author: CBbieh, J. Haight,

text:
    Sarah Matilda Mygatt et al., as Trustees, etc. Resp’ts, v. George S. Coe, App’lt.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Appeal—Stare decisis.
    The court of appeals will not review decisions made hy it on former appeals of the same case, though arguments, based upon reason and justice,, are presented.
    2. Deed—Covenants—Privity oe estate.
    Privity of estate is essential to carry covenants of warranty and quiet enjoyment to subsequent grantees, in order to support a right of action hy them against the original covenantor, when there is an eviction by paramount title.
    3. Same—Possession oe land.
    Legal possession of land, though the lowest interest or title that a person can have, is an estate therein, capable of being conveyed, and, when conveyed, creates a sufficient privity of estate between grantor and grantee to carry the covenants of warranty and quiet enjoyment through successive conveyances to a remote grantee.
    4. Same—Presumption as to possession.
    "Where husband and wife are living on her premises, she is presumed to have the legal,possession exclusive of thehusband’s possession, unless there-is something to show the contrary.
    5. Same.
    In order to give him legal possession of her premises, the wife, by some act or agreement on her part, express or implied, must surrender to him some interest in the property or dominion over it which necessarily takes from her at least some right or incident ordinarily pertaining to the absolute ownership of real estate,
    6. Same.
    The legal possession of land, which is sufficient to carry the covenants upon the conveyance, must he a right or interest in the nature of property, valid at all events against all extraneous intrusion and capable of the same kind of transfer and devolution as other property.
    7. Same—Proof as to husband’s possession.
    Where a husband and wife live on her land, and he does such acts merely as grow out of the marital relation and which must exist in every case where he lives with her in her home on her land, such facts are insufficient to show that he has any legal possession of her premises which can support his covenants of warranty and quiet enjoyment in a deed of the premises, made by his wife and himself as grantors.

      8. Same—Heirs and assigns.
    It is immaterial that a covenant, which is in fact personal and does not run with the land, is to the grantee, “ her heirs and assigns.”
    9. Same—Grantor’s lack op title.
    In an action against a husband for breach of covenant of quiet enjoyment contained in a deed of his wife’s land, executed by them, the fact that she had then no title is immaterial in determining the nature and character of his covenants.
    10. Same—Evidence.
    In such aciion, the husband may be asked, as a witness, whether or not he received any part of the Consideration paid for and named in the deed, where the issue is as to his possession of the premises.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiffs entered upon the decision of the court on trial at circuit.

      Joseph H. Choate, for app’lt; Edward M. Grout, for resp’ts.

      Affirming 64 St. Rep. 877.

   CBbieh, J.

— The persistence of the parties to this litigation and the nature of the questions involved brings it here for the third time for review. The facts and the law involved in the controversy have been so fully spread .upon the records of the court on former appeals, first in the second division and subsequently here, that they are all quite familiar and require but a very brief statement. Mygatt v. Coe, 124 N. Y. 212 ; 35 St. Rep. 289 ; s. c., 142 N. Y. 78 ; 58 St. Rep. 408. The action was to recover damages for an alleged breach of the covenants of warranty and quiet enjoyment contained in a deed of certain real estate in Brooklyn, made on the 12th of April, 1867, by the defendant’s wife, since deceased, to Nancy Fisher, and in which the defendant joined. It contained the usual covenants of warranty and for quiet enjoyment and was so drawn as to appear to be the acts of both husband and wife. About two years afterwards, the grantee, Mrs. Fisher, mortgaged the premises to the plaintiffs to secure the payment of a loan of $15,000. This mortgage was subsequently foreclosed and plaintiffs took the deed upon the sale, and it is conceded that there was an eviction, there being no dispute about the fact that neither the defendant nor his wife had any title to the property at the time of the conveyance. The deed, however, was given in good faith, in the belief on their part that the title was good.

The defendant’s wife, Almira S. Coe, purchased the property July 15, 1858, for a valuable consideration, and took the deed in her own name from a party then in possession, as she supposed, under good title. She immediately went into possession, and, with her husband, lived in the house until the conveyance to Nancy Fisher, who also went into possession, and conveyed the same, subject to plaintiff’s mortgage, and her remote grantee, one Leavitt, was ejected by a judgment of the court, November 30, 1878, which adjudged that at the time of the deed of defendant and his wife to Mrs. Fisher, title paramount was in the heirs of one Howell. The case had always involved in it a narrow question of law, depending on a narrow question of fact, and the difficulty has been, first, to determine the nature and character of the proofs necessary to establish the fact, and then to apply the law to a ease resting upon some peculiar features.

There is no question about the fact that as to Mrs. Coe, the defendant’s wife, the covenants were broken. The sole question is in regard to the liability of the defendant, her husband, also, since he joined in and made himself a party to the deed. The deed which Mrs. Coe supposed gave her good title, and under which she went into possession, ran to her alone, and under the habendum clause she was to have and to hold the estate granted for her sole and separate use, the same as if she was unmarried, free from all control or power of disposition in her husband. When she conveyed the estate so held by her the husband, as we have seen, joined in the deed, and the question, in its broadest sense, is whether this subjects him to liability by reason of the failure of the title which his wife assumed and covenanted that she had and could convey. If this was a mere personal covenant only, running to the immediate grantee, and enforceable by him alone, and not a covenant that attached to and ran with the land, passing by the successive deeds to the plaintiffs with the land, then it is admitted that the action cannot be maintained, since it is not claimed that the plaintiffs have any assignment of it, otherwise than through their deed. It must be regarded as the law of this case that privity of estate is essential to carry covenants of warranty and quiet enjoyment to subsequent grantees in order to support a right of action by them against the original covenantor, when there is an eviction by paramount title. It was so held by a majority of the Second Division when the case was there, and we fglt constrained, when the case was here, to follow that doctrine. 142 N. Y. 82 ; 58 St. Rep. 408. The origin of that rule, the reasons upon which it rests and its force as a recognized legal principle, are all elaborately discussed in the opinions on the former appeals, and it can serve no useful purpose to resume the discussion. The dissenting ■opinion of Judge Bradley, who spoke for the minority on the first appeal, is a clear and forcible argument in support of the view that any covenant made by a stranger to the title, but for the benefit of the land, which relates to the estate and tends to enhance its value, attaches to the land as a part of the estate and passes by the grant. The distinction between personal covenants in deeds and those which run with the land was made at a time when, by the common law, choses in action were not assignable, and this circumstance doubtless was an element in the process of reasoning through which the rule was established. Since choses in action are now assignable it may well be doubted whether the reason of the rule still exists in all its force. ■ When a person, who is a stranger to the title, consents to become a party to the conveyance for the benefit of the land and in order to enhance the value of the estate conveyed, it is not difficult to suggest arguments based upon reason and justice for holding him to his stipulation in favor ■of a remote as well as an immediate grantee. But the law for this case, at least, seems to be settled otherwise, and doubtless according- to the weight of authority, so that, in the language of Judge Finch, when the case was here before, “Reserving freedom of thought and action, when the case becomes a precedent only, we must here and now, in the same action, between the same parties, accept without criticism what has been decided.” Another point has also been settled upon the former appeals, and that is, that legal possession of land, though the lowest interest or title that a person can have, is an estate therein, capable of being conveyed, and when conveyed creates a sufficient privity of estate between grantor and grantee to carry the covenants of warranty and quiet enjoyment through successive conveyances to a remote grantee. 142 N. Y. 78 ; 58 St. Rep. 408. The trial court has found as a fact that the defendant was in possession at the time of the conveyance, and the case is thus narrowed to the inquiry whether that finding is supported by evidence.

