to which this car was to he attached was due at Brockport, most of the members of the organization, including the plaintiff,'had passed from the platform of the station, across and along the tracks, and had taken their seats in the car. After the freight train had arrived and stopped, its conductor opened the door of the car and said: “Boys come out and give us a shove; shove this car on to the main trade so I can hitch on.” The plaintiff; with others, arose, went, to the door, and seeing the freight train moving on his right-hand side, and fearing to alight on that side, stepped off the steps on the other side and fell through or over the side of the bridge to the street below.
    CJpon the trial of this action, brought by the plaintiff to recover damages for the injuries so sustained, the plaintiff recovered a verdict, which was, on motion, set aside for the reason that when the plaintiff boarded the car it was outside of the station grounds, and there was not sufficient evidence to justify the jury in finding an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it.

      Held, error; that the plaintiff’s right to recover did not depend upon these facts, hut that the question was whether at the time he received the injury the conductor had taken charge of the car and the plaintiff, as a passenger, had placed himself under his care.
    Appeal from an order of the Monroe Special Term, granting the defendant’s motion for a new trial on a case containing exceptions. The action was tried at the Monroe Circuit, and the plaintiff recovered a verdict of $2,000.

      Raines Bros., for the appellant.

      Edward Harris, for the respondent.
   Barker, J.:

The plaintiff, in alighting from one of the defendant’s passenger cars, fell through the openings in a bridge over a highway, upon which the ear was standing, and received severe injuries to his person. He claims that at the time he was a passenger on the defendant’s road and rightfully in the car, and that the injuries which he received were caused by the negligence and carelessness of the conductor in charge of the car. The evidence bearing on the questions of fact, which the plaintiff was required under the pleadings to maintain, is undisputed. If from the proofs the jury were justified in reaching the conclusion that the conductor was guilty of negligence which- caused the accident, and the plaintiff himself was not guilty of contributory negligence, then I think the verdict should be sustained, as I am unable to discover any error in the rulings of the learned trial judge, of which the defendant has reason to complain.

The facts may be briefly stated. The village of Brockport is about twenty miles west of Rochester, and the line of the defendant’s road passes through both places. The plaintiff resides in Rochester, and is a member of a military organization, whose headquarters were in that city, where most of the other members also reside. This company had arranged to give a public entertainment in Brockport. Their numbers were sufficient to fill one ordinary passenger car. One of the members, Mr. Yost, acting as committeeman for all, engaged of the defendant passage for all the members of tiie company, from Rochester to Brockport and return. The fare paid Was the regular fare for each member of the company, and before leaving Rochester the same was paid and a return ticket was delivered to Mr. Yost for each member of the company, including the plaintiff. A car was assigned by the company, in which they were carried to Brockport in the forenoon of the day on which the exhibition was to be given. On arriving in Brock-port the car was detached from the train and run upon a switch. After the exhibition was over the members of the company were carried back to Rochester in the same car, which wras attached to a passing freight train which left Brockport after midnight. At the latter place there is a depot with the usual safe and convenient accommodations, with waiting-rooms for passengers, and is located about 230 feet east of Main street, over which the railroad crosses on a bridge, some twelve feet high. In front of the depot the main track passes, some twelve feet from the platform. To the south of the main track, and seven feet therefrom, there is a side track which crosses the bridge west of tlie‘depot and intersects with the main track. In the morning, after the members of the company left the car, it was switched upon the side track and run to the west of the depot, so that the west end of the ear, for some three or four feet of its length, rested upon the trestle of the bridge. There were openings in the bridge at or near the end of the car, and no guards in that section- of the south side of the bridge, and the outer space of the car was very near, if it did not overlap, the side of the bridge. The members of the company were guests at a hotel on Main street, north of the bridge and near the depot, and the exhibition was given by them in a room in the village south of the bridge and the railroad tracks. As early as ten o’clock in the evening the car was lighted and the doors unlocked, without any person on the part of the railroad company being present and in charge of the same. The depot building was lighted, the waiting-rooms opened, and the telegrajih office was open and the operator present. It was arranged by the railroad company that the military company should return to Rochester that evening in the same passenger car, attached to a freight train, which passed Brockport soon after the exhibition was over. The car could be seen, and that it was lighted could also be observed by persons passing along the street and under the bridge, as well as irom the hotel where the plaintiff and his companions were guests. On their way to the hotel, and while there, the plaintiff and others observed the location of the car, and that it was lighted. About the time the train was due, most of the members, if not all of the company, including the plaintiff, passed from the hotel on to the platform of the depot and across and up the tracks to the car, and took seats therein. The train was an hour late in arriving at the depot, and stopped in front of the same, so that the rear car was about opposite of the place where the passenger car stood. At this time the plaintiff was seated near the west end of the passenger car. The conductor of the freight train came to the west end of the passenger car, which rested upon the bridge, opened the door and said, so as to be heard by the plaintiff and others: “ Boys, come out and give us a shove; shove this car on to the main track, so I can hitch on.” The plaintiff immediately arose from his seat and went to the door and, as he testified, saw the freight train moving on his right hand side, and fearing he might be hurt if he got off on that side of the car, he stepped down the steps on the other side, and, as he stepped off, he went through or over the side of the bridge, and fell a distance of some twelve feet. The car was moved to the switch and attached to the train.

