text:
    Mary Murray, Appl’t, v. Arthur G. Fox and Buffalo Grape Sugar Co., Respt’s. Same Appl’t v. Same Respt’s.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Mortgage — Grantee in deed without covenant — Right of subrogation AGAINST MORTGAGOR.
    A grantee buying for a full consideration, but without covenants, land incumbered by a mortgage is entitled on payment of the mortgage debt to enforce the bond against the mortgagor.
    2. Release of one of several joint debtors — When does not discharge OTHERS.
    One of several debtors jointly, or jointly and severally liable for the same debt may be released in such manner and with such reservation as will preserve the right of recourse against the others even though sureties, when their rights and equities can be said to have been also preserved and left unaffected, the release becoming a mere covenant not to sue.
    3. Release from existing debts does not discharge future debts.
    A release from all existing debts matured and unmatured cannot be construed as operating upon debts non-existent but possible to arise in the future.
    4. Deed — Covenant of warranty — Effect of release of.
    The bare fact of a release of covenants of warranty for a valuable consideration does not compel an inference that the releasor assumed as his own a mortgage debt of the grantor.
    6. Same — Effect of release on mortgagor.
    Where the consideration of a release of the covenants contained in a deed is unknown and unexplained and may have been merely adequate to cover the technical breach of covenant already existing and no agreement or purpose of assumption is proved, the equitable duty of payment of the mortgage is not shifted, and the land is chargeable only as surety.
    6. -Same — Effect of covenants on rights of grantee.
    The taking of covenants in a deed does not impair or destroy the equitable right of the grantee to be protected against the forced payment of a debt which he has not assumed.
    7. Witness — When competent under Code Civ. Pro. § 829.
    An owner of the stock of the defendant company who was grantee in the deed was a competent witness to disclose personal transactions with plaintiff’s intestate under the circumstances of the case.

      8. MORTGAGE — EVIDENCE OF PAYMENT — NEGLECT TO DEMAND.
    Where a mortgage had been disregarded for more than ten years and left ■without any claim made upon the mortgagors (one of whom was dead) or even a demand for interest, although the security was abundant, for any existing indebtedness and the surviving mortgagor was responsible for and able to pay the whole of it, Held, that these facts indicating payment were entitled to very considerable weight.
    9. Same — To secure notes — Failure to produce notes evidence of PAYMENT.
    ¡ Where a mortgage recited an existing debt but was intended also as a continuing security for further advances which were to be evidenced by notes or business paper and no such note is produced or proved, its absence justifies an inference either that it never existed or was paid previously.
    Appeal from a judgment of the supreme court, general term, fifth department affirming a judgment of the Erie county special term in favor of defendants in actions brought to foreclose two mortgages.
    These actions were brought for the foreclosure of two mortgages. The first action is based upon a bond bearing the date of December 14th, 1867, executed by Arthur W. Fox to Hugh Murray in the penal sum of $15,000, and as collateral security for the payment of said bond Arthur W. Fox and Horace Williams and wife executed a mortgage running to Hugh Murray, bearing even date with the bond, whereby they mortgaged certain real estate situated in the city of Buffalo. Part of this land was owned by Fox, and part by Fox and Williams as tenants in common. The second action was based upon a bond bearing the date of December 17th, 1868, executed by the same parties as the aforesaid bond to the same party in the penal sum of $27,000 secured by a mortgage executed by the same parties as the first mentioned mortgage.
    Arthur W. Fox and Horace Williams were partners, doing business under the firm name of Fox & Co., and the debts represented by these bonds, it was claimed, were partnership debts.
    On January 10th, 1874, the mortgagors conveyed the real estate, covered, by these mortgages, to the defendant company, the deed containing covenants of warranty. In 1881, said company executed to Horace Williams and the representatives of Arthur W, Fox, he being then dead, the following release:
    “For and in consideration of a valuable consideration to it in band paid by Horace Williams, survivor of Arthur W. Fox, deceased, the Buffalo Grape Sugar Company has released and discharged, and by these presents does release and forever discharge, the said Horace Williams and the personal representatives, heirs at law, and next of kin of said Fox, from all liability of every name and nature, past, present, and future, on account of any of the covenants contained in the deed given by Arthur W. Fox and Horace Williams and wife to Frank Hamlin, dated November 10, 1873, and recorded in Erie county clerk’s office in Liber 337 of Deeds, on page 181, and on account of any breach of any such covenant, past or future ; and from all liability for any cause on account of any covenants contained in the deed from the same parties to the Buffalo Grape Sugar Company, dated January 10, 1874, and recorded in Liber 327, on page 109, in the same clerk’s office, or on account of any breach of any such covenant, past or future; and from all liability for any cause on account of any note, bond, covenant, bill, acceptance, account, or demand, action, and claim of action, whatsoever, now or heretofore held by said company against A. W. Fox & Co., Fox & Williams, or said Horace Williams, and especially on account of the note for §5,000, dated August 22, 1S74 ; the note for $5,000, dated July 8,1874; the note for $5,000 dated July 21, 1874; the note for $5,000, dated JunelS, 1874; the note for $5,000, dated June 8, 1874; the note for $5,000, dated July 3, 1874; the note for $4,500, dated July 6, 1874; the note for $1,-274.50, dated August 1, 1874; and on account of any other note, bill, or demand, of any name or nature, to the date hereof, or on account of any other cause whatever. And the said company hereby for a like consideration undertakes and covenants that it has not parted with or impaired the title to any such debts, and that it has good authority to release the same. But it is expressly understood and agreed that nothing herein contained shall operate to release or transfer the right of said company to exact, demand, and receive from Bobert G. Stewart trustee, its divisional share of the fund in his hands described in the complaint in an action brought by said Stewart against Horace Williams and others, and which action was tried before George Wardwell as referee.
    “ In witness whereof the said company has caused its official seal to be affixed hereto, and this release to be signed by the president and secretary of said company, the twenty-fifth day of January, in the year one thousand eight hundred and eighty-one. ■
    “ O. J. Hamliu, Prest, [l. s.] {l. s.] “Wm. Hamliu, Sec.” [l. s.j
    October 28, 1881, the plaintiff executed a release to Horace Williams as follows :
    “This release, made this twenty-eighth day of October, 1881, between Mary Murray, sole surviving administratrix of all and singular the goods, chattels, rights, and credits which were of Hugh Murray, late of Buffalo, deceased, of the one part, and Horace Williams, of said city of the other part.
    “ Whereas, on the fourteenth day of December, 1867, Arthur W. Fox, in his life-time, and the said Horace Williams, with Eliza, his wife, executed and delivered to the said Hugh Murray, in his life-time, a certain indenture of mortgage bearing date on that day, as collateral to the bond of Arthur W. Fox; and whereas, on the seventeenth day of December, 1868, the said Arthur W. Fox and said Horace Williams executed and delivered to the said Hugh Murray their joint and several bond and writing obligatory, bearing date on that day, in the penal sum of $7,000, and on the same day the same parties, with Eliza, the wife of said Horace Williams, executed and delivered to said Hugh Murray a certain indenture or mortgage, with like date, and conditioned as collateral to said bond; and whereas, on the twenty-ninth day of January, 1870, the said Arthur W. Fox and Horace Williams, with Eliza, his wife, executed and delivered to said Hugh Murray a certain other collateral mortgage of that date;. and whereas, on the twenty-eighth day of January, 1870, the same parties executed and delivered to said Hugh Murray and Cicero J. Hamlin a certain other collateral mortgage; and whereas on the fifth day of January,1870, the firm of A. W. Fox & Co., which was composed of said Arthur W. Fox and said Horace Williams, executed and delivered to said Hugh Murray their promissory note, bearing date on that day, payable to the order of said Hugh Murray, at the First National Bank of Buffalo, N. Y., thirty days afterdate, for six thousand and five hundred dollars; and whereas, on the third day of January, 1870, the same firm executed and delivered to said Hugh Murray their other promissory note for six hundred and ten dollars, payable in thirty days, at the bank aforesaid, to the order of said Murray; and whereas, there were other dealings-between the said Hugh Murray and the said firm of A. W. Fox & Co. and the firm of Fox & Williams, in all which the liability of said Horace Williams, if any, including the security aforesaid, was either several or joint with said Fox, or as a partner in one or the other of said firms, which have both been dissolved by the death of said Fox; and whereas, the said Horace Williams desires to compromise his said liability, and be discharged therefrom, and the said administratrix is willing to accept from said Horace Williams a certain sum in compromise of his said liability, without affecting or discharging any other party or security ; now this release witnesseth, that the said Mary Murray, as such administratrix as aforesaid, in consideration of one dollar to her in hand paid by the said Horace Williams, and in consideration of the premises, and of other good and lawful considerations, has discharged, and by these presents does forever discharge and release, the said Horace Williams from all several liability on account of said bond, mortgages, notes, and all other dealings whatsoever, and has discharged and by these presents does forever discharge and release, the said Horace Williams from all joint liability on account of said bond, mortgages, notes, and other dealings and demands in connection with said firms, or either of them, or for any cause whatsoever, jointly with said Arthur W. Pox or otherwise ; but not intending hereby to affect or discharge the liability of said Arthur W. Pox or his estate therefrom, or to affect or discharge any other security for any of said demands other than the personal liability of said Horace Williams.
    “ In witness whereof, the said Mary Murray, as such administratrix as aforesaid, has hereunto set her hand and seal the day and year first above written.
    “ Mart Murray, Adm’x.” [l. s.]