There is really no evidence from which that fact could have been found unless such acts as grow out of the marital relations, and which must exist in every case where a husband lives with his wife in her house or upon her land, are to be deemed sufficient. It was shown that the defendant lived in the house with his family ; that he paid while there some small bills for repairs ; that on one occasion the taxes on the property and the defendant’s personal taxes were paid in one payment, but by whom did not appear. The defendant denied that he had any right to or interest in the property of any kind whatever. If it is to be held that upon this state of facts the defendant had the legal possession of the property, and so an estate in it, that result must follow in every case where husband and wife live together on the wife’s real estate. The presumption is that the legal possession follows the ownership of the land. Hence, it was necessary to show that the wife, by some act or agreement on her part, express or implied, had surrendered to the husband some interest in the property or dominion over it which necessarily took from her at least some right or incident, ordinarily pertaining to the absolute ownership of real estate. The husband could acquire no estate capable of sale or conveyance, not even the lowest known to the law, without abridging to the same extent that of the wife. Whatever interest he gained she must have lost. The legal possession of land which is sufficient to carry the covenants upon a conveyance must be a right or interest in the nature of property, valid, at all events, against all extraneous intrusion and capable of the same kind of transfer and devolution as other property. It is difficult to conceive how two persons can have such a possession of the same thing at the same time. The wife in this case certainly acquired such a possession upon the conveyance to her, and there was no evidence to warrant the conclusion that she had in any way transferred it to the husband. Stantley v. The Nat. Union Bank, 115 N. Y. 124. 23 St. Rep. 966; Third National Bank v. Guenther, 123 N. Y.. 569 ; 34 St. Rep. 478; Bunker v. Rand, 19 Wis. 254; Swift v. Agnes, 33 id. 230; Redfield v. U. & S. R. R. Co., 25 Barb. 54: Beddoe's Exrs. v. Wadsworth, 21 Wend. 124.

All that was decided in the case of Alexander v. Hard, 64 N. Y. 228, was that certain facts were shown which were competent to submit to the jury on the question whether the wife had in fact put the husband in possession. They were stated by the court in the opinion as follows:

“It appeared in evidence that the plaintiff had built the house on his wife’s farm ; that he moved his family into it, consisting of his wife and several children, and had lived there with his family for six years; during which time he testified, without objection,, that he had been in possession of the house and had control of it. It further appeared that he operated the farm in his own name, owned the stock upon it, cultivated it and provided for his family.

“We think from these facts that the jury might well have inferred that his wife had put him in possession of the farm and consented to his building upon and occupying and cultivating it in his own name and on his own account, for the support of himself and the family.”

It is scarcely necessary to say that there was no evidence in this-case of such a character. So, we think, that there was no evidence to sustain a finding of any such possession in the husband as to carry to the plaintiffs the covenants of warranty and quiet enjoyment.

There is another question in the case which may arise upon a new trial and should, therefore,■ be noticed. The defendant was a witness in his own behalf and his counsel propounded to him the question whether he had received any part of the consideration expressed in the deed which contained the covenant, and if so what part ? This question was objected to by the plaintiffs’ counsel on the ground that the consideration is expressed in the deed. The court sustained the objection and the defendant’s counsel excepted.

This question was not admissible to vary or contradict the term or legal effect of the deed or the covenants, or on the question of damages. Whatever answer was given it could not affect the validity of the deed or the legal effect of the covenant. It would still remain his deed and his covenant, supported by a sufficient consideration, and binding upon him according to its nature and legal effect. The question, and the only question, was whether the covenant ran with the land, and that turned upon the vital issue of -possession in the defendant at the time it was-made, an independent fact not at all governed by the terms of the conveyance. This issue the court determined in favor of the plaintiffs, and the exclusion of any material or competent evidence offered by the defendant on that issue must be regarded as error. We think the question was competent since it had or might have-had some bearing upon the issue of possession. The plaintiffs had the right to show and did show all the acts and dealings of the defendant in regard to the property, and it is just as clear that the defendant could explain or contradict such testimony. It would have been competent for either party on such an issue-to show that the defendant received the rents and profits of the property during the time that the title stood in his wife’s name, or the contrary, as the fact might be. So, also, it was competent for the plaintiffs to prove, if they could, that the defendant received the consideration or some part of it upon a sale of the house, since that fact would have some bearing upon his relations to the property. If, for example, he had received the consideration of $18,500 expressed in the deed, or some part of it, the presumption would be that he received it in virtue of some right to it or some interest or estate in the land, legal or equitable, and this fact the plaintiffs were permitted to prove by the recitals of the deed. The true meaning and effect of the ruling of the learned trial judge was that the receipt by the defendant of the consideration, or some part of it, upon the sale was conclusively established by the recitals in the deed, and it was not open to the defendant to contradict these recitals by showing that the fact was otherwise. The question was not whether there was in fact a consideration, for the conveyance, but who received that consideration and that inquiry was open to the defendant, not for the purpose of affecting the validity or construction of the deed, but simply because it threw some light upon the issue of possession which was collaterally involved in the case. The deed or its recitals could not conel ude either party as to any fact bearing upon the question of legal possession at the time that the covenant was made. That being an issue entirely outside and independent of the terms of the deed, any fact bearing upon it was open to all competent proof, though there might be a recital in regard to this fact one way or the other in the deed itself. A deed is not conclusive evidence of every fact recited in it, and this is especially true when that fact becomes material upon some issue or question merely collateral or incidental to the deed. The truth in such cases may be shown without any violation of the rule which -excludes paroi proof to contradict or vary the terms or legal effect of a written instrument. The writing was never intended to embody or be evidence of the fact of possession in any one when the covenant was made, nor of any fact involved in or bearing upon that question. Certainly it was not conclusive evidence. The proof offered did not tend in any just sense to contradict or vary any right or liability depending upon the terms of the instrument, but it had a bearing upon another and independent fact to which the deed was collateral. Wheeler v. Billings, 38 N. Y. 263; Van Brunt v. Day, 81 id. 251; Condit v. Cowdrey, 123 id. 463; 34 St. Rep. 107; 1 Greenlf. on Ev. § 87; Am. & Eng. Ency. of Law, vol. 7, p. 95, art 92; M'Crea v. Purmont, 16 Wend. 460; Baird v. Baird, 145 N. Y. 659. It was upon that fact that the nature and duration of the covenant, whether personal or attaching to the land, depended. The writing was never intended to be the repository of it or of any subordinate fact relating to the inquiry, and the defendant might prove it outside of the deed.

We do not think that the fact that the covenant in question ran to the grantee, “ her heirs and assigns,” is material. Whatever confusion may exist in the cases with reference to the use of these words, it is clear that they cannot dispense with some privity of estate in order to carry the covenant with the land, and it has never been held that a covenant which, in its nature or otherwise, is personal, is made to run with the land by the mere employment of these words. Rawle on Gov. §§ 2, 203 ; Norcross v. James, 140 Mass. 188; Dart on Vend. & P. (5th ed.) 777, 778; Sugden on Vendors, 577, 578; Hurd v. Curtis, 19 Pick. 459 , Jacques v. Short, 20 Barb. 269; Andrews v. Appeal, 22 Hun, 430: Clark v. Deuoe, 124 N. Y. 120; 35 St. Rep. 206; Dexter v. Beard, 130 N. Y. 549; 42 St. Rep. 603; Mygatt v. Coe, 142 N. Y. 78; 58 St. Rep. 408.

The circumstance that the wife had no title when she conveyed has no force when determining the nature and character of the covenants. That question must be determined as if she had.