On the question whether the plaintiff and his companions were permitted by the defendant to occupy the car, while it stood upon the switch before the arrival of the freight train, Mr. Yost, the committeeman for the company, testified as follows : “ That when I contracted for the transportation it was arranged that the car was to lay there" (at Broekport) for us and as soon as we were ready to move we were to take the car ; Smith (the agent for the company) said, if I remember right, that the car was at our service, and he would telegraph to the baggageman, or whoever had charge of the car there at Broekport, to hitch us unto the first train that would bring us back to Rochester; he said that there would be a man there who would tell us whenever we were ready to return, or we should report ourselves to the authority there; that he did notify the agent at the depot that they were ready to move.”

The defendant did not give any evidence upon the trial, except as to the nature and extent of the plaintiff’s injuries. I think, from this evidence, the jury were justified in finding that the conductor was guilty of improper conduct and negligence which caused the plaintiff’s injuries, and that he was free from any contributory negligence.

The evidence fairly established, and such was the opinion of the trial judge and he so instructed the jury, that the passenger car, as it stood upon the side track, was outside of the depot grounds. The legal questions presented will be examined as if such was the fact. In determining whether the verdict should stand or not, it may be assumed that the relation of carrier and passenger did not exist at the time the conductor came to the passenger car and took the control and management of the same. But the moment he ordered the car to be moved, I think it may be reasonably and fairly held, as matter of law, that the relation of carrier and passenger was resumed, as the company intended to carry the persons holding tickets back to Rochester in that car. The conductor made no request that the car be vacated by the passengers, and no objection was made to their remaining in their seats while the car was being moved so that it could be attached to the train.

The plaintiff became a passenger as soon as he came to the depot building for the purpose of being carried to his home in Rochester, for which place he had a ticket, and was entitled to the care and protection which the law requires carriers of persons to bestow upon their patrons. The question is not whether the plaintiff took a seat in the car with or without the consent of the defendant. But the inquiry is, whether, at the time he received his injury, the conductor had taken charge of the ear, and the plaintiff, as a passenger, had placed himself under his care. If the plaintiff had received injuries while passing from the depot building to the car, or while in the car before the conductor assumed control of the car, a very different question would be presented.

The conductor in ordering the car to be moved acted as the agent of the railroad company, and the plaintiff did not terminate the relation of carrier and passenger by attempting to assist the conductor as requested. It was the duty of the conductor to know the condition of the place where he asked the passengers to alight, and if it was not safe and secure for them to do so, to inform them of the fact. The evidence tended to, if it did not conclusively establisli, the defendant’s negligence. It was clearly a question for the jury to say whether the plaintiff himself was guilty of any negligence or carelessness which contributed to the. injuries which he received. He was invited by the defendant’s agent to leave the car at the place where he did, and it cannot be said that his action was altogether voluntary. Passengers on board of cars are largely under the direction and control of the conductor, and it is his duty to exercise the greatest care and caution in providing for their safety. (Hickey v. Railroad Company, 14 Allen, 429; Sweeny v. Railroad Company, 10 id., 368; Hulbert v. N. Y. C. R. Co., 40 N. Y., 145.)