      H. F. Allen, and Ansley Wilcox, for appl’t; J. G. Milburn and A. Moot, for resp’t.
   Finch, J.

Tbe most important question in these cases grows out of tbe release executed by tbe plaintiff, which purports to discharge the party primarily liable for the mortgage debt from all responsibility for its payment.. The bond in the first action was executed by Arthur W. Fox, and secured by the mortgage of Fox and Williams. The bond in the second action was executed by both, and secured in like manner. The mortgages incumbered parcels of land which had been conyeyed by Fox and Williams to the Grape Sugar Company by a full covenant deed, and for a price which covered the full value of the incumbered fee, — a fact which the trial court found upon sufficient evidence, and which is inferable from the character of the conveyance, and the scope of the covenants contained in it. Fox and Williams were partners when the bonds were given, doing business, at first in the name of Arthur W. Fox, and later in that of Arthur W. Fox & Co., and each of' the bonds was given for and represented an indebtnesss of the partnership. That fact is also found by the trial court'upon evidence quite sufficient to sustain it. The mortgage covered other lands of Fox, in addition to that conveyed to the Grape Sugar Company, which, upon the death of Fox, descended to his heirs, who were named among the parties defendant in the foreclosure actions.

Williams, as survivor of the firm, in possession of its assets and liable for its debts, was thus left a primary debtor for the bonds in suit. An action upon two notes of the firm was brought in another state where he chanced to be, and resulted in negotiations for a settlement of his liability, which culminated in the payment by him to the administratrix of the mortgage of $13,500, upon an agreement of release and discharge, put in writing and formally executed, the construction of which is to be ascertained and determined. That instrument recites the two bonds and mortgages now sought to be enforced; the execution by Fox and Williams of two other collateral mortgages ; the delivery of two notes of the firm to the plaintiff’s intestate, — one for $6,500, and one for $610; the existence of other dealings between the parties; and the willingness of the administratrix to release Williams, without discharging any other party or liability; and then provides that Williams is discharged and released from “ all several liability on account of said bond, mortgages, notes, and all other dealings whatsoever,” and from “ all joint liability on account of said bond, mortgages, notes, and other dealings and demands in connection with said firms,” and concludes thus : “ But not intending hereby to affect or discharge the liability of said Arthur W. Fox, or his estate, therefrom, or affect or discharge any other security for any of said demands other than the personal liability of said Williams.”

Previous to the execution of this release, the Grape Sugar Company had discharged the Fox estate and Williams from all liability on their covenants of warranty; and assuming — what is denied, and must later be considered — that the corporation stood in the attitude of a grantee buying for a full consideration, but without covenants, land incumbered by a mortgage, and so entitled on payment of the mortgage debt to enforce the bond against the mortgagor, (Wadsworth v. Lyon, 93 N. Y. 208,) it follows that the release of Williams by plaintiff cut off and destroyed the equitable right of subrogation belonging to the surety, unless the latter right is saved by the reservation. It is undoubtedly true that one of several debtors jointly, or jointly and severally, liable for the same debt may be released in such manner and with such reservation as will preserve the right of recourse against the others, even though sureties, when their rights and equities can be'said to have been also preserved and left unaffected, the release becoming a mere covenant not to sue. It is strenuously insisted that such a rule of construction cannot possibly apply to the release of a sole debtor, not jointly liable at the time with any one, and that a covenant not to sue him must necessarily discharge and release the debt. Brown v. Williams, 4 Wend. 365. But there is room for debate as to whether the liability of Williams, originally joint with Fox, has become in all respects sole and several within the meaning of the authority cited; and we prefer to proceed with the inquiry as to the construction of the reservation. If, by its terms, the equity of the Grape Sugar Company to pay the debt in exoneration of its land, and then recover that amount from Williams, is preserved, then the release did not affect the surety, and left its liability unchanged. However astonishing such a result would be upon the facts proven in the case, and however difficult it may be to believe that Williams meant and intended to pay $13,500 for a mere covenant not to be sued by Murray, leaving himself liable for the full mortgage debt to the Grape Sugar Company, and so paying that large amount for a mere choice of plaintiffs, that must be the effect of the reservation, unless something in it indicates a different intent, and admits of a construction more in accord with the obvious purpose and understanding of the parties. There are such expressions.

The release discharges “ all liability ” “ on account of” such mortgages: not merely some, liability, — as, for example, that to a specific person, — but “ all ” liability “ on account of the mortgages; evidently meaning every possible liability of Williams which could in any manner, or at anybody’s suit, spring from the existence of .the securities. And this meaning is sedulously preserved and carefully guarded in the peculiar phraseology of the .reservation. As we read it, that reservation of the right to enforce other securities is not absolute and unconditional, and so inconsistent with what precedes it, but is limited and restrained precisely as we should expect to find it, having in view the situation and expressed purpose of the parties.' The intent is declared to be “ not to affect or discharge any other security for any of said demands other than the personal liability of said Williams.” That qualifying clause was inserted to preserve the full scope of the previous provision releasing Williams from all liability on account of, that is originating in or springing from the mortgages. The obvious meaning is that the releasor discharges no security which may be enforced without involving the liability of Williams, and preserves all such as can be enforced without bringing as a result recourse against him. He was to be entirely discharged at all hazards from every liability, direct or indirect, and those securities were to be preserved, and those only, whose enforcement was consistent with that primary and dominant purpose. Both parties may have believed that since Fox was sole obligor in one bond, Williams would stand as a surety mortgagor as to that, and so remedy could be had against the Fox heirs without a recourse over to Williams. Both parties, too, may have thought — -what, indeed, is' now asserted — that the mortgages could be enforced against the Grape Sugar Company without peril to Williams, by reason of its release of covenants, and so it is easy to see why the reservation was made, and its existing form. At all events it is limited and restrained, and the presence of the concluding phrase can have no force or explanation except to preserve the consistency of the instrument, and its full force as a discharge of Williams. Tins construction seems to us not only natural and reasonable, but fairly explains the large payment made by Williams, and redeems it from the level of a marvelous and absurd folly.

But the appellant contends that, even upon this construction, the rights of the Grape Sugar Company were not infringed, because it had already parted with those rights by its release of the Fox beirs, and of Williams, previously executed. That release contains substantially two classes of'provisions. It discharges the liability of the Fox heirs, and of Williams, upon the covenants in the deed, and then from all existing debts matured and unmatured. A large number of these resting in notes of $5,000 each are specifically mentioned, and a final covenant relating to the liabilities intended to be released, that the releasor has not parted with or impaired its title “ to any such debts,” indicates clearly that debts existing, and to which the company had title, were those referred to.

It is not admissible to construe the release as operating upon debts non-existent but possible to arise in the future. The argument on behalf of the appellant is that a release of the covenants ipso facto discharged the equities possible to arise in favor of the covenantee against the covenantor. If that be true, the bare act of releasing the covenants made the land principal debtor for the mortgage, and amounted to an assumption by the Grape Sugar Company of the mortgage debt. No such agreement or intent is contained in the terms of the release, and must exist, if at all, as an inference from the bare fact of a discharge of the covenants for a valuable consideration. I think that fact standing alone does not justify or compel the inference. If the actual consideration had been shown, and it had appeared that the covenantors paid to the covenantee the amount of the outstanding mortgages, or that for a less sum they agreed to take the perü of a foreclosure, the inference would follow. But where the consideration is unknown and unexplained and may have been merely adequate to cover the technical breach of covenant already existing, and no agreement or purpose of assumption is proved, I think the asserted inference does not follow, the equitable duty of payment is not shifted, the debt remains the debt of Fox and Williams, and the land chargeable only as surety. It Is said that an express covenant destroys or restrains an implied one. That is true, but there are no implied covenants in a deed to be destroyed or restrained. The statute forbids them, and that fact demonstrates that the equities of a grantee whose land has been sold for another’s debt rest not at all upon any implied covenant, but upon the just needs of the situation as they appeal to the conscience of the court. Unless then the equities of the situation are changed by the fact of the release they must necessarily remain. That the taking of covenants does not impair or destroy the equitable right of the grantee to be protected against the forced payment of a debt which he has not assumed has been often decided, and is established by the eases which on a foreclosure have preserved to the grantee, although holding covenants of warranty, the equitable right to have the lands of the grantor covered by the mortgage first sold and applied to its payment. If one equitable right survives the taking of covenants — Clowes v. Dickenson, 5 Johns, ch. 235; Skeel v. Spraker, 8 Paige, 195 — why may not another? It is possible that an equitable right precisely equivalent to the legal right on the covenants might prove to be suspended during the existence-of such legal right, simply because equity does not waste its resources or act without necessity, but the equity would be merely suspended and not killed. Its death could only come from such a change in the relation of the parties as would throw justly upon the grantee the burden of the debt.

And so the question comes back, and seems to me to be the-ultimate inquiry, whether the bare fact of a release of covenants-of warranty, for a valuable consideration, compels an inference-that the releasor assumed as his own a mortgage debt of the grantor. I think not. Something more must appear to warrant the inference. In the present case, other and entirely different-purposes may have occasioned the release. There may have been defects in the title not here disclosed, and which the parties had principally in view ; it may have had reference to the technical breach which already existed ; or, what is more probable, it may have been given and received on the supposition that the grantors had already paid and settled the mortgage-debt, or, if not, that the releasors would have ample protection against loss in the very equities which they now invoke. For these reasons, I cannot accede to the inference sought to be drawn; and since the equity remained, and the necessity for its protection has come, I think it may be enforced.