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

Haight,

J. (dissenting).—On the 15th day of July, 1858, one Ebenezer L. Roberts conveyed to Almira S. Coe, the wife of the defendant, the premises in question. They were thereafter occupied by Mrs. Coe and the defendant as a family residence until 1867, at which time they both executed a deed purporting to convey the same to Nancy Fisher. The deed contained full covenants, including that of warranty, with an acknowledgment of the receipt of the consideration to them in hand paid. Possession was thereupon surrendered to Nancy Fisher, who thereafter executed and delivered to the plaintiffs a bond and mortgage to secure a loan of $15,000. The premises were subsequently conveyed to Fuller and then to Leavitt. In 1878 the Leavitts were ejected by a judgment of the court, at the instance of parties claiming to be heirs of one Ephraim H. Howell, by title par-amount to that of Roberts, the grantor of Mrs. Coe, which judgment was affirmed by this court. Dunning v. Leavitt, 85 N. Y. 30. The plaintiffs then foreclosed their mortgage, and, upon the sale, bid in the premises for a sum less than the amount owing to them and a deficiency judgment for $2,000 was entered, which has never been paid' In November, 1881, the plaintiffs obtained an order-opening the judgment in ejectment and permitting them to be added as parties defendant. Upon the trial, judgment went against them, which was subsequently affirmed in this court. 95 N. Y. 617. This action was then brought against the defendant for breach of the covenants embraced in the deed of quiet enjoyment and of warranty, Mrs. Goe having in the meantime died.. The plaintiff recovered upon the trial and the judgment came to this court for review. It was heard by the second division and reported in 124 N. Y. 212; 35 St. Rep. 289. The main question there considered was whether the defendant’s covenants-of warranty and quiet enjoyment ran with the land and were-available by a subsequent grantee. It was held by a majority of the court that the defendant being a stranger to the fee, his covenants did not run with the land, and a new trial was ordered. Upon the re-trial judgment was entered for the defendant, but upon the findings of fact at the time of making the conveyance-the defendant was in possession of the property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family; and that upon the execution and delivery of the deed the defendant moved out of the premises and surrendered them to the grantee, who thereupon went into possession of the same. Upon the second review in this court these findings were considered in connection with the acknowledgment in the deed that the consideration was “ to them in hand paid,” being both the defendant and his wife, together with the provision in the covenant running to “ heirs and assigns.” It was then determined that the defendant, being in possession of the land, had an estate which he could convey, and having transferred the same with the covenants named to a grantee, his heirs or assigns, and receiving some part of the consideration, the covenants would be deemed to run with the land. Another trial was had resulting in a judgment for the plaintiff. The facts as now found are a follows: “ Prior to the said conveyance the defendant had incurred and paid charges for maintaining said premises and keeping the same i n repair; that he had also paid the taxes thereon in the years 1864 and 1865 ; that at the time of the said conveyance he was in control and had dominion over the said premises and exercised acts of control and dominion ; that at the time of the said conveyance the said Almira S. Coe resided in said premises with her husband, the defendant, as a member of his family; that when the said convejmnce was so made and delivered, the defendant was in possession of the said real property, consisting of a plot of land with a dwelling house thereon, being there domiciled and residing with his family; that upon the execution and delivery of the said conveyance the defendant moved out of the said premises and surrendered the same to the said grantee, who thereupon went into the possession thereof.” It is thus apparent that, upon the law as heretofore determined by this court, the judgment now entered must stand if these findings are sustained. Exceptions have been filed which call them in question and require us to determine whether there is any evidence to sustain them. Several witnesses testified that they were acquainted with the defendant and that he lived on the premises in question with his wife and family, for a number of years: that when he moved out Mrs. Fisher moved in. Other witnesses testified that the defendant ordered and paid for plumbing in the house and repairs thereon from time to time; that he paid the taxes during the years 1864 and 1865, and exercised control and dominion over the premises. This is, in substance, the evidence, and it is not controverted. Does it sustain the findings and establish such a possession as amounts to some privity of estate? We confess that the question presented is a close one and may not be free from doubt. At common law there could be no question but that the defendant would be liable upon his con vena nts, for, in the real property of the wife the husband had an estate during coverture, and also during his life, if there was issue of the marriage. Knapp v. Smith, 27 N. Y. 277. Under the Married Women’s Act of 1848 and 1849, the wife took absolute title to her real property as though she were unmarried and no estate vested in the husband during ■coverture. He still may have, however, an estate during life if there be a child of the marriage born alive, but this may be cut off by a conveyance by the wife during her lifetime. The husband still remains the head of the family, in duty bound to support his wife and" children and furnish them a suitable home or house in which to reside. He may, with the consent of his wife, live upon the premises owned by her, he may work the farm, raise crops thereon, may own, care for and raise cattle, and build a house thereon, and where this is done with the consent of the wife it may be inferred that he has been put into possession by her, and being in possession could maintain an action for trespass. Alexander v. Hard, 64 N. Y. 228. Where a party enters on woodland and cuts wood and does other acts thereon as owner, he thereby becomes seized of the land as against every one but the true owner, though his acts do not constitute the disseizin of such owner, and if he conveys by deed, his possessory title passes to his grantee and his covenant of warranty would run with the land and he becomes answerable thereon to his grantee’s assignee if ousted by the true owner. Slater v. Rawson, 6 Metc. 439. Possession of lands means a foothold, an actual entry, a possession in fact, a standing upon it, an occupation of it. Churchill v. Onderdonk, 59 N. Y. 134-136. It is denoted by the exercise of acts of -dominion over it, in making the ordinary use of and taking the ordinary profits from it, caring for it, having it in one’s power and under his control. Brown v. Volkening, 64 N. Y. 80 ; Williams v. Buchanan, 1 Ired. Law (N. C.), 535- 540. Sole and exclusive possession we do not understand to be necessary. Privity of estate may exist where the possession is joint. The defendant may have had a joint possession with his wife, and this has some support in the fact that they joined together in the covenants providing that they shall extend to the heirs and assigns of the grantee, thus apparently intending that it should run with the land. Mygatt v. Coe, 142 N. Y. 78-87; 58 St. Rep. 408. Some -criticism was made by the counsel for the appellant in reference to the language used in that opinion, as to the effect of the words “ heirs and assigns,” that if there was privity of estate the covenants would run with the land without the words and that their use in this connection was mere surplusage. This may be so, still the facts exists that they were used, and being used, tend to make more clear and certain the meaning and intention of the covenantors. The defendant doubtless supposed that his wife had title to the premises. It turned out, however, that she had only a color of title. Howell v. Leavitt, supra. The only estate she in fact had was that of possession and this she had with her husband.

Upon the whole case, from the fact that he lived on the premises with his wife and family; that he exercised control and management thereof, ordered and paid for the plumbing and repairs, paid the taxes, joined in the deed and the covenants running to the heirs and assigns of the grantee and received some part of the consideration, we are inclined to the view that we cannot say, as a matter of law, that the findings are wholly without evidence to sustain them, and that the defendant intended his deed to be an Idle ceremony of no force and effect. It would rather seem that he then thought he had some interest or estate that he could convey.

An exception was taken by the defendant to the exclusion of the evidence offered by him, to the effect that he received no part of the consideration expressed in the deed. In this, we think, there was no error. The deed was an executed instrument under seal. It was doubtless competent for him to show that the consideration was less or different from the amount recited, or to otherwise explain it, but he was estopped from showing that it was executed without any consideration for the purpose of invalidating the instrument. The covenants in a deed are material parts thereof, and if they are dependent on consideration the effect of the evidence offered would be to invalidate them. This cannot be done by paroi evidence. To permit it would be to deprive subsequent grantees of rights required in good faith, relying upon the covenants of the grantors and his acknowledgment of having received a good consideration therefor. M'Crea v. Purmort, 16 Wend. 460; Stackpole v. Robbins, 47 Barb. 212-219; s. c. affirmed, 48 N. Y. 665; Hebbard v. Haughian, 70 id. 54-59.

We have thus far considered the case upon the assumption that privity of estate is essential in order to cause the covenants to run with the land, and we do not now intend to question the correctness of the determination of the Second Division to the extent that the covenants of a stranger to the fee made without consideration do not run with the land. Whilst conceding this, we are unwilling to hold that an agreement may not be made, even by a ■stranger based upon proper consideration, to warrant and defend the title of the grantee and those that shall follow him. In many of our cities searching and guaranteeing companies have been organized for this very purpose. Such companies are strangers to the title, and have no privity of estate, but for a consideration they •undertake to defend the title, and we know of no reason, either in law or morals, why they may not intentionally make their guaranty run with the land.