An examination of the exceptions fails to disclose any error of which the defendant can complain. The learned trial judge granted a new trial, as appears by his opinion printed in the case, for the reason, that when the plaintiff boarded the car it was outside of the depot grounds, and there was not sufficient evidence to justify the jury in reaching the conclusion that there was. an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it, and that the plaintiff took all the hazard of his conduct in occupying the car before he was invited to do so by the company. As already stated, I do not think the plaintiff’s right of recovery is made to depend upon that question.

The order appealed from reversed and a new trial denied, with costs.

Smith, P. J., Haight and Beaduev, JJ., concurred.

Order reversed and motion for new trial denied.


author: BARKER, J.:

text:
    In the Matter of the Application of PETER B. LAIRD and ROBERT W. LAIRD, Creditors of ASHBEL H. ARNOLD, Deceased, for the Sale of Real Estate in Payment of his Debts, Respondents, v. RUSSELL G. ARNOLD, as Administrator, BELLE K. ARNOLD and Others, Appellants.

      Proceedings for the sale of the real estate of a decedent to pay his debts — what allegations the petition should contain when, made by a creditor — the cost of a tombstone is to be treated as part of the funeral expenses — costs cannot be allowed by the surrogate until the proceeds of the sale have been paid to the county treasurer.

    On February -16, 1880, these proceedings were instituted by the petitioners to procure an order for the sale of the real estate, owned by one .Arnold at the time of his death, for the payment of the petitioners’ claim, which was the price of a tombstone or monument sold by them to the administrator of Arnold, in his representative capacity, and erected in memory of the deceased.

      Held, that as the petition was made by a' creditor," and' as it stated the facts required by chapter 460 of 1837, as 'amended by chapter 172 of 1843, and chapter 298 of 1847, it was sufficient; that it was not necessary to set forth therein the facts required by section 3 of chapter 6 of title 4 of part 2 of the Revised Statutes, as that section only applied when the proceedings were instituted by the executor or administrator of the estate.
    That the administrator having purchased -the monument in his representative capacity, the debt thus created should b.e regarded as part of the funeral expenses and a charge upon the estate of the decedent.

      Dalrymple v. Arnold (21 Hun, 110); Laird v. Arnold (25 id., 4) followed.
    The order made in this case directed that out qf the proceeds,of- sale the petitioners should be allowed their costs and expenses, which were adjusted at $209.38. . ...............-......

      Held, that the surrogate had no power to consider and determine the question as to whether costs should be awarded to the petitioners, a¿id to fix their amount, prior to the time of the deposit of the proceeds of the sale with the county treasurer and the making of the decree of distribution.
    Appeal from an order of the Surrogate’s Court for the county of Livingston, directing the sale of the real estate owned by Ashbel H. Arnold at the time of his death for the payment of his debts.
    The said order also provided that out of the avails of such sale the petitioners be allowed their costs and expenses of the proceeding, which were adjusted at $209.38. The petitioners’ claim amounted to $443. It was the price of a tombstone or monument sold by them to the administrator and erected in memory of the deceased. His estate was valued at from $10,000 to $15,000. He left him surviving two children, of which the administrator, Russell Gr. Arnold, is one. The administrator appeared and resisted the claim upon several grounds, one being this: that he did not purchase the monument in his representative character, and that the same was not to be paid for out of the assets of the estate. At the request .of the contestants two of the questions put in issue by their answers were ordered to be tried before a jury of the county of Livingston, which, by its verdict, found that the petitioners did sell to the administrator, in his representative capacity, a monument, and erected the same in memory of the deceased, and that the price agreed upon was $442, to be paid for when erected-. These proceedings were commenced by the filing of the petition on the 16th day of February, 1880.
    From the order as entered the administrator and the other .contestants appeal.

      Daggett da Norton, for the appellants.