From these views of the two releases it follows that the liability of the Grape Sugar Company in respect to its lands bound as surety was discharged; that Hamlin, although a large owner of its stock, was competent to disclose personal transactions-with plaintiff’s intestate, since he was not examined in his own behalf; that he was a competent witness on the question of payment for the Fox heirs; and they are discharged by the finding of fact that the mortgages have been paid.

But there is a further view of the case, leading to the same result, and perhaps desirable to be taken in deference to some doubts existing among us. The Grape Sugar Company and thn Fox heirs answered- separately, and each pleaded payment. Evidence was given tending to establish that fact, outside of the testimony of Hamlin. His testimony, when offered, was objected to under section 829 of the Code, and received explicitly in behalf of the Fox heirs alone, and excluded as to the-Grape Sugar Company. Nevertheless, the trial court found the-fact of payment generally and without distinction among the defendants, and not specially in behalf of the Fox heirs alone. That finding, therefore, must be construed to be, so far as the Grape Sugar Company is concerned, that, upon the evidence received in its behalf, and so excluding that of Hamlin, the payment of the mortgages was established. We must not construe the finding of the learned trial judge into an inconsistency unnecessarily. He refused to hear Hamlin on behalf of the Grape Sugar Company, and yet, in its behalf, as well as in that of other parties, he finds the fact of payment. He must, therefore, have found it upon the proof given outside of and excluding the testimony of Hamlin. The judge who dissented at general term realized the situation in that respect, and insisted that “ without placing full and implicit reliance on the evidence of this witness, it is difficult to see how the issue on the question of payment could have been found in favor of the defendants who rely on that particular defense.” » The learned counsel for the appellant also insist that the finding of payment is not supported in behalf of the plea of the sugar company, for whom Hamlin was not permitted to testify. A study of the evidence leads us to the conclusion that enough appeared to sustain that finding in its application to the Grape Sugar Company.

The trial judge very properly took into account, in approaching a consideration of the evidence that both Murray and Fox were dead, and the mortgages had been disregarded for more than ten years and left without any claim made upon them, or even a demand for interest, although the security was abundant for any existing indebtedness, and Williams was responsible for and able to pay the whole of it. Bean v. Tonnele, 94 N. Y., 385. Under such circumstances precise and direct evidence of payment was hardly to be expected, and the facts indicating it .are entitled to very considerable weight. The first mortgage recited an existing debt of about $5,600, but was intended also :as a continuing security for further advances. These, however, it was sufficiently declared were to be evidenced by notes or business paper, and no claim not so evidenced was within the .scope of the security so far as it covered future advances. The same characteristic is found in the second mortgage. The complaint in the first action described the existing debt as a loan of $1,500, one of $2,600, and one of $1,500, the latter made at the execution of the mortgage, and the former one and two months earlier. No note or memorandum of these was produced by the representatives of Murray, and while it is possible that none was ever given, the course of business, as proved by Damon, and indicated by the recitals, makes it probable that they were given, so that their absence becomes in some degree significant. The papers of Fox & Co. were burned and destroyed, which accounts for non-production by them, but those of Murray passed to his representatives. To the amount of debt existing at the date of the first mortgage theie is added by the complaint an accommodation note of $600, made half a year later. No such note is produced or proved, and its absence justifies an inference either that it never existed, or was taken up on payment.by Fox & Williams. At tbe date of tbe second mortgage there was apparently due on the first mortgage with its interest about $6,000. That second mortgage recites an existing indebtedness of $13,500 and covers additional parcels of land, and adds Williams as co-obligor in the bond, which were the probable reasons of its execution. Presumably that consideration included the $6,000 of original debt and an accumulation of $7,500 more but that accumulation was to be evidenced by notes or business paper, none of which, ante-dating the second mortgages, is produced, and the inability to produce it indicates its .payment.

A note of $6,500 and°one of $610 are produced, but these only. They are dated in 1870. The large note appears from the evidence of Damon to have represented an unpaid check drawn by Fox in February, 1868, upon which interest was paid until 1869 and which afterward went into the account of bills payable. What this check was given for we do not certainly know. It does not prove a loan made at its date but presumes a pre-existing debt. The only such debt disclosed is the $6,000 secured by the first mortgage. The check was outstanding when the second mortgage was given, and so must have been,, at least, a part of the $13,500, and inferentially identical with that part of it which constituted the consideration of the first mortgage if that was still unpaid. Whatever it was, it has been paid and canceled together with the note of $610. And that these two notes which constitute the only items of business paper in Murray’s possession represented the sole indebtedness of Fox & Co., at the date of Murray’s death is quite strongly indicated by another set of facts. Hugh Murray died, according to the complaint, in August, 1870, and when the widow, with her son and son-in-law, were about starting for Chicago, Mr. Fox said to her that whenever she wanted money she need not wait for the interest to become due, but might draw for it, and he would send it to her. She had all her husband’s papers, both the mortgages and notes. Her son and son-in-law were not unintelligent or blind to her interest or their own. Fox did not tell them the amount of his debt. He assumed that they knew, as they probably did. From that time on till 1874 the widow, through her son and son-in-law, drew semi-annual drafts for interest of $250 each, which Fox paid; the amounts indicating-almost precisely an understood principal debt in the sum of the; two notes produced. The trial judge adverts to the improbability that a business man like Murray, shown to have collected interest monthly, and at very high rates, would have suffered it to accumulate, and to the circumstance that Murray himself signed, a paper which postponed these mortgages, and gave precedence to one executed to himself and Hamlin. While the facts and inferences thus sketched are not beyond dispute and criticism, and are claimed to be explainable or inaccurate, yet we are of opinion that enough appears from the survey to show that the finding of payment had an adequate foundation upon so much of the evidence as was suffered to be given in behalf of the Grape Sugar Company; and we are not at liberty to suppose that payment would have been found generally and in behalf of both parties pleading it, if, as to one, no satisfactory evidence had been given. At least there was some evidence outside of Hamlin tending to support the finding and so to the benefit of that finding the Grape Sugar Company is entitled.

The judgment should be affirmed, with costs.

AH concur, Andrews, J., on second ground set forth in opinion.

       Affirming 39 Hun, 108.


source: Caselaw Access Project

author: Finch, J. Andrews, J.,

license: Public Domain

text:
    People of the State of New York, Resp’ts v. Peter Smith, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Evidence — Dyihg declabations — Peeliminaby examination.
    When the admission of the dying declarations of the person who was killed is brought in question on the trial of the indictment against the person accused of causing the killing, it becomes the duty of the court to determine as a preliminary issue whether the alleged declarations were made by the deceased under a conviction of approaching and imminent death, and such necessary preliminary examination may in the discretion of the court be conducted in the presence of the jury.
    2. Same — Extent oe peeliminaby examination discbetionaby — Reviewable.
    The general rule for the guidance of the trial judge in exercising his discretion is that he should confine the preliminary examination to the facts relating to the declarant's condition of body and mind at the time. How far the examination should extend in order to ascertain with accuracy and reasonable certainty the mental condition and belief of the declarant will remain discretionary with the trial judge in each case under its own peculiar circumstances. The exercise of that discretion is reviewable by the general term but not by the court of appeals, except in extraordinary cases.
    3. Same — Extent to which tbial judge may examine.
    After the people had laid what they deemed a sufficient foundation for the admission of the dying declaration; the trial judge pursued the inquiry, embracing many facts not coming within the class of facts which may be proved by dying declarations, stating that none of it was to be admitted yet. Subsequently he directed part of the evidence taken to be read as evidence of dying declarations and the rest to be stricken out. Held, there was no abuse of discretion. That the part stricken out never went to the jury. (Andrews and Peckham, JJ., dissenting.)

    Appeal from a judgment of the supreme court, general term first department, affirming a judgment on conviction of defendant under an indictment for murder in the first degree.

      Randolph B. Martino, dist. atty., for resp’ts; Arthur C. Palmer and John O’ Brien, for appl’t.

       Reversing 41 Hun, 641 mem.

   Finch, J.

We all agree in this case tbat no error was commit-ed upon the trial, unless as to the single point which, in the opinion of ANDREWS, J., is deemed sufficient ground for ordering a new trial. That opinion states fully and accurately the facts disclosed by the proofs, and shows that the killing was admitted, and the only issue that remained was whether the fatal shot was accidental or intentional. It further holds that, when the admissibility of the dying declarations of Hannon was brought in question, it became the duty of the court to determine, as a preliminary issue, whether the alleged declarations were made by the ^deceased under a conviction of approaching and imminent death, and that such necessary preliminary examination might, in the discretion of the court, be conducted in the presence of the jury.

When the dying declarations of Hannon were offered by the prosecution, the defense objected, upon the ground that they were not such. The trial judge answered, in substance, that he could not determine that question until he knew whether or not they were made in anticipation of approaching death. The defense then claimed a right to cross-examine upon that point.” The judge answered, “ Not just yet,” and fiiially said, before the preliminary examination began, “ When the district attorney gets the statements of the witness, you may cross-examine, and I will then determine whether it comes within the rule.” At this stage of the case, there seems to have been no room for a misunderstanding as to what was at the moment before the court. It was an issue of law, to be determined by the court upon facts addressed to it, and with which the jury had nothing whatever to do. The defense so understood it; for they sought to enter at once upon a cross-examination of the witness on that point. Everybody understood that the admission of any declarations of Hannon was stayed and barred until, upon the examination by the prosecution and the cross-examination by the defense, the issue of admissibility should be tried and determined by the court. During trial of that preliminary issue the jury stood merely in the attitude of spectators. They had no concern with it, and knew from the statement of the court that they had not. They understood that out of its result something might come before them as evidence, or nothing, and that, until the judge ruled, the facts developed were for his consideration, and not for theirs. The fact that their presence was not error shows that, in the judgment of the law, a jury must be deemed capable of that amount of discrimination at least. And thus the trial of the preliminary issue before the court was entered upon with the complete knowledge and understanding of all parties.