In the case under consideration as we have seen, the defendant ■executed the covenants in question, expressly providing that they ■should run to “heirs or assigns,” thus intending them to run with the land. The covenants were made upon proper consideration, the receipt of which is acknowledged by him. We think, therefore, that it is but just that he carry out the provision of his contract.

The other questions discussed have already been considered in the former decisions of this court.

.The judgment should be affirmed, with costs.

Andrews, Oh. J., Beckham and Gray, JJ., concur with O’Brien, J., for reversal.

Haight, J., reads dissenting opinion, and Finch, J., concurs with opinion; Bartlett, J., concurs in result

Judgment reversed.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    The People, Resp’t, v. Lewis Altman, Named in the Indictment, James Altman, App’lt.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Criminal law—Indictment—Duplicity.
    An indictment, which alleges the forging of an indorsement with intent to defraud a certain person by offering it to him in payment for goods purchased, charges but one offense and contains only the plain and concise statement of the act constituting the crime, which the statute requires.
    2. Evidence—Forgery.
    Upon the trial of an indictment for uttering a forged check, evidence of other similar checks found upon the person of the defendant with the forged check counted upon, without any proof as to their handwriting oías to whether they were genuine or forged, is immaterial upon the question of intent.
    3. Appeal—Harmless error.
    The rule that an error, committed upon a trial, may be overlooked when the party complaining is not injured thereby, is applicable only in cases where the error could by no possibility have produced injury.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which affirmed a judgment of the court of sessions of the county of Warren, entered upon a verdict convicting defendant of the crime of forgery in the second degree.

      A. Armstrong, Jr., for app’lt; Lyman Jenhins, for resp’t

       Reversing 67 St. Rep. 634.

   Bartlett, J.

The defendant was indicted as James Altman,, but it was subsequently found that his name is Lewis Altman.

The indictment charged him with.forging the check of James-Altman for twenty-five dollars on the Glens Falls National Bank, and that with the intent to defraud one Rufus M. Cole he forged upon the back thereof the indorsement of one Henry H. Bush,, and offered same in payment for certain goods purchased of Cole.

The defendant demurred to the indictment upon the ground that more than one crime was charged therein. The demurrer was overruled and defendant required to plead, and we think properly. It is true the statute (Code of Criminal Procedure, §§• 278, 279) provides that the indictment must charge but one crime and in one form, except it may charge in separate counts the crime to have been committed in a different manner or by different means. We do not think this enactment in the Code of Criminal Procedure laid down a new rule, but was merely a codification of the existing law.

The Penal Code makes both the forging of an instrument (.§ 511) and the uttering thereof, knowing it to be forged (§ 521), forgery in the second degree.

It may well be that one person may forge the instrument and another utter it, and it is evident that both acts should be deemed equally criminal.

In the indictment now before us the crime charged was the forgery of the indorsement of H. H. Bush, with the intent to defraud Eufus M. Cole. It charges but one offense, and contains only the plain and concise statement of the act constituting the crime which the statutes requires. Code of Criminal Procedure, § 275.

The allegation that the defendant offered the check with the foi’ged indorsement thereon to Cole in payment for goods purchased does not charge a separate offense, refers to one transaction, and avers a fact which the people were bound to prove before they could convict.

There is nothing in the previous decisions of this court laying down a different rule of criminal pleading.

The counsel for the defendant referred to two cases.

In People v. Tower, 135 N. Y. 457; 48 St. Rep. 438, the only point decided was that assuming the offenses of forgery and uttering the forged instrument could not be united in the same indictment the remedy is by demurrer, and where not so taken the objection is waived.

In People v. Adler, 140 N. Y. 381; 55 St. Rep. 669, the defendant was charged with the crime of forgery in the second degree, and the first count in the indictment charged him with forging a certain written instrument set forth, while the second count charged him with uttering it.

The defendant demurred and the demurrer was overruled; this court sustained the ruling.

It may very well happen that when the district attorney is drawing an indictment for forgery in the second degree he may be in doubt as to whether he can prove the forging, or the uttering, and it would be prudent and proper pleading to set forth the offense in two counts as in Peoph v. Adler.

But in the case at bar the offense charged was, as already pointed out, the forging of an indorsement with the intent to defraud a certain person by offering it to him in payment for goods purchased, and there is nothing in either of the cases cited rendering improper to set forth such a state of facts in one count of the indictment.

While we have reached the conclusion that this conviction must be reversed on other grounds, we have dealt at length with the question presented on the demurrer to the indictment in order to settle a point of criminal pleading about which some confusion seems to exist.

When the prisoner was arrested the sheriff searched him and found upon his person not only the forged check and indorse ment which are set forth in the indictment, but sundry other papers.

One paper purported to be the check of W. B. Miller, dated at Hudson, N. Y., September 6, 1894, drawn on the Farmers’ National Bank for one hundred dollars and indorsed by H. H. Busch, being the same indorsement as appears upon the check set forth in the indictment. Another paper purported to be the check of W. B. Young, dated at Glens Falls, September 6, 1894, drawn on the Glens Falls National Bank for one hundred dollars; this check bore no indorsement.

Another paper contained nothing but the letters and word “H. H. Bush.”

In addition to the above there were six blank checks, Merchants’ National Bank, Glens Falls, N. Y.; two on First National Bank, Saratoga Springs, N. Y.; one, Farmers’ National Bank,, Hudson, N. Y.

At the trial the district attorney offered in evidence the instrument set forth in the indictment and which had been tendered by the defendant to Rufus M. Cole in payment for goods and the indorsement upon which had been proved a forgery.

While this paper was found upon the person of the defendant it was material, was fully proved and properly received, notwithstanding the objections of the defendant.

Thereupon the district attorney offered in evidence other papers found on the person of the defendant and which we.have already described, without giving any proof as to their handwriting or as to whether they were genuine or forged.

The defendant’s counsel objected in these words, viz.: “Defendant objects as immaterial and not set out in the indictment and incompetent.”

The record then states:

“ Objection overruled and papers received in evidence as marked as bearing upon the question of the intent with which the act was committed. Exception to the defendant.”

These papers were exhibited to the jury, and it may very well be that the two checks duly filled out and already described were regarded by them as other instruments forged by the defendant, although no proof as to their character had been offered.

There was no attempt to bring the case within the rule laid down by this court, that upon the trial of an indictment for forgery by uttering a forged check, and as bearing upon the question of guilty knowledge of defendant, it is competent to prove the uttering by him of other forged checks upon other occasions. People v. Everhardt, 104 N. Y. 591; 5 St. Rep. 793.

It is impossible to say that the defendant was not prejudiced by these papers admitted against his objection. The rule that an error committed upon a trial may be overlooked when the party complaining was not prejudiced thereby is only applicable in cases where the error could by no possibility have produced injury. Stokes v. People, 53 N. Y. 164.

We think the papers were clearly incompetent evidence, and their admission was error, and the judgment of conviction should he reversed.

The judgment should be reversed and a new trial ordered.

All concur.

Judgment reversed.


text:
    Eugene H. Ladd et al., Resp’ts, v. Ætna Insurance Company, App’lt.

      (Court of Appeals,

      Filed November 26, 1895.)

    Insubance—Fibe—Vacant ob unoccupied.
    The mere temporary cessation of the operation of the machinery in a manufacturing establishment by reason of sickness, break down, low water or other unavoidable cause, though it is not the intent of the insured to cease operating or to allow the premises to become vacant or unoccupied, does not come within the terms of a standard fire insurance policy, avoiding it in case the premises become vacant or unoccupied.
    Appeal from order of the general term of the supreme court iu the third judicial department which reversed a judgment in favor of defendant entered upon a verdict directed by the court and granted a new trial.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      A. H. Sawyer, for app’lt; John P. Kellas, for resp’ts.

       Affirming 53 St. Rep. 744.

   Bartlett, J.

This action was brought to recover on a policy of insurance covering a frame water-power saw-mill building and machinery contained therein. The policy was issued to plaintiffs as owners of the property, and ran for one year from February 26th, 1891; the property was totally destroyed by fire January 9th, 1892.