      Bingham c& Joslyn, for the respondents.
   BARKER, J.:

The contestants object that the surrogate failed to acquire jurisdiction of the subject-matter because the petition is defective, for the reason it does not set forth the facts required by section 3, chapter 6, title 4 of the second part of the Revised Statutes. That section is applicable only when proceedings for the sale of the real estate of the decedent are instituted by the executor or administrator of his estate. When* a creditor applies for a sale of the lands for the same purpose the creditor, in framing his petition, must comply with chapter 460, Laws of 1837, as the same was amended by chapter 172, Laws of 1843, and chapter 298 of the Laws of 1847 (3 R. S. [5th ed.], 196, § 59), which requires the petitioner to set forth in his petition that the executor or administrator has rendered an account to the surrogate and accounted for all the assets which came to his hands, and that the same are insufficient to pay the debts of the deceased. The petition avers all the facts necessary to be in full compliance with the requirements of the statute, and the surrogate acquired jurisdiction over tbe proceedings. ( Wood v. McChesney, 40 Barb., 417.)

Tbe administrator having purchased the monument in his representative capacity, the debt thus created should be regarded as part of the funeral expenses and it becomes a charge on the estate of the decedent. That such was the character of the indebtedness has been heretofore determined by this court, and we adhere to the conclusions then reached. (Dalrymple v. Arnold, 21 Hun, 110; Laird v. Arnold, 25 Hun, 4.)

These decisions were made upon the authority of Patterson v. Patterson (59 N. Y., 574). In that case it was stated that the funeral expenses of a deceased person will not be treated as a debt against the estate, but as a charge upon the same, of the same nature and character as the necessary expenses of administration. After the controversy in that case was brought before the courts, and before a final decision was reached, chapter 267 of the Laws of 1874 was passed, which is decisive on the question in controversy. It is there declared that “the word debts” in said title (referring to tit. 4, chap. 6 of the second part of the Revised Statutes) “ shall be construed as including funeral expenses, except that the charges for funeral expenses shall be a preferred debt, and be paid out of the proceeds of such sale before the general distribution to creditors shall be made.” The provisions of the Revised Statutes referred to in this act gives to creditors the right to petition the Surrogate’s Court for the sale of the real estate of & deceased person, for the payment of their debts. It will be observed that no distinction is made in the statute between debts created for funeral expenses and those created by the decedent in his lifetime. We, therefore, must hold, as the learned surrogate held, and for the reason stated in his written opinion, that the petitioners were entitled to an order directing a sale of the real estate for the purpose of paying the debt due the petitioners.

The cost of the monument or tombstone seems to have been reasonable in amount, in view of the value of the estate owned by the deceased, and the extent of his indebtedness at the time of his death. The fact that the administrator, who was one of the contestants, inherited one-half of the estate, and assented to the erection of the monument over the grave of his father, at a cost which met Ms approval, is a further reason why we are of the opinion that the expense of the same was not unreasonable.

So much of the decree as purports to dispose of the question of the costs of the proceedings is not reviewable on this appeal. The expenses of the proceedings are to be paid out of the avails of the sale, whether the costs be taxed under the provisions of the Revised Statute or by the similar provision contained in the Code of Civil Procedure. All the avails of the sale must be brought into court and distributed under an order thereafter to be made. The question of costs is not up upon this appeal. (In the Matter of John G. Lamberson, 63 Barb., 297.)

The appellants have sought to present the point, that other proceedings for the sale of the real estate of the decedent, for the payment of his debts, having been commenced by other parties, and then pending, for these reasons insist that the application of these creditors should have been denied, as they had an opportunity to prove their debt in the proceedings pending when they filed their petition. It appears by the record, that upon the return of the order for the administrator to show cause, he, by his counsel, moved that the proceedings be dismissed, for the reason, as stated in the record, “that proceedings for the sale of the real estate of said deceased, for the payment of his debts, have been commenced by other parties, and are now pending, and therefore these proceedings should be dismissed, and the petitioners prove their debt, if they have any, in these proceedings.” After a careful search through the records, I am unable to find any proof that other proceedings were pending of the nature and character of those mentioned. It does not anywhere appear that the surrogate ruled that such matter would not be a defense to these proceedings, if the fact existed. 'The allegation to that effect in the answer of the contestants should not be taken as true, although not denied by the petitioner by replying to the answer.

So much of the order as awards costs to the petitioner, and fixes the amount thereof, should be stricken therefrom, as the surrogate had no power to consider and determine that question prior to the depositing of the proceeds of the sale with the county treasurer and the making of the decree of distribution. (In the Matter of Lamberson, 63 Barb., 297; Code of Civ. Pro., § 2786, 2563, 3317, sub. 11.)