The district attorney proceeded at once to the precise point, and proved the statement of Hannon to his mother that he was “ going to die.” At the close of about one-half of a printed page directed to tiie issue before the court, the prosecution said: “ Now we think we have laid the foundation for declarations.”. The judge seems not to have been entirely satisfied. The mother had given to her son the doctor’s assurance that he would get well. It had produced no apparent effect at the moment; but who could tell that, if the rest of the conversation occurring thereafter should be disclosed, there might not appear a hope of recovery born of that assurance, or a spirit of hatred and revenge inconsistent with the solemn truths of statements in the presence of death ? The prosecution had obtained enough for its purpose; but the court had a duty to its own conscience,— a duty not to be hasty or to be misled, and to make sure that it fully and correctly understood the frame of mind of the deceased. The learned judge, therefore, continued the examination, and at some point the district attorney apparently aided in its progress until the witness had . disclosed, not a selected part, but the whole of what deceased said to her during the last two days of his life. Near its close, Hannon spoke of the influence of Sweeney with the police. The prisoner’s counsel asked the court, “ Will you admit this ? ” to which the judge replied, “ I have not admitted anything yef; I want to hear the whole statement made by the deceased before I determine whether I will or will not allow the alleged dying declarations in evidence.” Nothing could be plainer or more direct than this. All that had been said by the witness was thus again declared to be purely tentative and preliminary, not yet evidence in the case, and wholly directed to the enlightenment of the court in the performance of its duty. The statement, thus interrupted, was thereupon finished in a single sentence more, of about half a dozen lines. So far, no evidence of Hannon’s declarations had been admitted at all. They had been repeated for the information of the court, to enable it to perform the duty of ruling whether any, and if so what, portion of them was competent evidence to be submitted to the jury. Until some such ruling was made there could be nothing to which the prisoner could except as constituting legal error.

What followed was in some respects out of regular order. The district attorney, dropping the entire subject of the conversations with the deceased, proceeded to examine her, not upon the preliminary issue, but upon matters relating to the main issue, and belonging to the consideration of the jury. It would have been more regular to have first finished the preliminary issue. The prisoner’s counsel, however, seems to have acqui esced. He had been told that he could cross-examine upon the preliminary issue when the prosecutor had finished. That time proceeding, to interpose, and assert the right which the court had promised to give him, and ask a decision of the preliminary had promised to give him, and ask a decision of the preliminary issue before the trial proper was resumed. He did not do so. .He chose to sit silent while the added proof, competent upon the main issue, was being submitted to the jury. When the district attorney closed his examination of the witness, the prisoner’s counsel asked three not very important questions, and then .turning to the court, said: I move now to strike out all the evidence given by the witness in regard to the interview with the deceased, on the ground that it is inadmissible, for the reason that the necessary foundation has not been laid for such declarations.” This motion was singularly inapt, except for one purpose. As no declarations had yet been received in evidence, there was none to strike out; and the objection was to the whole of them, when some were beyond doubt admissible. If the purpose was to draw from the court the admission that they had been received, or an assent to such a claim, that purpose-failed, for the court said, in answer to the motion: “ As I understand the position of the matter now, it is this: Mr. O’Brien claims the right to cross-examine the witness in reference to what will he claimed hy the district attorney as evidence of dying declarations for the purpose of ascertaining whether it is admissible. Are you cross-examining on that point ? ” The prisoner’s counsel replied : “ I am not; I am in a general cross-examination.” The answer suggested to the judge the possibility of some confusion, for he at once said: “ you may enter on the record that the court will now permit the defendant’s counsel to cross-examine the witness before passing upon the question of the admissibility of the alleged dying declarations made by the deceased to the witness as testified to by her.” To this the prisoner’s counsel said: “ We cannot be estopped by any such record as that: it is a monstrous proposition.” Why that should have been said after what had occurred, it is difficult to say. We do not mean to criticise the counsel, who bore the heavy responsibility of his client’s life, or misinterpret his zeal; but, at least, we differ from him entirely. We see in the action of the trial court a steady purpose to keep the evidence of declarations out of the case until, at a proper and suitable time, it should be determined what, if any, were admissible.

The counter-effort seemed to be to insist that the court stood in.the position of having admitted in evidence what it is clean was never admitted at all. The cross-examination then proceeded. Before it closed, it reverted to the declarations of the deceased, which had been repeated to the court. The witness was asked if she recollected the interview clearly; if she thought her son was dying; why she did not send for a priest on Wednesday; what was the subject-matter of deceased’s conversation on Thursday; and what was the whole conversation between them. As the witness began to repeat it, the counsel suddenly closed bis cross-examination. The court then asked if it was finished, and, receiving an affirmativé answer, proceeded to determine the preliminary issue, and decide what portion of the statement of the witness to the court should be admitted, and directed the stenographer to read to the jury, and he did read to them, “ so much and such parts thereof as are embraced within black lines,” and marked on the margin, “ allowed to stand as evidence of dying declarations,” and ordered the balance to be “ stricken from the evidence,” and, in view of what had occurred, took the added pains to caution the jury to disregard what they had heard repeated, but what the court decided it would not admit. Upon this state of the facts I cannot resist the conviction that the declarations of Hannon now objected to were never admitted in evidence, but wholly excluded; and that the case is not at all one in which erroneous proof was first admitted, and then sought to be stricken out, but one in which no error of admission existed which required correction. It seems sufficiently evident, also, that any doubt on the subject, and any confusion or mistake as to what was being done, was steadily and persistently guarded against by the court, and the admissibility of the proposed evidence determined as soon as it could be done consistently with the right of cross-examination reserved to the defense.

Since there could be no valid exception to the admission of evidence which was never admitted, the only possible inquiry becomes whether the action of the court in acquiring the needed information on which to rule is itself the subject of our review. We do not see how it can be. It rests in the judicial discretion. It never goes to the jury except so far as admitted. Some means of information the court must have. The suggestion made is “ that- it should have confined the preliminary examination to the facts relating to the declarant’s condition of body and mind at the time.” That proposition, stated as a general rule for the guidance of trial judges in exercising their discretion, need not be doubted; but the inquiry will remain in each case, under its own peculiar circumstances, how far the examination should extend in order to ascertain with accuracy and reasonable certainty the mental condition and belief of the declarant. The exercise of that discretion was reviewable by the general term, but is beyond our jurisdiction, unless we can see that such discretion was abused, and the action of the court arbitrary and without reason. We cannot say that. There was a motive that might fairly have operated upon the judicial mind to push the inquiry beyond the point at which the district attorney paused, and that motive was, as we have already suggested, to ascertain whether the assurance of survival which the deceased had been told the doctors had given, became at any time so operative upon Mm as to awaken a hope of life. With that circumstance before it, the court might reasonably conclude that a part of what was said would scarcely furnish as safe a basis of judgment as the whole. We can readily see that the determination of the court to hear all that the deceased said, before deciding whether any of it was admissible, should not be deemed arbitrary or an abuse of discretion under the existing facts.

Suppose that it had turned out, as from what appears seemed quite possible, that the very last thing said by Hannon, relating not at all to the facts of the shooting, had shown the presence of a lurking but confident hope of recovery. Singularly enough, the prisoner’s counsel illustrates the force of what we are saying by claiming in his able brief precisely such a result. He plants himself on the very last words of Hannon, which closed the conversation with his mother, and which were about Sweeney and the police, and argues that they show a hope of recovery. Hannon said: “ I am afraid, mother, you will get no satisfaction for your son.” She replied; “Johnny, that can’t be so.” He answered : “ I hop>e so, mother, because I would like to go agin them fellows.” The counsel claims that the expression does bear somewhat upon Hannon’s frame of mind, and yet, without what preceded it, its occasion, and even its accurate meaning, might be lost to us. -It does appear to have been deemed sufficiently material by the learned trial judge to have affected his judgment; but he could not have known that in advance; and it is easy to see that it might have assumed a form which would have been very material. The hope of survival, the lingering belief that death is not inevitable, may disclose itself to an observant mind where even the witness does not see it, and may come to the surface when the talk is far away from the facts of the killing, and from the res gestee. The suggestions show that the action of the court was, at least, not arbitrary, and without some apparent reason, and so its discretion was not abused. The general term, which had the power to review it, has held that the rights of the prisoner were not prejudiced, and its conclusions must therefore prevail.

The judgment should be affirmed.

Ruger, C. J.,Earl and DaNeoeth, JJ., concur. Andrews, J., reads dissenting opinion for reversal, and Peckham, J., concurs. Rapadlo, J., absent.