On June 29, 1891, the plaintiffs entered into a written contract to sell the property to King and Trushaw, and the latter at once entered into possession and occupancy and operated the property, as plaintiffs claim, until its destruction by fire.

On the 30th of June, 1891, an indorsement was made on the policy by the agent of the defendant to the effect that title was in King and Trushaw, and loss, if any, payable to the plaintiffs as their interest might appear.

-Is was one of the questions litigated on the trial whether the plaintiffs gave defendants such notice of the change of interest as was required by the terms of the policy, in view of the fact that the legal title was not vested in King and Trushaw at the time of the fire, although the indorsement on the policy stated that it was.

Prior to the commencement of this action King and Trushaw assigned to plaintiffs all their claims under the policy.

As it is a well-settled rule that in determining the correctness of a nonsuit the plaintiff is entitled to the most favorable inferences deducible from the evidence, and all contested facts are to be deemed established in his favor, it will be assumed, for the purposes of this appeal, that the plaintiffs fully complied with the provisions of the policy as to change of interest, and were authorized to bring this action to recover any amount due from defendant by reason of' the loss. Rehberg v. The Mayor, eta., 91 N. Y. 141; Weil v. D. D., E. B. & B. R. R. Co., 119 id. 152 ; 28 St. Rep. 944.

The JEt'na Insurance Company defends this action mainly on the ground that the plaintiffs were conducting a manufacturing establishment, and that for more than ten consecutive days they had ceased to operate it as such and had allowed it to become vacant or unoccupied.

The material portion of the policy now to be construed read as follows, viz.:

This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the subject of insurance be a manufacturing establishment and * * * it cease to be operated for more than ten consecutive days * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”

The facts, as the plaintiffs are entitled to claim them by the record as now presented, are as follows, viz.: After King and Trushaw entered into contract to purchase the insured property they took possession at once and made extensive repairs; King lived near the property and was the sawyer, and Trushaw resided some ten miles away ; King, with an assistant, ran the mill until about December 11th, 1891, when he was taken ill and compelled to discontinue work.

It further appears by the testimony of Trushaw that he was at the mill on Tuesday, three or four days before the fire, and observed that there was considerable lumber piled up in and around the mill, and there were also logs there ; the witness testified that on this occasion he sawed two logs, planed them and drew them home; he also swears that owing to King’s continued illness he had promised him to come the next Monday and saw up some hundred or hundred and fifty logs which had been delivered at the mill,, but that he was prevented from so doing by the fire.

Lucy King, the wife of King, was called as a witness by defendant, and testified that her husband was dead ; she corroborated Trushaw as to his running the mill the Tuesday before the fir'e ; she also swore that during her husbnnd’s illness, and up to the time of the fire, logs were drawn to the mill and lumber taken away. Fullerton, King’s assistant, was called by plaintiff, and testified that when King was taken sick they had arranged to begin the next day to get out a bill of lumber from logs already delivered for the purpose; that after King was taken ill he (witness) cut wood for about a week.

It also appears that the mill was in good shape and in condition to run.

The learned counsel for the defendant contends that, notwithstanding this array of facts tending to show that the owners of the mill had not ceased to operate it and the premises had not become vacant or unoccupied, there was a plain violation of the provisions of the policy already quoted, for the reason that on account of King’s sickness the machinery in the mill was not run for more than ten consecutive days.

We are unable to agree with the defendant’s contention that this clause of the policy is too clear for argument, and that any temporary cessation o£ the operation of the machinery in a manufacturing establishment by reason of sickness, break down, low water, or other unavoidable cause, although it is not the intent of the insured to cease operating, or to allow the premises to become vacant or unoccupied, is a clear violation of its provisions.

We think this clause of the policy should be reasonably construed so as to afford proper protection to both parties, rather than to give it a meaning which must inevitably mislead the insured and do violence to the plain language of the instrument.

It does not seem possible that the owner of a manufacturing establishment entering into the covenants and agreements tendered to him by the standard insurance policy of this state, would suppose that if the necessary repairs of the machinery of his mill should take over ten days his insurance was forfeited unless the consent of the company was obtained. If it is the intention of the legislature or the insurance companies to force such a hard and unreasonable contract upon the insured it should be under a provision to that effect worded in clear and unmistakable terms.

To give the policy the meaning insisted upon by the defendant is not only to disregard some of the previous decisions of this court construing provisions somewhat similar, but is to lose sight of the reason which has led insurance companies to protect themselves against risks on manufacturing establishments which have ceased to be operated and business or residential property which has become vacant or unoccupied, to wit, the increase of the moral hazard.

It is a fact well known to underwriters that the probability of loss is greatly increased when property of any kind becomes unproductive ; an idle mill and a vacant dwelling house are undesirable risks. It does not follow, however, that a mill is idle by reason of temporary delays incident to the business, nor that a dwelling house is vacant or unoccupied, the owner of which, leaving it fully furnished, has turned the key and left it for a short sojourn elsewhere. , This court held that where the insurance was upon a saw mill run by water power, delays and interruptions incident to the business, such as low water, diminished custom or derangement of the machinery causing a temporary discontinuance of the active use of the mill, did not come within the terms of the policy avoiding it in case the premises became vacant and unoccupied. Whitney v. Blade River Ins. Co., 72 N. Y 117.

In still another case this court decided, in construing a similar provision, that a dwelling house furnished throughout, from which the owner had removed for a season, intending to return and resume possession, was not vacant within the meaning of the policy. Herrman v. The Merchants' Ins. Co., 81 N. Y. 184.

In the case at bar the undisputed facts show that the business at plaintiffs’ mill was conducted as usual during the illness of King, with the exception of running the machinery; logs were received, lumber delivered and arrangements completed to supply King’s place as sawyer.

There was no violation of the policy either in letter or spirit, and we think the general term very properly ordered a new trial.

The order appealed from should be affirmed, with costs, and judgment absolute ordered for the plaintiff upon appellant’s stipulation.

All concur. Ordered accordingly.


author: Andrews, Gh. J.

text:
    Anson E. York et al., Resp’ts, v. William W. Conde et al., App’lts.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Statutes—Federal—Construction oe.
    Upon the question of statutory construction of an act of Congress which has been determined by the supreme court of the United States, subsequently arising in the court of appeals, the latter court will adopt and follow the construction of the former tribunal on the principle of comity, though in a case where the ultimate jurisdiction vests in the court of appeals.
    3. Claims against United States—Transfer.
    Section 3477 of the United States Revised Statutes does not defeat a transfer of a claim against the United States made before the allowance of the claim, when made in the legitimate and usual course of business, in good faith, to secure an honest debt. Such transfer, though it may be disregarded by the government, is good as between the parties so far as to-enable the transferee, after the government has paid over the money to the claimant, to enforce as against him or those who take subsequently with notice, the interest or lien given by the assignment. '
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiffs entered upon a verdict.

      Eton P. Brown, for app’lts; Henry Purcell, for resp’ts.

      Affirming 54 St. Rep. 937.

   Andrews, Gh. J.

The determination of this appeal depends upon the true construction of section 3477 of the Revised Statutes of the United States. The general facts may be briefly stated. The firm of Witherby & Gaffney were contractors with the United States for building barracks at Sackets Harbor. The plaintiffs constituted the firm of York & Starkweather, and furnished to the contractors lumber and materials for the work of the value of $3,000 and upwards, which were used in the construction. During the progress of the work and before its completion, and on the 27th day of March, 1890, Witherby & Gaffney made a written assignment to York & Starkweather of $3,000 “of the money due, and to become due,” to the assignors from the government on their contract, to apply on their indebtedness to the assignees for the lumber and materials so furnished, and authorized the disbursing agent of the government, through whom the payments on the contract were made, to pay the plaintiffs $500 from the next estimate thereafter, and $2,500 on the completion of the contract, and when the balance coming to the assignors should become payable to them. Witherby & Gaffney paid the plaintiffs $500, but no further payment has been made to them. On May 15, 1890, the contract having been completed, the disbursing officer delivered to Gaffney, one of the contractors, a draft for $4,400, in payment of the amount unpaid on the contract, which he delivered on the same day to the defendants to secure them for liabilities, as indorsers and otherwise, previously incurred for the benefit of Witherby & Gaffney. The defendants, before they had parted with the draft, were notified by the plaintiffs of their claim and of the terms of the "assignment to them, and they demanded that the defendants should pay them out of said draft the sum of $2,500, the amount remaining unpaid to them from Witherby & Gaffney, which the defendants refused to do. This action was thereupon brought to recover said sum.