The Matter of Mace (4 Redf., 325) is an authority for holding the question of costs is discretionary with the surrogate, and if allowed to the petitioner should be taxed under the provisions of the Code, although the petition was filed and the proceedings initiated prior to September 1, 1880'. The oi’der of modification should state specifically that the question of costs is reserved uutil the order of distribution.

The order as amended is affirmed, with cost of this appeal to be paid out of proceeds of sale.

Smith, P. J., and Beadley, J., concurred; Haight, J., not sitting.

Order modified by striking out the provision allowing and taxing costs to the petitioner as premature, and as so modified affirmed, with costs of this appeal to be paid out of the proceeds of the estate.


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    ISAAC WILLETTS and Others, Appellants, v. RUFUS M. BROWN and Others, Respondents.

      Lien on personal property — what agreement to give security will he enforced by courts of equity — who should be made defendants in an action to foreclose it.

    The plaintiffs, who were the owners of and had the right to operate and mine for oil on certain premises and to receive as a royalty the orie-eighth of the oil produced on another parcel, after entering into possession of the first-named parcel and digging five oil wells thereon, which produced a considerable quantity of oil, entered into an agreement, under seal, by which they sold and transferred all their interest in the said property, and in the machinery, apparatus and the royalty before mentioned, to the defendant Kervin, who agreed to pay therefor the sum of $32,000. Thereafter Kervin entered into possession of the premises and operated the wells, but neglected to pay the amount due to the plaintiffs. The contract contained a provision, immediately following Kervin’s promise to pay the purchase-price, that “ all rigs, tanks, boilers, engines, tubing and casing now upon said land, or hereafter put upqn the same, shall remain upon the same, as part and parcel of the said premises, until all payments shall be made and completed herein; ” and, also, the following provision: “ It is further agreed, by and between the parties hereto, that in case of failure on the part of said Kervin to make the payments herein at the time they shall, respectively, fall due for the period of ten days, then, after such failure to meet such payment, all oil produced upon the said premises shall thereafter he run into the lines to the credit of Isaac Willett (one of the plaintiffs) as a security for such payment.”

      Held, that as the vendors were owners of the fee of the lands, their interest in the wells, and all the machinery used in operating the same, must he regarded as personal property, as between the parties to this action, by force of chapter 372 of 1883.
    That the plaintiffs had an equitable lien upon the property and the oil produced until the entire purchase-price was paid.
    That, notwithstanding the omission from the agreement of any provision prescribing the form and manner in which the security was to be given, and regarding the contract as a mere executory promise to give a lien, such a promise would be regarded by courts of equity as creating an equitable lien which would be enforced, as against the .party promising to give the lien and those who claimed under him, who were not innocent purchasers.
    That the fact that the defendant Kervin had abandoned the premises, and that the plaintiffs had regained possession of the same and were engaged in operating the wells and receiving the product of oil and the avails thereof, did not prevent them from instituting this action to foreclose their lien, but furnished an additional reason for them to do so, as it would enable them to render an account whereby the amount of the unpaid purchase-money might be determined.
    That one to whom the defendant Kervin had made a general assignment for the benefit of his creditors, and other persons claiming some interest in the property subsequent and subordinate to the lien of the plaintiff, were properly made parties defendant.
    Appeal from a judgment, entered in Allegany county, after a trial bad before referee, dismissing the plaintiffs’ complaint as to the defendants Rufus M. Brown, Robert M. Wall, Charles H. Levins and Samuel N. Reid, who are the respondents.
    These defendants and Thomas Kervin appeared and answered, denying many of the material facts upon which the plaintiffs’ cause of action is based, and setting up matters in defense, which, if true, would defeat a recovery as to all the defendants. The issues were all referred to a referee to hear and take proofs of the allegations in the complaint and to compute the amount due and owing on the contract described in the plaintiffs’ complaint, and to report the same to the court. No case was made setting forth the proceedings on the hearing before the referee, but he states, in his report, that on motion of the counsel for all the defendants who answered, except Thomas Kervin, the plaintiffs’ complaint was dismissed as to such defendants and each of them, on the ground that the same did not state facts sufficient to constitute a cause of action against such defendants or either of them, with costs, which were taxed and entered in the judgment at $143.77. No trial was had on issues between the plaintiffs and the defendant Kervin, and they remain untried. The case was submitted on printed brief.