Andrews, J.,

(dissenting). — The defendant was jointly indicted with one Alexander Sweeney, in the court of general •sessions in the city of New York, for the murder of John Han-non, by shooting with a pistol, April, 1885. He was separately tried, and was convicted of murder in the first • degree. The transaction took place at about 6 o’clock in the evening, at a shanty at the foot of Thirty-eighth street in the city of New York, where the deceased was employed as a watchman in the street-cleaning department. The deceased was at the time sitting or lying on a bench in the shanty, and a man named Tracy was in the room, sitting by and leaning upon a table, Tracy saw Smith and Sweeney enter the door, and he pretended to be asleep. He testifies that they had some conversation in a whisper, which was followed almost immediately by the report of a pistol, and they then turned and left the place. Tracy, seeing that Hannon was shot, followed the two men, and pointed them out to officers, who arrested them. The shooting was done on Tuesday evening. Hannon was taken the same evening to Bellevue Hospital, and died there the Saturday following. It was found that a ball had penetrated the skull over the right eye, entering the brain. There was no controversy on the trial that the shot proceeded from a pistol in the hands of the defendant. The defense was that the shooting was unintentional and accidental. The testimony of the defendant, who was sworn as a witness in his own behalf, tended to support this explanation.

The theory of the prosecution was that it was a deliberate and premeditated murder, committed by Smith and Sweeney, acting in concert, from enmity, each having a grudge against the deceased. The prosecution, in support of this- theory, proved that Smith and. Sweeney had known each other from boyhood, and were intimate friends, and were also acquaintances of the deceased. For the purpose of showing the hostility of Sweeney to the deceased, the prosecution was permitted, against the objection of the defendant’s -counsel, to show that a fight had occurred between them on the day before the homicide. It was also shown by the evidence of the mother- and sister of the deceased that, about two years prior to the homicide, an altercation took place between the defendant and the deceased, during which the former drew a pistol, and that on that occasion the defendant threatened to kill Hannon, “ if it is 20 years to come.”

The people, further, to support the indictment, offered evidence of declarations made by the deceased to his mother at the hospital on Wednesday morning, the day after the shooting, and also to his sister on Thursday morning. The principal and serious allegations of error relate to this evidence — First, as to whether the declarant made the declarations under a sense of impending death, within the rules governing the admission of dying declarations; and, second, whether the court committed a legal error in permitting declarations of the deceased to be proved in the first instance, not relating to the immediate circumstances of the death, and which the court subsequently ordered to be stricken out.

In respect to tbe first question, viz., whether the deceased at the time of making the declarations was in such condition of body and mind, and had such a sense of impending dissolution as to make his dying declarations admissible as such, we entertain no doubt. As the sequel proved, he had received a mortal wound. His conversation with his mother indicated that he considered his condition hopeless. He said: “ Yes, mother, I am shot. Mother, will you take me home ? The Bellevue people are good. They are good enough j but they can do nothing for me.” The mother said : “ Johnny, the doctor don’t say so; the doctor says you will get well.” He said: “ Mother, lift me up; kiss me, kiss me, because I am going to die. The bullet that Pete Smith put in my head, it is in it, and it will fetch me, and leave you without your only son.” There was other conversation not necessary to repeat. Suffice it to say that all his statements as to his condition indicate that, both on Wednesday and Thursday mornings, he had a settled conviction that he was fatally wounded, and that death was imminent.

It would not be profitable to go over the cases as to the preliminary proof necessary to entitle dying declarations to be given in evidence. Each case differs in its circumstances, and the cases are not all reconcilable. The rule admitting dying declarations is anomalous, and courts are strict in requiring that, before admitting them, it shall be made clearly to appear that the declarant was in fact resting under the shadow of death from the fatal stroke, and so believed, entertaining no hope of recovery. The circumstances proved in this case bring it within the rule according to the best-considered authorities. Reg. v. Howell, 1 Car & K. 689; Queen v. Reany, 26 Law J. M. Cas. 48; Reg. v. Jenkins, 11 Cox, Crim. Cas. 250; Reg. v. Peel, 2 Fost. & F. 21; 3 Russ. Cr. (4th Eng. Ed.) 250 et seq.; 1 Greenl Ev. c. 9.

The more serious question arises in respect to the alleged error of the court in admitting declarations made by the deceased in relation to matters not the proper subject of proof by dying declarations. The course of the trial upon this point, as disclosed by the record, was this: The mother of the deceased, on being called and sworn as a witness for the people, was asked by the prosecuting attorney to state the conversation she had with the deceased at the hospital on Wednesday morning. The defendant’s counsel interposed an objection that it was not “in the nature of an ante mortem, and was inadmissible.” The court replied: “ I cannot determine whether it is or not till I hear it.” On the defendant’s counsel repeating the objec-' tion, the court stated: “ Mr. Palmer, rather than you should interrupt at every question put to the witness, you may consider an objection and exception to every question put to the witness.” The witness was again asked to state the conversation, when the defendant’s counsel asked tbe court if it had decided to admit declarations of Hannon when not in fear of imminent death, and the court replied that it had not, adding: “ How do I know as yet but that they were made in anticipation of immediate death ? ” The defendant’s counsel then asked to be permitted to cross-examine the witness on that point: but the court denied his request, saying that when the district attorney got the statement of the witness the defendant’s counsel could then cross-examine, and the court would decide whether it came within the rule; and to this ruling an exception was taken. The district attorney then proved by the mother the declarations of the son heretofore stated, and said: “ Now I think we have laid the foundation for declarations.” The court then took up the examination of the witness, and she proceeded, in answer to the questions of the court and the district attorney, to give testimony occupying four printed pages of the case, narrating the whole conversation with her son. Much of the evidence was elicited by answers to the specific questions as to declarations having no relation to the res gestee of the homicide.

After an examination of the witness covering 20 printed pages, embracing many subjects other than the interview at the hospital, the court directed the stenographer to read to the jury from his stenographic notes a part of the evidence of the witness pointed out by the court of the conversation with her son, which embraced the evidence which has been detailed, showing Hannon’s expectation of death, and also his declarations as to the circumstances of the murder, and directed that the further evidence of the witness of what transpired at the interview should be stricken out and disregarded by the jury. The portion of the evidence directed to be read to the jury is inclosed in black lines in the error book, and occupies about a printed page of the testimony of the witness. Following the testimony admitted, is the testimony stricken out, which occupies three printed pages.

In the testimony stricken out is the following : To a question by the mother, “ Johnny, what did they shoot you for ?” the deceased replied, “ Very little cause, mother ; but Pete Smith has promised me this for a long time.” To another remark by the mother, “ Johnny, horv early they went down to shoot you,” he replied, “ That was their best chance, mother, because the carts never came in with their first loads before seven or half-past seven in the evening. Smith and Sweeny knew the time the loads came in just as well as I did; they thought they would catch me alone.” The mother asked: “ How came Tracy to be with you, Johnny ?” He answered : “Because I asked him to remain with me all night. I was afraid. I asked Tracy to stay with me. He said he would stay. I asked William Curry to remain with me the night before. He also did stay. Mother, I think I would get shot Tuesday morning only for haying William Curry with me.” The mother asked : “ Johnny, why do you think that ? ” He replied : “ Because Sweeny and another man came down in the morning between five and six, I think it “’as.”

The particulars of the interview between Sweeny and deceased on Tuesday morning, as related by the latter, were then called out by specific questions by the district attorney. It appeared from his statement to his mother that Sweeny called the deceased out of the shanty, and Sweeny said : “ What talk have you had about what you can do to me and Smith?” The deceased replied : “ I have no talk about what I can do to you.” Sweeny then called him a liar, and on the deceased saying, “ If you want any more satisfaction, I am man enough for you, if I only get fair play.” Sweeney said, “ We will not mind it now; we will have another time to fix this.” Further declarations of the deceased were proved to the effect that Sweeney and Smith had relatives in the police force, who would be able to prevent the mother “ getting any satisfaction for her son.”

We are of opinion that the court committed a legal- error, under the circumstances, in permitting proof of declarations of deceased in respect to facts not coming within the class of facts which may be proved by dying declarations from the record, and directing the jury to disregard them. There is no doubt of the proposition stated by the counsel for the people, that the question whether circumstances exist which make declarations admissible as dying declarations is a preliminary fact to be determined by the court, and that it cannot be left to the jury to say whether the deceased thought he was dying or not; for that must be decided by the judge, whose decision is reviewable on error, before he permits the declarations to be given in evidence. This was decided at a conference of all the judges of England in 1790, and has been generally accepted as'the rule in this country. 3 Russ. Cr. (4th Eng. Ed.) 266, and cases cited; Donnelly v. State, 26 N. J. Law, 463; 1 Whart. § 681. It is a necessary result of this doctrine that the court must in the first instance hear the evidence bearing upon the condition of the declarant, and his sense of impending death. If on this inquiry the court determines that the circumstances justify the introduction of dying declarations, then, on their being offered, the question whether they relate to facts which may be proved by dying declarations arises, and is to be determined by the court in the ordinary way.

It is also well settled that dying declarations relating to transactions prior to the homicide, and not a part of the res gestae, are not admissible. The rule is stated by Abbott, C. J., in Rex v. Mead, 2 Barn. & C. 605, in language often quoted with approval, “ that evidence of this description is only admissible where tbe death of the deceased is the subject of the charge, and the circumstances of tbe death the subject of the dying dec-, laration.” 1 Greenl. Ev., § 156; People v. Davis, 56 N. Y., 95; Insurance Co. v. Mosley, 8 Wall., 397. The declarations of Hannon, to which we have referred, which were stricken out by the court, were clearly inadmissible under the rule, and were calculated seriously to prejudice the defendant. They supplemented with great force the evidence tending to show concert, deliberation, and premeditation. We think it was the duty of the court to have confined the preliminary examination to the facts relating to the declarant’s condition of mind and body at the time.