The claim set up by the defendants in their answer, that prior to the assignment to the plaintiffs, Witherby & Gaffney had verbally assigned to them the money to become due on the contract, as security for their indorsements, was tried before the -jury and found against them and need not be further considered. There can be no doubt that under the general rule of law prevailing in this state the plaintiffs, under the assignment of March 27, 1890, acquired an equitable, if not a legal, title to the money payable on the contract of Witherby & Gaffney with the government to the extent of $3,000, and that the defendants, having acquired possession of the draft for the final payment on the contract, by delivery from Witherby & Gaffney, to secure an antecedent liability, on being notified of the claim of the plaintiffs, held the draft and the fund it represented, as trustee of the plaintiffs, to the extent of their claim. Field v. Mayor, &c., 6 N. Y. 179; Devlin v. Mayor, &c., 63 id. 8.

But the contention is that the plaintiffs took nothing under the assignment to them, because, as is claimed, the transaction was void under section 3477 of the Revised Statutes of the United States, to which reference has been made. That section is as follows: “ All transfers and assignments made of aviy claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers pf attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer,, at the time of the acknowledgment, read and fully explained the' transfer, assignment or warrant of attorney to the person acknowledging the same.”

This section has been considered .in several oases by the supreme court of the United States. If that court has construed the section so as to determine the point involved in this case we should deem it our duty to follow its decision. The judgment we shall render will not, we suppose, be subject to review by the supreme court. We do not question the validity of the section in question, nor will our decision affect any right of the defendants based thereon. Their right, if any, rests upon the transfer of the draft after it came to the lands of Witherby & Gaffney. They seek to defeat the right of the plaintiffs under their prior assignment of a portion of the futid, and invoke section 3477 to establish that the assignment was void and conferred no right. But on a question of statutory construction of an act of Congress which has been determined by the supreme court of the United States, subsequently arising in this court, we should feel bound to adopt and follow the construction of that tribunal on the principal of •comity, although in a case where the ultimate jurisdiction is vested in this court. This principle is especially important to be observed in such a case, in view of the relation between the federal and state courts, not exercising, in all cases, a co-ordinate jurisdiction, but engaged in the administration of justice to a great extent between persons who are citizens both of a state and of the United States. The decisions of the tribunals of a state as to the true construction of the statutes of its own sovereignty are followed by the federal courts, and it would be most unseemly and produce great confusion if state courts should refuse to adopt the construction of the supreme court of the United States, of federal statutes.

The section in question was taken from the act of Congress approved February 2^, 1863, entitled “An act to prevent frauds ■on the treasury of the United States.” Its object was to protect the government. It was enacted, as was said by Mr. Justice Miller in Goodman v. Niblack, 102 U. S. 556, to prevent embarrassments to the government which might arise if it was compelled to recognize rights of third persons not parties to the original contract or transaction, and, second, to shut the door to improper influences in prosecuting claims before the departments or courts or congress.

Ther.e are two theories of construction of the statute. One is that, which gives the widest meaning to the words and which makes a transfer or assignment of a claim or interest void not only .as to the government ' and its officers, but as to the parties to the transfer or assignment. Upon this theory the money, when paid over to the original claimant, cannot be reached in his hands unless, after the allowance of the claim and the issuing" of a warrant for its payment, the provisions of the section were complied with. This theory wholly forbids the acquisition before this has been done of any right in the fund through any transfer or assignment, however formal the instrument or however just and innocent the transaction. The other theory is that the objects of the statute are accomplished by a construction which makes an assignment or transfer made before the allowance of a claim void as between the claimant and the government, but leaves the transferee, after the fund has come to the hands of the claimant, to assert such legal rights against the fund and avail hi mself of such legal remedies to enforce them, as exist in other cases of transfer.

The supreme court has consistently maintained that a transfer •or assignment made before the allowance of a claim, was void at the election of the government, and that as against the assignee or transferee, the government may wholly disregard it, and that payment made to the original claimant by the government is a good acquittance of the liability, although it had notice of the transfer at the time. But the court has also decided that the government may recognize such a transfer and that payment to the transferee will protect it against any subsequent claim of the original party. Bailey v. U. S., 109 U. S. 432. The principal case relied upon by the defendants to sustain their contention is Spofford v. Kirk, 97 U. S. 484, and if what Mr. Justice Miller in Goodman v. Niblack, supra, characterizes as the strong language of the opinion in that case, is to have the broadest application, there would be difficulty in holding that the assignment now in question can be upheld. But the transfer under consideration in Spofford v. Kirk was of part of a disputed claim then in controversy between the claimant and the government. The court soon began to depart front the rigid interpretation of the statute indicated in Spofford v. Kirk. In Goodman v. Niblack, supra, it was held that the statute did not embrace the case of a voluntary general assignment by an insolvent for the benefit of his creditors, and that a claim existing against the government in favor of the assignor passed by the assignment. Mr. Justice Miller in his opinion, referring to the statute, said: “Its sole purpose was the protection of the government and not that of the parties to the assignment.” The case of Hobbs v. McLean, 117 U. S. 567, shows a further relaxation of the strict rule declared in Spofford v. Kirk, and the court referring to sections 3737 and 3477 of the Be vised Statutes, after stating that they were passed for the protection of the government, said : “ The purpose was not to dictate to the contractor what he should do with the money received on his contract, after the contract had been performed.” The ease of Freedman's Savings & Trust Co. v. Shepherd and Shepherd v. Thompson, 127 U. S. 494, has an important bearing upon the present case. The facts are complicated. The question related to the conflicting claims of parties to two drafts which had been issued and delivered by the government to an attorney for rent under a lease of premises made by one Bradley to the government in 1873, and to another sum of $787.50 paid by the government to a receiver for rent of the same premises after June 6, 1878. One of the drafts was for rent for the year ending June 30, 1876, and the other for two years prior to June 30, 1878. Thompson, one of the parties to the action, claimed to be entitled to the drafts as pledgee of the rents, under an agreement dated June 21, 1877, made between him and. Bradley, the original lessor and Shepherd, his grantee. At the date of the pledge a suit was pending against the United States to recover the rent for the year ending June 30, 1876, in favor of Bradley. The case was finally decided in his favor in October, 1878. During the pendency of the suit a suit was brought for the rent for the two years ending-June 30, 1878, and the second draft was given in settlement of that suit. Enough has been stated to show that Thompson, claimed under a pledge made not only before an allowance of the rent due June 30, 1876, but while a suit was pending for its. recovery, and that only part of the rents for the years 1877 and 1878, included in the pledge, for which the second draEt was given, had become due when the pledge was made. Thompson's right to the drafts were contested under section 3477 of the Revised Statutes, the claim being that the pledge was void. But. this objection was overruled and the court sustained Thompson’s-claim to the drafts, and on appeal the judgment was affirmed. Mr. Justice .Harlan, in pronouncing the opinion of the court, said: “ The simple question is whether the money received from-the government shall be diverted from the purpose to which Bradley, Shepherd and Shepherd’s trustees agreed in writing that it should be devoted, namely, to the payment of the debts Thompson holds against Shepherd. This question must be answered in the negative, and in so adjudging we do not contravene-the letter or the spirit of the statute.” The case, although many more circumstances appear than are here stated, seems to us to go far in sustaining the claim of the plaintiffs in the present action. We think that the question cannot be said to have been decided adversely to their contention in the federal supreme court. In our opinion a just construction of the statute does not invalidate the transfer of Witherby & Gaffney to the plaintiffs, nor will the objects of the statute be defeated by the construction that such a transfer, made in a legitimate and usual course of business, in good faith, to secure an honest debt, while it may be disregarded by the government, is good as between the parties so far as to-enable the transferee, after the government has paid over the money to the claimant, to enforce as. against him or those who-take with notice, the interest or lien given by the assignment. The fact that the government may refuse to recognize any transfer- or assignment, in connection with the general principle of law which avoids all agreements contrary to public policy, will be a sufficient discouragement to illegitimate transactions, or, at all events, it is all the law can justly interpose, having due regard to the exigencies of business and the protection of innocent parties.