      Hamilton Ward, for the appellants.

      A. L. Elliott, for the respondents.
   BARKER, J.:

As the complaint was dismissed on the defendants’ motion before any proofs were offered or any statement made of the facts which the plaintiffs intended to prove in support of his cause of action, it must be determined by the allegations contained in the complaint whether the same was properly dismissed, for it is to be presumed that the plaintiffs could sustain, by competent evidence, the facts therein set forth. A perfect cause of action was stated against the defendant Kervin, entitling the plaintiffs to the recovery of a personal judgment against him, for a large sum of money and for the other relief which was demanded in the complaint. The complaint states, in substance, that the plaintiffs, Isaac Willetts and William Cranston, were the owners of and had the right to operate and mine for oil, on certain premises which are specifically described, and as to another parcel they were entitled to one-eiglith of the oil which might be produced thereon by other parties as a royalty to be paid to them. They were in possession of the first named parcel, and had drilled five oil wells thereon, which were productive, and which had produced a considerable quantity of oil. There was connected therewith, and used in developing the property, engines, derricks, pumps, drills and tanks for storing oil, such as are commonly used in that business. By an instrument, under seal, which is set forth in the complaint, the plaintiffs sold and transferred all their interest in the said property, together with the said machinery and apparatus, and in the royalty, before mentioned, to the defendant, Thomas Kervin, who agreed to pay therefor $32,000, and the complaint alleges that at the time of the commencement of the action there was due and unpaid on said contract $7,000. It is also alleged that Kervin entered into the possession of the premises, operated the wells and produced a large quantity of oil. It is also averred that the other plaintiff, Leonard Willets, acquired an interest by purchase in the contract of bargain and sale prior to the commencement of this action. The plaintiffs also claim that by virtue of the contract they have a lien upon all the property which was the subject of the sale and the oil which has been produced, or which may be produced, as a security for the unpaid purchase-money, and seek in this action to enforce such lien, and for a personal judgment against Kervin for any deficiency that may exist after a sale. In the contract immediately following Kervin’s promise to pay the purchase-price, there is a provision that, “ all rigs, tanks, boilers, engines, tubing and casing now upon said land, or hereafter put upon the same, shall remain upon the same, as part and parcel of the said premises, until all payments shall be made and completed herein,” and the concluding paragraph of the agreement is as follows: It is further agreed, by and between the parties hereto, that in case of 'failure on the part of said Kervin to make the payments herein at the time they shall respectively fall due, for the period of ten days, then after such failure to meet such payment, all oil produced upon the said premises shall thereafter be run into the lines to the credit of Isaac Willets, as a security for such payments.” At the time of the sale there was some oil in store in the tanks on the premises, and the contract also contains this clause: “ All the oil produced upon the above premises shall be the property of the said Kervin, or if any be sold the avails thereof shall belong to him.” It is manifest, when taken in connection with the averments of the complaint, that the last-mentioned term of the contract, just quoted, was intended to be a sale of the oil in store at the time of the making of the agreement. We are inclined to the opinion, and in disposing of this appeal we shall view the contract as a sale in presentí, and vesting the title of all the property in the vendee.

The respondents’ position is, that as against Kervin the plaintiffs had no lien upon the property, and could only recover a personal judgment against him, and for that reason they were unnecessary parties, and there could be no advantage secured to the plaintiffs by retaining them as parties defendant to the action, pending the trial of the issues between them and Kervin. In our consideration of this question we have reached the contrary conclusion, and think that the plaintiffs have an equitable lien upon the property and the oil produced until the entire purchase-price is paid. As the vendors were the owners of the fee of the land, their interest in the wells, and all the machinery used in operating the same, must be regarded as personal property, as between the parties to this action, by force of chapter 372 of the Laws of 1883, which provides: “ All oil wells and all fixtures connected therewith, situate on lands leased for oil purposes, and oil interests and rights held under and by virtue of ally lease, or contract, or other right or license to operate for or produce petroleum oil, shall be deemed personal property, for all purposes except taxation.”

As to a lien arising from the express contract of the parties, the general rule, as stated by one of the elementary writers, is: “ That every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or ' identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands, not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or incumbrancers with notice.” (3 Pomeroy’s Eq. Juris., § 1235.)