The whole examination was taken before the jury in the ordinary manner of taking testimony on the trial of an issue. It was, we think, the duty of the court, in fairness to the prisoner, and that a discreet administration of the criminal law required the court, to have called the attention of the witness, on the preliminary inquiry, to the particular point to which the inquiry was directed, and not to have permitted her to testify to declarations, not only irrelevant to the preliminary fact, but inadmissible on the main issue. The court not only omitted to call the attention of the witness to the point, but refused to permit the defendant’s counsel to examine her on the preliminary question until after the examination of the district attorney, covering the whole interview, had been concluded. The testimony stricken out was received after all the testimony admitted bearing upon the preliminary inquiry had been elicited. The part stricken out was evidence received subsequent to the evidence retained. It might happen that- a witness called to testify to dying declarations might, on the preliminary examination, through ignorance or want of discrimination, intermingle declarations as to the condition of the deceased with declarations relating to the crime. Such prejudice as the defendant might suffer in such a case he would have to bear as an unavoidable incident of the trial. But that is not this case.

We think the judge erred, and that, according to the suggestion of the court, made to counsel on the trial, an exception must be deemed to have been taken to the objectionable evidence and we think it quite clear that the error was not cured by striking it from the record, and instructing the jury to disregard it. Erben v. Lorillard, 19 N. Y. 299; Allen, J., Lindsay v. People, 63 N. Y. 154; Furst v. Second-avenue R. R., 72 N. Y. 542.

The judgment and conviction should therefore be reversed, and a new trial granted.

Peckham, J., concurs.


author: Finch, J.

text:
    People ex rel. Rome, Watertown and Ogdensburg Railroad Company, Applt’s, v. Parley Haupt, et al, Assessors etc., of the Town of Somerset, Niagara County, Resp’ts. Same Appl’ts v. Peter Smoyer et al Assessors etc., of the town of Wilson, Resp’ts.

      (Court of Appeals

      Filed March 1, 1887,)
    1. Taxes and Assessments — Effect of delay in delivery of assessment roll — Laws 1880, chap. 269.
    The failure to deliver the completed assessment roll of a town to the town clerk or other proper officer until twenty days after the 1st of September as required by Laws 1880, chap. 269, § 9. does not vitiate the assessment.
    2. Same — Publication of notice of delivery — Effect of failure.
    The omission of the assessors to publish the notice of. the delivery of the ■ assessment roll to the town clerk does not affect the validity of the assessment, but the right to review by certiorari remains unlimited as to time.
    Appeal in four eases from an order of the supreme court, general term, fifth department, affirming an order of the special term quashing a writ of certiorari to review the assessment of the property of the relator by the assessors of certain towns.

      Edmund B. Wynn, for appl’ts ; E. Brundage and Ellsworth & Potter, for resp’ts,

       Affirming 6 N. Y. State. R.

   Finch, J.

The papers in four appeals from orders quashing as many writs of certiorari, and in another similiar case not before us, are. printed for our use with a disorder and confusion scarcely to be excused. With the aid of the briefs .of counsel we hope that we have been enabled to understand and appreciate the question sought to be raised.

The general term say that no questions of law, and only questions of fact, were presented by the appeals ; but in the brief of the appellant we find three errors in the assessments alleged and relied upion as sufficient to vitiate the tax imposed. One of these is that the assessors of the town of Wilson did not meet to hear complaints on the third Tuesday of August, 1883, but met for that purpose only on the thirty-first of that month; and that the fact appears in the copjr o:f ¡ their notice, marked “ Exhibit II.” The fact so appears in the printed copy of that notice; but a stipulation signed by counsel for both parties certifies that the date of August 31st is a misprint, and should read August 21st. The ground of objection, therefore, disappears.

It was charged in one of the petitions that the assessment roll of the town of Wilson for 1883 was not finally completed and verified by the assessors, and delivered to the town clerk or other officer to whom such roll is required by law to be delivered, on or before the first day of September, 1883. No proof was given on the subject, but the admissions of the return are relied on. Those show that the assessors met to hear complaints on the third Tuesday of August; that from that day until the twentieth day of September the roll remained in possession of Cooper, one of their number, “ open to inspection,” and on that day was “ left completed and verified with the town clerk.” The admission goes no further than the date of delivery to the town clerk, and does not show that the roll was not completed and verified on or before September 1st. An extract from the roll is all that is printed; the printing of the roll and assessor’s affidavit having been waived. The delivery of the completed and verified roll is required, by section 9 of the act of 1880, to be made to the town clerk or other proper officer “ on or before the first day of September.” The return shows a delivery 20 days later. Such delay did not vitiate the assessment. The provision is directory; and since the relator had his 15 days after the delivery to the town clerk within which to sue out his writ, and did actually do so, we cannot see how it has suffered any prejudice from the delay. The town clerk returns that, after its delivery to him, it remained open for inspection in his hands for the required 15 days. The return shows that the roll, which we must assume was completed and verified on or before September 1st, remained open to inspection in the hands of one of the assessors until the 20th, and then, after due notice, so remained for 15 days in the hands of the clerk. We should sacrifice substance to form if we held that such a mistake vitiated the whole assessment.

The question under the act of 1880 assumes a different form as it respects the town of Somerset. Apparently the assessors of that town never published a notice of the delivery to the town clerk at all. The sole object of that provision, however, appears to be to set running the 15 days within which parties aggrieved may sue out their writ. Section 2. If the notice be not given, the right to review by certiorari remains unlimited as to time. The 15 days are not set running. The consequence of the omission cannot be fatal to the validity of the assessment, but leaves the door open for a review unlimited as to time. The assessment, lawfully made and completed, did not become “ illegal ” by the omission of the notice required by section 9 of the act of 1880.

The remaining questions arise wholly upon the facts. An inequality of assessment was asserted. Evidence of the value of farms largely in excess of the assessed values was given on behalf of the relator, but met by an equal, if not a larger, body of evidence sustaining the official valuations. An over valuation of the railroad was sought to be proved, and a body of evidence was given, relating to its earning capacity, and tending to show that its value was overestimated. On the other hand, the sources and accuracy of that evidence were criticised, the cost of construction was shown, the opinions of experts were given, and, back of all that remained, the observation and judgment of the assessors. Upon the evidence the question of value was purely one of fact. It has been revierved by the special and general terms, but should not be by us. No legal error is disclosed by the record which warrants our reversal of the proceedings.

The orders should be affirmed, with one bill of costs in this' court.

All concur.


author: Andrews, J.

text:
    Thomas Cornell, Resp’t, v. William J. Clark, Sheriff, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Sale — Delivery — When it does not pass the title.
    The voluntary surrender by tlie vendor of all dominion over the property is, as a general rule, inconsistent with the idea that the title is retained by the-vendor. But if the delivery is for a special purpose, not inconsistent with the retention of title by the vendor, such a qualified delivery will not pass the’ title contrary to the intention. Where anything remains to be done to ascertain and identify the subject of the sale, the title does not pass.
    2..Same — DELIVERY oe bailroad tiesto be inspected and counted DOES NOT PASS TITLE.
    Under an agreement to deliver to a certain railroad company a specified umber of “ ties,” to be piled within the bounds of said railroad, the company contracted to pay an agreed price for first-class ties, and another agreed price for what should be adjudged second-class ties, to be inspected and counted by a person named. The company also agreed to advance a certain fixed sum each for ties as they were delivered, the remainder to be paid on or about the time the ties were taken and used. Meld, that it was not contemplated that the title to the ties should pass on the ties being deposited on the lands of the railroad company, nor that there should be an inspection for the purpose of ascertaining the quality of the ties when the advance payment was made.
    3. TRUST — PURCHASE' OE TBUST PROPERTY — TITLE IN WHOM — WHO MAY ENFORCE THE TRUST.
    The ties were delivered and the advance payment made in 1872 and 1873,. and though called upon to do so, the company made no further payment. There was no inspection or selection. The company discontinued its operations in 1874, and its property was sold on foreclosure in 1881. In 1875, plaintiff being at the time a director of said railroad company, purchased on his own account the ties from the vendor, deducting from the price agreed, upon what had been paid by the company and took possession of them. Meld, that the legal title was vested in plaintiff by the purchase, and the • property could not be taken from his possession under an execution against the corporation. That the company could only claim the benefit of the. par-chase by the plaintiff on reimbursing the sum expended by him in obtaining the title. That the purchase by a trustee of trust property is voidable, not void.
    Appeal from a judgment of the supreme court, general term,, fourth department, affirming a judgment entered at the Delaware county circuit, on a verdict directed by the court in favor of the plaintiff in an action for the delivery of certain railroad ties levied on under an execution against the Delhi & Middle-town R. R. Co.
    The action is for the claim and delivery of railroad ties. The judge on the trial directed a verdict for the plaintiff, and the judgment on the verdict was affirmed by the general term. The primary question relates to the title to the ties on the twenty-eighth of February, 1879. The plaintiff claims title by virtue of a purchase in 1875, from persons who, in 1871 and 1872, had cut the ties on their land under contracts with the company, and had deposited them on or near the land of the company. In 1879, the plaintiff took possession of and removed the ties; and while they were in his possession, the defendant, as sheriff, on the twenty-eighth of February, in that year, levied thereon, under an execution on a judgment rendered in 1873, against the company, claiming that the ties are the property of the defendant in the execution. On or about the twentieth day of December, 1871, the company entered into four several contracts for the purchase of the ties, and the alleged title of the company is founded thereon, on an alleged delivery of the ties to the company under the contract. The contract with Munson, one of the vendors, was in writing. The other contracts were verbal, but it is sufficiently accurate for the present purpose to state that they followed the terms of the Munson contract, and, in determining the question presented, reference will be made to the Munson contract only. By the contract between Munson and the railroad company, Munson agreed to deliver to the company, during the years 1872 and 1878, and prior to March 1, 1878, at certain specified points on the line of the railroad, 20,000 ties of chestnut and oak timber, “ to- be piled within the bounds of said railroad, and so near the track that they can be conveniently handed onto the cars.” The company agreed to pay “forty-five cents each for first-class ties, and thirty-five cents each for what shall be adjudged second-class ties, to be inspected and counted by Mr. Emerson, superintendent of the Rondout & Oswego Railroad, or, if he cannot be procured, by some man of experience in that business, to be agreed upon by the parties, each party to pay one-half of the expense •of inspection and counting.” The company also agreed to ad-, vanee 15 cents a piece for ties as they were delivered, to be paid between the fifteenth and twentieth days of each month during delivery, the remainder to be paid on or about the time the ties are taken and used.
    Soon after the date of the contract Munson commenced draw-: Ing and delivering ties, some of which were piled on the lands -of the company, and others, for want of room, on land of other parties adjacent, hired for that purpose by Munson. The ties were counted, and the count delivered to Grant, the agent for the company, and the company, upon his audit, advanced the 15 cents a piece as provided in the contract. The ties were never inspected under the contract, or separated into classes^, and the company never paid anything beyond the advance payment. The company ceased operations in 1874, and its property and franchises were sold on foreclosure in 1881.
    In 1875 the vendors, being pressed' for money, and having failed to obtain payment of the balance unpaid from the company, applied to the plaintiff to purchase the ties. The application resulted in an agreement between the vendors and the plaintiff, on their part to sell, and on the part of the plaintiff to purchase, all- the first-class ties, at 35 cents each, deducting-what had been paid by the railroad company. The sale was consummated, the plaintiff paying in cash the sum of $3,971.09, the amount of the purchase price over and above the sum of' $5.257.01, the amount of the advance made by the company under the contracts. The negotiation was for a sale to the-plaintiff individually, and the receipts for the purchase money recited a sale to him. The ties remained where they were originally piled until 1879, when they were removed by the-plaintiff. In that year he purchased the culls at that price of five or six cents a piece. The plaintiff, at the time of the original contract, and at the time of his purchase, was a director of the Delhi & Middletown Railroad Company.
    J. H. Maynard, for appl’t; S. L. Stebbins, for resp’t.