The supreme court of Massachusetts, in Jernegan v. Osborne, 155 Mass. 207, reached substantially the same conclusion as that, to which we have arrived.

The judgment should be affirmed.

All concur, except O’Brien, J., not sitting.

Judgment affirmed.


author: Andrews, Oh. J.

text:
    William H. Armstrong, App’lt, v. Lake Champlain Granite Company, Resp’t.

      (Court of Appeals,

      Filed November 26, 1895.)

    1. Evidence—Deed—Construction.
    In an action brought to determine the rights of parties under a deed as written, evidence as to the motives of the original grantees and of their statements as to what they intended to purchase or had purchased, where such disclosures were made to third parties not connected with the sale, is incompetent.
    3. Same—Custom.
    Evidence, which only goes to the extent of showing that certain persons understood that the term “minerals,” when used in a mining deed, does not include granite but ores containing metals, is insufficient to establish a settled and recognized usage which shall override the legal meaning of the word, in the absence of proof that any transaction had taken place based upon such alleged usage, or that such usage was known to either of the parties to the deed.
    S. Deed—Construction—Granite.
    Granite, in the absence of any qualification of the meaning of the term, is embraced in a reservation or grant of “ minerals” in a mining deed; but it will not pass by a grant of “ minerals and ores,” when these words are connected with a context which clearly indicates that the parties had in view only such minerals as are to be procured by underground, and not by open, workings.
    Appeal from judgment of the general term of the supreme ■court in the third judicial department, entered upon an order, which affirmed a judgment in favor of defendant, dismissing the complaint upon the merits, entered upon a decision of the court on trial at special term.

      Bichard L. Hand, for app’lt; Chester B. McLaughlin, for resp’t.

       Affirming 54 St. Rep. 936.

   Andrews, Oh. J.

This action was brought to restrain the defendants from quarrying granite upon lot 27, Split Rock tract, in Essex - county. Both parties claim title to the granite. The plaintiff claims under two deeds from Philip S. Baldwin, the common source of title to John Bridgford and others, one dated March 30, 1871, and the other May 18, 1871. By the first deed, which recites a consideration of eight hundred dollars, Baldwin conveyed to the grantees “All the mineral ores ” on the tract, “ together with all needed ways and privileges for mining and raising and removing said mineral ores, excepting and reserving such mineral ores as were originally reserved by the state of New York, and reserving all other rights and interests in said lands save said mineral ores and the right to raise and remove the same.” Bv the second deed, which makes no reference to the first deed, but which recites the same money consideration, the grantor conveyed “ All the mineral and ores (on the same premises), with the right to mine and remove the same; also the right to sink shafts and sufficient surface to erect suitable buildings for machinery and other buildings necessary and usual in mining and raising ores ; also the right of ingress and egress for mining purposes, and to make explorations for minerals and ores, saving reservations to the state of New York.” In June, 1890, the plaintiff by conveyance to him acquired the right vested in the original grantees of Baldwin under the deeds mentioned. In March, 1889) the defendant, as grantee of a prior corporation in which through mesne conveyance the title to the lands remaining in Baldwin after the conveyance to Bridgford and others in 1871 was vested, acquired such title. Before the conveyance to the defendant, and about the year 1880, a vein of granite 300 to 400 feet in width had been discovered on the premises. The land was thickly wooded and the granite discovered was overlaid by soil from four to six feet deep. Prior to the defendant’s purchase the vein had been uncovered to some extent and some work had been done by the defendant’s grantor’s in getting out granite for market. The defendant took immediate possession of the premises under its deed and commenced active operations in developing the granite, and up to June, 1890, when the plaintiff acquired his alleged title, the defendant had expended in opening the quarry, erecting buildings and machinery, and in necessary work for conducting the business the sum of about thirty-five thousand dollars.

The determination of the controversy in this case depends upon the interpretation of the second deed from Baldwin to Bridgford and others of May 18, 1871. Under the deed of March 30,1871, which conveyed only the “ mineral ores on the lot, it is plain that the granite did not pass. The word “ ore ” has a definite signification, and designates a compound of metal and other substance. Granite neither in a popular or scientific sense is a mineral ore. The second deed conveys the “minerals and ores,” and also amplifies -by words, if not in law, the mining privileges and the right to use the surface given by the first deed. There' is no explanation of the circumstances which led to the giving of the second deed. There is nothing to show that it did not express the real intention of the parties. We think the necessary inference from the comparison of the two deeds is that the second was intended to convey rights not included in the prior grant, and that the words “ minerals and ores ” cannot be cut down to the same meaning as “ mineral ores ” in the first deed, upon any theory that no new consideration was given for the second deed, or that the whole purpose of the second deed was to define more clearly than was done by the first deed the incidental mining privileges intended to be granted and not to enlarge the grant as to the kind of minerals granted. If the first deed has any importance in the case, it strengthens rather than weakens the position of the plaintiff.

The whole question, as above intimated, turns on the interpretation of the words “ minerals and ores ” in the second deed. In view of the conclusion we have reached and to avoid possible misconceptions in the future, it is proper to state that in our opinion the evidence given and admitted on behalf of the defendant under objection by the plaintiff, that the purpose of Bridgford and his co-grantees in securing the deeds of 1871 was to acquire the iron ore then supposed to exist on the premises, and of their statements contemporaneously with the purchase, that they had purchased the iron ore on the lot, was incompetent to explain or confine the meaning of the words “ minerals and ores ” in the deed of May 18, 1871. The evidence would have been incompetent if it had related to the motives of the parties to the deed sought to be established by the oral statements or negotiations between them prior to or contemporaneous with its execution. The words of a deed, unambiguous in themselves, cannot be controlled by proof that the parties used them with a definite and limited meaning, for the purpose of that particular instrument. Such proof might, ■under some circumstances, be competent in an action between the parties to reform the instrument, but notin determining the rights of the parties under the instrument as written. The incompetency of the evidence received as to the motives of the original grantees and of their statements as to what they intended to purchase or had purchased, is still more manifest in view of the fact that they were disclosed and the statements made to third parties not connected with the sale. See Voorhees v. Burchard, 55 N. Y. 98, The defendants were also permitted under objection to give evidence of witnesses who lived or had owned property in the Champlain valley, that the word “minerals ” was understood “ about there’’ to mean iron ores. It is unnecessary to determine in this case whether the usage or understanding in a particular district of the meaning of words used in a deed of mining property, which limits and controls their general meaning, is admissible for the purpose of fixing rights thereunder. It is sufficient to say that the evidence offered and received upon that subject in this case only went to the extent of showing that certain persons understood that the term “ minerals,’’ when used-, did not include granite, but ores containing metals. The evidence was quite insufficient to establish a settled and recognized usage which shall override the legal meaning of the word. It was not shown that any transaction had taken place based upon the alleged usage, or that such usage was known to either of the parties to the deeds of 1871. In a mining case, Tucker v. Linger, 21 Ch. Div. 18, Jessel, M. R, speaking of a custom relied upon in that case, said: “ The custom must be collected, not from what witnesses say they think the custom is, but from what was publicly done throughout the district.” See Midland Railway Co. v. Robinson, 37 Ch. Div. 386, and remarks of Y. C. in Darvill v. Roper, 3 Drewry. 301.