The promise of the vendee was to give a security upon the oil produced, and the form and manner in which the same was to be perfected, so as to give the vendor some written evidence of their lien, was not provided for in the agreement. But, notwithstanding this omission, and regarding the contract as a mere execu-’ tory promise to give a lien, courts of equity regard such a promise as creating an equitable lien which will be enforced as against the party promising to give the lien and those who claim under him who are not innocent purchasers. (Pomeroy’s Eq. Jurisprudence, 373, § 1237.)

In this State the general rule, as stated, has been applied in particular cases so as to carry out and consummate, in an effective manner, the real intension of the parties, as stipulated in their agreement.

In Husted v. Ingraham (75 N. Y., 251) the plaintiff sold and delivered a quantity of carpeting to their vendees, which were put down in their hotel, with the understanding that the purchasers should secure the purchase-price to the vendors by a chattel mortgage. The purchasers’ notes were received without exacting a chattel mortgage upon the carpets, and, thereafter, a receiver was appointed of the property of the purchasers, and he claimed a title to the carpets. In commenting upon the rights of the parties, the court said: “ The carpets having been delivered under an agreement that the price should be secured by a mortgage thereon, that agreement could have been specifically enforced in equity and constituted an equitable lien upon the property as against J. E. Miller & Co. (the purchaser), and all persons claiming through or under them, except bona fide purchasers having no notice of the lien.”

In Hale v. Omaha National Bank (49 N. Y., 626), the lessees of a hotel property agreed, in writing, in one of the clauses of the lease, to give their vendors a lien to secure the payment of rent, upon all the furniture which they should place in the hotel. The defendant seized the property and converted the same to his own use without any claim or color of title. The court, in holding that the plaintiff had an equitable lien upon the property, said that the parties evidently contemplated some further and other act or deed, to complete and perfect the security, but, notwithstanding the failure to do so, the lessors had a right, as soon as the lessees placed the. furniture in the hotel, and they could have required of them security in proper form upon the property, and had they refused, upon request, to give the lien agreed upon, a specific performance would have been decreed, and the court would have seized hold of the executory promise and regard that as done which the parties had promised to do, and thus secure to the lessor a perfect and effective lien, as stipulated in the agreement. (See, also, Flagg v. Mann, 2 Sumn., 487; Chase v. Peck, 21 N. Y., 581; Gilson v. Gilson, 2 Allen, 115 ; Peckham v. Haddock, 36 Ill., 38; Chadwick v. Clapp, 69 id., 119.)

As to the other items of property we think, on reading all the provisions of the agreement, that it was the intent and purpose of the parties to give the vendors a lien thereon for the purpose of securing the unpaid purchase-money, and the clause which provides that the same should remain upon the premises and as a part and parcel of the same until all the payments should be made and completed, was inserted for the purpose of securing that end. The form or particular nature of the agreement which will be sufficient to create a lien is not very material, for equity looks to the final intent and purpose of the parties rather than at the form, and if the intent appeared to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property js so described that the principal things intended to be given or charged can be sufficiently identified the lien follows. (Pomeroy’s Eq. Juris., § 1237 and the cases cited in the foot notes.)

The fact, as alleged in the complaint, that Kervin had abandoned the premises and the plaintiffs had regained possession of the same and are engaged in operating the wells and receiving the product of oil and the avails thereof, is no bar to his maintaining an action to foreclose this lien, and is an additional reason why they should institute foreclosure proceedings and render an account of the avails of the property so that the true amount of the unpaid purchase-money may be ascertained.

The defendant Reid is the general assignee of Kervin, and for that reason he is a proper party defendant. As to the other defendants the complaint avers that they have or claim some interest in the property subsequent and subordinate to the lien of the plaintiff, and in their answers they set up a lien upon the property and claim that the plaintiffs’ debt has been fully paid and satisfied. The plaintiffs having a lien on the property as against their vendee, in an action to foreclose the same, there can be no doubt whatever but that the defendants named were proper parties in this action. (Fowler v. Mutual Life Ins. Co., 28 Hun., 198; Brown v. Volkening, 64 N. Y. 76.)

The judgment should be reversed, new trial granted, with costs to abide the event.

Smith, P. J., Haight and Beadley, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event.