       Affirming 36 Hun, 640 mem.

   Andrews, J.

It is plain that no title to the ties, which were the subject of the contract between Munson and the Delhi & Middletown Railroad Company, passed to the company on the execution of the contract of December 20, 1871. The contract was then wholly executory. It is inferable from the evidence that at the date of the contract the ties were for the most part-uncut on the lands of Munson. No part of the purchase money had been paid, and, by the terms of the contract, no payment was to be made until the ties were delivered at the points designated. It is clear that no title inprcesenti passed, or was intended to pass, on the execution of the contract. This, however, is not decisive of the question in controversy. The decision turns upon the point whether there was a delivery of the ties in such sense as to vest the title in the railroad company. It is competent for parties to an executory contract for the sale of.' personal property to provide in their agreement where and on what event the title shall vest in the vendee. If there is no express agreement on the subject, the question is to be solved by considering all the terms of the contract in connection with the acts of the parties, and applying thereto the rules of law applicable to the subject. There is no express provision in the contract of December 20, 1871, upon the subject.

It is insisted, however, that “the contract provides for a delivery of the ties on the lands of the company, and that' a delivery having been .made pursuant to the contract, that act was decisive on the question of title. It is doubtless true that the delivery of personal property to the vendee under an executory contract of sale is an important, and often a controlling, fact on the question of title. Where the delivery is absolute, it furnishes the strongest evidence of an intent to pass the title. The voluntary surrender by the vendor of all dominion over the property is, as a general rule, inconsistent with the idea that the title is retained by the vendor. But if the delivery is for a special purpose, as where the property is put into the custody of the vendee to meet some term of the contract not inconsistent with the retention of title by the vendor, such a qualified delivery will not pass the title contrary to the intention. In looking at the contract of December 20, 1871, it is, we think, apparent that it was not contemplated that the title to the ties should pass on the ties being deposited on the lands of the railroad company. The delivery provided for was for the purpose of inspection and selection. The payment to be made at that time was an advance, and the advance was to be made when the ties were deposited at the points designated. The company by the contract were to pay 45 cents each for first-class ties, and 85 cents each for what “ shall be adjudged ” second-class ties, upon inspection pursuant to the terms of the contract. The company was not bound to take all the ties which might be delivered by the vendor upon the lands of the company upon which an advance might be made. It contracted to take only first and second-class ties, according to the inspection of the person designated, or to be designated, as provided by the contract, who in respect to this duty was constituted the agent of both parties. The power of rejection was involved in the power of selection. The inspector might reject unmerchantable ties, not coming within either of the classes mentioned. It could not be known until the inspection had been had, and a separation made, what part of the ties should be taken, or what number should be paid for, or what sum beyond the advance payment the company was bound to pay, or the vendors entitled to receive. It was not contemplated that there should be an inspection for the purpose of ascertaining the quality of the ties, when the advance payment was made. The company could safely advance the 15 cents on the whole number of ties deposited, but the final payment was to be made “when the ties were taken and used,” and, when the number and quality of the ties to be taken were ascertained by inspection, the “remainder ” of the purchase money would be known.

The case is within the general principle that, where anything remains to be done to ascertain and -identify the subject of the sale, the title does not pass. What was left to be done was not simply to determine by count, or by a division of the whole number of ties into two classes, the amount remaining unpaid, but it involved identification and specification also. The case is unlike Burrows v. Whitaker, 71 N. Y., 291. In that case the vendee was to take all the lumber delivered, irrespective of selection. Nothing remained to be done except its separation into classes. In this case the company was bound to take only such part of the ties as should be adjudged by the inspector to be first or second-class ties. The case is more nearly like the case of Stephens v. Santee, 49 N. Y., 35. See, also, Lingham v. Eggleston, 27 Mich., 324; Bingham on Sales 227 et seq.

There are other circumstances which support the conclusion on this branch of the case. By one contract it was expressly agreed that the title should remain in the vendor until the purchase money should be paid. A large number of ties were piled on lands of private persons, for which rent was paid by the vendors. It is claimed that the company accepted the ties, and waived inspection. We think there was no sufficient evidence upon which the jury would have been justified in finding such acceptance or waiver. But the defendant assails the title of the plaintiff, or rather, he insists that the purchase by the plaintiff, in 1-875, inured as a purchase by the company, on the ground that the plaintiff, being at that time a director of the railroad company, was disabled from purchasing the ties on his own account, and that in fact he purchased them as agent for the company. The company discontinued its operations in 1874, and. its property was sold on foreclosure in 1881. It had paid on the ties in 1872, and early in 1873, the advance payment, amounting to $5,257,01, and, though called upon to do so, made no further payment. In 1875 the vendors, through one Grant, applied to the plaintiff to become the purchaser of the ties, and it resulted in his agreeing to purchase the first-class ties at the price of 35 cents each, provided the vendors would “ deduct therefrom what had been paid by the railroad company.” This was assented to, and the plaintiff paid for the first class ties in cash the sum of $3,971.09. Subsequently, in 1879, he bought the culls at five or six cents a piece. The negotiation was for a sale to the plaintiff individually, and the receipts for the purchase money paid by the plaintiff recited a sale to him. It is not claimed that the plaintiff was authorized to purchase for the company nor to advance any money on its account, nor is it denied that the $3,971.09 was paid by the plaintiff from his own means. The ties remained where they were originally deposited until 1879, when they were removed by the plaintiff and were in bis possession at the time of the levy by the defendant. Assuming that the plaintiff was disabled by the rule in equity from purchasing the ties on his own account, or from holding them as against the company, nevertheless the legal title was vested in him by the purchase, and the property could not be taken from his possession under an execution against the corporation. The plaintiff was not in fact the agent of the company to make the purchase, nor has the company claimed the benefit of the purchase. The purchase by a trustee of trust property is voidable, not void. The company could only claim the benefit of the purchase by the plaintiff on reimbursing the sum expended by him in obtaining the title. The defendant claiming under the execution is not in a situation in this proceeding to question the plaintiff’s title.

We think the verdict was properly directed, and the judgment should therefore be affirmed.

All concur.


author: Ruger, C. J.

text:
    People, Resp’ts, v. Lee and others, Appl’ts.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. GUARANTY— CONTRACT — DEFENCE TO SUIT ON CONTRACT.
    In an action at law, upon a written instrument (here guaranteeing the payment of money) for a sum of money claimed to be due to the plaintiff from the parties thereto, of the letter of their contract shows that they have made themselves liable for the snm claimed, it is no defense to the action to show that there are other persons who might also be resorted to by the plaintiff for a portion of the same sum.
    2. Same — Acceptance oe by State — When presumed.
    The State can only be hound to the acceptance of a contract of guarantey releasing other guarantors by the express action of its officers duly authorized to approve such guaranty or perhaps their omission to act thereon for such a lapse of time as would authorize a legal presumption that they intended to approve the guaranty.
    3. Same — Rule as to construction — Liability of guarantor strictissimi JURIS.
    While the liability of guarantors is strictissimi juris and cannot be extended by construction beyond the plain and explicit language of their contract, they are still subject to the rule that effect must be given to all of the language of the contract and a meaning and effect ascribed to each word and phrase used therein if it can be done without violating its plain meaning and intent.
    4. Same — When it is retroactive.
    The general rule is that a contract cannot be construed to have a retroactive operation, and that such an effect can be given to it only where by express words or by necessary implication it clearly appears to be the intention of the parties to embrace past transactions, but when this does not appear it is competent for parties to bind themselves for such liabilities.