Putting aside, therefore, the extraneous evidence received upon the construction of the words minerals and ores ” in the deed of 1871, the questions arise (1) whether, under a grant of “minerals,” on specified premises, granite is included in the absence of limiting-words ; and (2) whether, if comprehended in the general term, it is excluded from the deed of May 18, 1871, by reason of the context in connection with the fact that it can only be got by quarrying. It is plain that an owner of land who .grants the minerals to another does not use the word synonymous with mineral substances, because if this meaning was attached to the grant it would amount to a grant of the whole land, as the soil and all below it would be embraced in that description. The question of what are minerals' within a grant or reservation of mines and minerals has been frequently considered by the English courts, and the almost uniform conclusion has been that the word includes not only metals and metal-bearing rock, but anything mineral in -character which can be got by mining. In one of the cases, Earl of Rosse v. Wainman, 14 M. & W. 858, which was affirmed ■(2 Exch. 800), the question arose under a reservation to the lord of the manor, in an inclosure act, of “all mines and minerals’’ lying within or under the common or waste lands, inclosed by the act,'and it was held that beds of building stone were within the reservation. Parke, B., in his, opinion, said: “ The term ‘ minerals,’ here used, though more frequently applied to substances containing metals, in its proper sense includes all fossil bodies or matters dug out of mines.” In Bell v. Wilson, 1 Ch. App. 303, under a conveyance pf land reserving to the grantor “all mines or seams of coal and other mines, metals or minerals,” it was held that the reservation included freestone. -Hext v. Gill, L. R., 7 Ch. App. 699, is an important case on the subject, because Hellish, L. J., in his opinion formulates as the result of the adjudged cases the principle upon which the cases proceed, and which has been followed and applied in several subsequent cases. That was a case of a reservation in a jjrivate grant by the lord of a manor of “ all mines and minez-ais within or under the premises,” and the question was whether beds of china clay, the product of the disintegration of granitej not known to exist in the land at the time of the grant, were embraced within the reservation, and the court decided tliat they were. Hellish, L. J., said: “ The result of the authorities, without going through them, appears to be this, that a reservation of ‘minerals’ includes ever/ substance that can be got from underneath the surface of the earth, for the purpose of profit, unless there is something in the context or in the nature of the transaction to induce the court to give it a znore limited meaning." The same principle was expressed in another form by Bowes, L. J., in the case of Earl of Jersey v. Guardians, etc., L. R., 22 Q. B. Div. 555, following the case of Hext v. Gill, supra, in which he said that the word applies to all substances of a mineral nature which have “ a use or value of their own, independent of their being constituents of the soil.” The question in that case was whether, under a reservation in an ordinary grant of 11 all mines of coal, culm, iron and all other mines and minerals whatevez1, except stone quarries within and under," etc., brick earth and clay were reserved, and it was held that tlzey were. Loz-d Romilly in Midland Railway Co. v. Checkley, L. R., 4 Eq. Cas. 19, construing a reservation in an act for the compulsory taking of land for canals, of “ all mines and minerals within and under the land," in which the question was whether the right to quarry paving stones was reserved, said: “Stone is, in my opinion, clearly a mineral, and, in fact, everything, except the mere surface which is used for agricultural purposes; anything beyond that which is useful for any purpose whatever, whether it is granite, maz-ble, fire clay or the like, comes within the word, mineral, when there is a reservation of the mines and minerals from a grant of land. Every species of stone, whether marble, limestone or ironstone, comes in my opinion in the same category.” We shall refer only to another English case, the latest on the subject. Attorney-General v. Welsh Granite Co., 35 Week. Rep. 617, decided in 1887, which held that granite was a mineral within a reservation of “mines and minerals."'' There are but a few American cases which we have found bearing on the subject. In Moore v. Brown, 16 N. Y. Supp. 592; 41 St. Rep. 847; s. c., 139 N. Y. 127; 54 St. Rep. 523, it was assumed both in the supreme court and in this court that garnet discovered in Essex ■county on state lands was a “ valuable mine or mineral ” and subject to a claim under chap. 411 of the Laws of 1890. In Hartwell v. Camman, 2 Stock. Ch. R. 128, it was held that “ paint stone ” useful for grinding into paint procured by mining passed to the grantee of “ mines and minerals,” although its existence was not known at the time of the grant, but copper mining had before the grant been to some extent prosecuted on the premises.

Upon the authorities we think we should not be justified in holding that granite was not embraced in a reservation or grant ■of “ minerals ’’ in the absence of qualification. It is no doubt true that this word in its more common application in a grant of “ minerals ” would be deemed to refer to metallic substances. This perhaps grows out of the fact that mining is to a great extent prosecuted for the purpose of obtaining gold, silver, iron and other metals, and grants of “ minerals ” or reservations thereof in conveyance of public lands are most frequently made with reference to mineral-bearing ores or deposits. But it would be unwarrantable limitation of such a grant or reservation, to exclude from its operation beds of coal or other non-metallic mineral deposits of commercial value, or to confine it to such minerals as were known or supposed to be on the premises at the time. The grant or reservation of minerals in a deed contemplates substances to be severed arid taken way from the premises, and it is difficult to suppose that the parties to such a deed intended to exclude from- the grant any description of valuable mineral which would ■come within the legal meaning of the word, which might thereafter be discovered. We are of the opinion, therefore, that the words “ minerals and ores ” in the grant of 1871, standing alone, would include the granite upon the premises.

But these words do not stand alone, but are connected with a context which clearly indicates, in our judgment, that the parties had in view only such minerals as are to be got by mining in the •ordinary sense of that term; that is, by underground and not by open workings. The grantor, Baldwin, owned the fee of the land. He did not part with his general title to the surface, but he granted special rights therein for the purpose of effecting the grant of the “ minerals and mines." He accompanied these vsrords with a specification of the rights granted, that is to say, rights essential to and connected with usual mining operation, and in respect to the surface he granted “ sufficient land to erect suitable buildings for machinery and other buildings necessary and usual in mining and raising ores.” The evidence is, and the fact would be sufficiently manifest in the absence of affirmative proof, that granite can only be obtained by open quarrying to the destruction of the surface so far as the granite bed may be uncovered. We think the reasonable construction of the grant limits the rights of the grantee to minerals obtained by underground working, and as granite is not so obtained it did not pass under the conveyance of 1871. The principle of construction is stated by Turner, L. J., in a case already referred to, speaking of the question whether freestone was a mineral and included in the reservation in that case. He said it must be deemed included unless “either that the freestone is not a mineral, or that being a mineral, the nature or context of the deed shows that it was not intended to be included.” The context of the deed here furnishes, we think, the evidence that granite was not intended to be included. It may be that if we followed some English cases the conclusion would be that the granite did pass, but that it could not be taken by open quarrying. Bell v. Wilson, supra; Hext v. Gill, supra. Instead of recognizing this barren right we prefer to place our judgment on the ground that under this grant no title to the granite passed at all.

We have been referred to several English cases where the right, of open quarrying has been held to accompany a grant or reservation of mines and minerals. The cases generally have arisen on the construction of reservations contained in acts of Parliament of rights to landowners whose land has been compulsorily taken for public purposes or by public authority. In every case which has come to our attention involving the right of open quarrying, it has been sustained upon some special language in the act which indicated that the right of open quarrying was intended to be reserved. See Midland R'way Co. v. Checkley, supra; Midland R'way Co. v. Robinson, 15 App. Cas. 19; Id. 37 Ch. Div. 386; Atty.-Genl. v. Welsh Granite Co., supra; Earl of Rose v. Winman, supra. In Midland Railway Co. v. Robinson, 15 App. Cas. 27, Lord Herschell said: “In such agreements, in the absence of a. distinct indication of the contrary intention, it is always to be assumed that the reserved mines are only to be worked in such manner as is consistent with the surface remaining undisturbed. And if this be true of minerals lying deep below the surface, it would be obviously out of the question to permit it to be disturbed by winning minerals which can only be wrought by surface operations.” -

For the reason herein stated the judgment below should be affirmed.

All concujr.

Judgment affirmed.