      5. Same — Ignorance of law.
    It is not competent for parties to such an undertaking to allege that they were ignorant of the existence of a debt expressly provided for, or that they have been misled by the omission of their principals to notify them of its existence.

      JEugene S. Lewis, for appl’ts. JD. O’Brien, Atty. Gen., for resp’ts.
   Ruger, C. J.

Tbe first National Bank of Buffalo had, prior to 1882, for a series of years, been annually appointed a depository of the state for canal tolls receivable in the city of Buffalo, and had annually executed and delivered to the state contracts regulating the relations between them, the performance of which had been in each year guaranteed on the part of the bank by some of its directors in their individual capacity. Early in the-season of 1882 said bank became insolvent after it had been appointed a depository, but before it had completed and delivered to the state satisfactory security for the performance of its obligations for the ensuing year, and after that time the state discontinued its relations with such bank. Upon its insolvency the bank was found to be indebted to the state in a large sum of money, and the question in this case arises over the liability of its guarantors for such debt. The complaint embraces the guaranties of both the years 1880 and 1881 in its allegations, and seeks to recover the balance appearing to be due on the account for moneys deposited at the commencement of the year 1882. These contracts and guaranties were expressed in precisely similar language, and, so far as the parties to them are concerned, are subject to the same rule of interpretation, and must be understood to have been intended to cover the same class of obligations, and to differ only in respect to the time of their execution, and the period of time covered by their provisions. Such guaranties are joint and several in character, and it would constitute no defense to an action upon any of them to show that there were other persons liable to the state for the whole or a portion of the same debt claimed of the defendants, or that such persons are not made parties to the action. The defendants here are each and all obligors upon the bonds of both 1880 and 1881, and, in the view we take of the case, it does not enlarge their liability to consider their situation as parties to the guaranty of 1880. It may be that, as the result of investigation, it will be discovered that other parties, liable to the state for a portion of the money due from the bank to the state at the time of its insolvency, may be found, and, as a consequence flowing from such fact, that the defendants in this action may have a claim for contribution from such parties, in case they are obliged to pay the whole sum due the state; but it is not perceived how that fact can affect the liability of such guarantors upon their express contract of indemnity.

The only breach of the obligations of the guaranty alleged in the complaint consists of the refusal of the bank to pay the sum claimed to be due from it by the state on the twentieth day of April, 1882, and that amount consisted of the general balance due on the account accruing through a series of years, and covering the operations of 1880 as well as those of 1881. Whatever, therefore, may be the liabilities or obligations of the parties to the contract and guaranty of 1880, it is entirely immaterial in this action ; for the guaranty of 1881 covers not only the transactions of that year, but also the liability resulting from the transactions of 1880 as represented by the balance due from the bank to the state at the execution of the contract and guaranty of 1881. If, therefore, it shall appear, upon the further examination of the case, that the defendants are liable upon the guaranty of 1881 for the whole balance due from the bank to the state in the spring of 1881, no question arises as to the proper application of payments made by the bank in the respective years, or as to the equities of the guarantors of the respective years as between themselves. Such rights are to be settled and adjusted in an appropriate action, to which all such guarantors are made parties, and where every one interested may be heard in his own behalf, and these coirld not be heard here for want of proper parties if for no other reasons. This is a simple-action at law, upon a written instrument, for a sum of money claimed to be due to the plaintiff from the parties thereto. If the letter of their contract shows that they have made themselves liable for the sum claimed, it is no defense to this action to show that there are other persons who might also be resorted to by the state for a portion of the same sum.

It is claimed by the appellants that the sureties on the bond of 1881 have been released from liability thereon by reason of the acceptance by the state of a contract and guaranty from the bank for the year 1882, and it is contended that such acceptance operated as a discharge of all previous guaranties. This claim seems to be disposed of by the findings of fact made by the referee. He expressly finds that the state never accepted the same as a compliance by the bank with the condition imposed upon them by the state in respect thereto. The evidence in the case seems to us fully to support this finding, and renders itnot. only probable, but quite certain, that the state authorities did not intend to accept the guaranty in question. The state could only be bound to such acceptance by the express action of its. officers duly authorized to approve such guaranty, or, perhaps their omission to act thereon for such a lapse of time as would authorize a legal presumption that they intended to approve the guaranty. During the period between the receipt of this guaranty and the insolvency of the bank but a few days intervened,, and the auditor was diligently employed in this time in inquiring into the responsibility of the persons proposed as sureties, and had received no satisfactory information upon that subject. Under these circumstances, no acceptance of such guaranty could properly be inferred, and no evidence of an actual approval of the guaranty by the state was given. The referee having failed to find that the guaranty of 1882 was received by the state in satisfaction of previous guaranties, there is no evidence in the case authorizing this court to hold that any such discharge was intended or effected, and no foundation for the claim that the sureties on the guaranty of 1881 were discharged by the acceptance by the state of the guaranty of 1882. The inquiry here may therefore be limited to the liability which the signers of the guaranty of 1881 incurred by the terms and condition of their agreement. The main question arises over their liability for the debt existing at the time of the execution of the guaranty, and arising out of the transactions and deposits of the year 1880.

It is claimed by the appellants that the guaranty taken in 1881 was intended to be prospective in its operation only, and did not cover existing deposits. It is not claimed but that the express terms of this undertaking cover such a liability, but it is contended that the words of the condition should be limited and controlled by the language of the recital, and, so restricted, could not reasonably be held, to include an existing debt. It cannot be disputed but that there is much authority tending to support the position contended for by the appellants, but we think the cases cited by them are generally cases where the language of the condition was doubtful and uncertain; and a consideration of the whole instrument, and the circumstances surrounding the situation of the parties, created an ambiguity requiring the application of rules of construction to determine the real interest of the parties. The rule contended for is, however, one of construction, and obtains only for the purpose of ascertaining the real intention of the parties in making their contract. Burr v. American Spiral Spring Butt Co., 81 N. Y., 178; Brandt, Sur. § 138. It cannot prevail where the language of the condition clearly and unmistakably shows an intention to incur a liability not in terms referred to in the recital. Guaranties are subject to the same rules of interpretation as other contracts and especially to that fundamental rule requiring them to be enforced according to. the meaning and intent, and in the manner designed by the parties at the time of their execution. Rochester City Bank v. Elwood, 21 N. Y. 90: Burr v. American Spiral Spring Butt Co., 81 N. Y., 178.

While the liability of guarantors is strictissimi juris, and can-mot be extended by construction beyond the plain and explicit language of the contract, they are still subject to the rule that effect must be given to all of the language of the contract, and a meaning and effect ascribed to each word and phrase used therein, if it can be done without violating its plain meaning and intent. The general rule is undoubtedly that a contract cannot be construed to have a retroactive operation, and that such an effect can be given to it only where, by express words or by necessary implication, it clearly appears to be the intention of the parties to embrace past transactions; but when this does appear it is indisputably competent for parties to bind themselves for such liabilities. We are clearly of the opinion in this case that the contract itself recognizes an existing liability on the part of the bank to the state, and provides for its extension, and the surety thereof by the guarantors. This would seem to be not only a natural course of proceeding on the part of the state while taking a new security from a debtor contemplating extended and continued transactions, but a necessary measure of precaution to avoid the complications involved in investigating the transactions of former and perhaps remote years. It would be not only difficult, but almost impracticable, for the state to have its transactions with such a depository separated into distinct divisions, and be compelled to seek its indemnity among the conflicting equities and claims of numer-' ous sureties liable upon different contracts, for the transactions of different years.

It is, however, not permissible, we think, to resort to rules of construction in such a case as this, for there is no ambiguity in the language of the contract, and it provides in express terms for the liability in question, i'n:-., it states not only that the bank shall “ well and faithfully account for and pay over all moneys deposited with it, or for which it shall in any vay become liable in and by said contract, according to the terms and provisions thereof,” but “that said bank shall account for «ul pay over all money now on deposit in said bank” “to the people of the state of New York.” More explicit language could not be used, and it is impossible to assign any other meaning to the language used than that the sureties intendto be bound for the continuing security of the existing d«;? JO

It is not competent for < m-s to such an uni' ckAg to allege that they were ign-arn'i, of the eaáufenco pressly provided for. or that thojAstve been misk- the omission of their principals to notify them of its existencee. Western N. Y. Life Ins. Co. v. Clinton, 66 N Y., 330.

The rule applicable to the subject is well stated in lYuidt on Suretyship, § 138, in the following language: “ When the w-©3rd§" of the condition of a bond are general and indefinite as to the lime during which the surety shall remain liable, if there is a rc-cirY in the bond specifying the time during which the prescribes duty is to be performed by the principal, the general words will be limited by the recital, and the surety will only be liable for the time therein specified. The reason is that, taking the whole instrument together, it is but fair to presume that the parties had in contemplation only a liability for the time- specified. It is a rule of construction adopted for effectuating the intention of the parties.” See, also, Burr v. American Spiral Spring Butt Co., supra.

The conclusions reached on the propositions discussed necessarily dispose of all other questions raised by the appellants. The judgment should therefore be affirmed.

All concur.