text:
    Emily A. Moulton, Resp’t, v. Nehemiah N. Cornish, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Foreclosure—Redemption—Parties.
    In an action brought by the purchaser at foreclosure sale of one of several parcels covered by the mortgage against a subsequent mortgagee who was not made a party to compel him to redeem or to cut off his equity, the defendant cannot complain that the purchasers of the other parcels were not made parties where he has not taken that objection by demurrer or answer.
    2. Same—Jurisdiction.
    Notwithstanding the provisions of § 1626 of the Code, an action may be maintained to require a mortgagee who has been inadvertently omitted as a party to an action of foreclosure to redeem within a certain time or be foreclosed of his right to redeem.
    3. Same—Conditions—Costs.
    In fixing the amount to be paid in order to redeem it is improper in such case to include the costs of the foreclosure action.

      4. Same—Improvements.
    Where the plaintiff purchased with full knowledge oí the defendant’s mortgage and his rights thereunder, it is improper to require payment of the value of improvements made by the plaintiff as a condition of redemption.
    Appeal from a judgment entered in, Oneida county upon a decision made at a special term held m that county, requiring the defendant to redeem the premises described in the complaint within a period of time-or be forever barred from the right to redeem. On the 10th of May, 1877, Amy H. Kellogg executed and delivered to Charles S. Symonds, as assignee in bankruptcy, her bond, conditioned for the payment of the sum of $8,650, and as collateral security for said bond she and her husband executed and delivered to Symonds, as assignee, a mortgage covering three farms situated in the town of Floyd, known as the Klock, Beils and Tavern farms; the mortgage ■ was recorded in the clerk’s office of Oneida on the 9th of June, 1877, and on the 29th of December, 1877, the bond and mortgage were assigned to the plaintiff. On the 29th of January, 1878, Amy H. Kellogg and her husband conveyed the premises described in the mortgage to Ichabod 0. McIntosh, by a conveyance which was recorded on the 5th of February, 1878 ; on the 1st of February, 1878, McIntosh executed and delivered to Miriam M. Kellogg a mortgage covering the premises as security for the payment of $2,500, which was recorded on the 13th of February, 1878. On the 16th of May, 1886, the plaintiff commenced an action in this court to foreclose her mortgage, and a lis pendens was filed and a decree of foreclosure, naming the sheriff as a referee, was obtained and entered on June 15, 1889. The plaintiff obtained a search from the clerk’s office, and by mistake or excusable inadvertence omitted to make the defendant Cornish a party to her foreclosure proceedings. At the sale made by the referee the plaintiff “ bid off the parcel known as the Tavern farm for $6,095, and said sum was credited on the amount due her under the decree.” The referee made a conveyance of the farm to the plaintiff “ and she and her tenants have been in -possession thereof ever since the 16th day of March, 1889.” On the 6th of April the sale was confirmed by “an order of this court, the said Cornish appearing and opposing.” By a written instrument bearing date December 26, 1879, Miriam M. Kellogg, in consideration of $2,300, transferred the said $2,500 mortgage to the defendant, and the instrument was recorded December 29, 1879. At the time of the commencement of this action the defendant Cornish “ claimed and by said search appears to be the owner of the said $2,500 mortgage given by said McIntosh to Miriam M. Kellogg as aforesaid, and that his right of redemption had not been barred and foreclosed, and that said $2,500 mortgage is an existing lien on said lands.”
    As a conclusion of law the court found that the defendant “ being the owner of said mortgage of $2,500, given by Ichabod 0. McIntosh to Miriam-M. Kellogg February 1, 1878, to secure the payment of $2,500, holds the same as an existing lien on the lands bid off by the plaintiff on the foreclosure of the mortgage, Amy H. Kellogg to Charles S. Symonds, as assignee, hereinbefore mentioned, subsequent to the lien created thereby, and the same was not cut off by such foreclosure, the said -defendant not having been made a party in said action or having had an opportunity to be heard in court.” The court found that the defendant was entitled to redeem and prescribed certain conditions upon the exercise of such right, and prescribed the manner of ascertaining the amount to be paid by the defendant upon making such redemption, and, among other things, required him to pay the costs of the foreclosure made in the former action upon having such redemption, and allowed the defendant six months in which to pay the said bill, the amounts to be ascertained by a referee to be appointed ; and further found that if the defendant should not pay and perform according to the conditions stated in the findings within six months as aforesaid, “then it is ordered and adjudged that the said defendant, and all persons claiming under him, after the filing of the notice of pendency of action, do stand and be forever barred and foreclosed of and from all right, title, interest and equity of redemption of, in and to the said mortgaged premises so bid off by said plaintiff, to wit, the Tavern farm, so called, and every part thereof; all liens he has upon said lands so bid off by the plaintiff by virtue of said mortgage of §2,500, or any other existing at the time of the commencement of said foreclosure action, are to be adjudged as cut off and foreclosed, and the plaintiff to hold the title thereto free from all such liens.” It was also provided in case such redemption was made “ costs are not awarded to either party, except the costs of a referee, which shall be paid one-lialf by either party.” Formal judgment was entered upon the findings so made by the court; requests were made and numerous other findings, some of which were granted and others refused, and the defendant has taken exceptions to the refusals and to the findings so made.

      Samuel Keeler and N. C. Moak, for app’lt; C. M. & G. E. Dennison, for resp’t.
   Hardin, P. J.

(1) We think the defendant cannot successfully complain that the purchasers of the Klock and Bells farms were not made parties defendant in this action. He took no objection to the complaint on that ground by demurrer, and the relief sought in this action does not impair his liens as to those farms; and, besides, his answer does not set up that such purchasers are necessary parties to this action. White’s Bank of Buffalo v. Farthing, 101 N. Y., 344; 1 St. Rep., 15.

(2) From an early day, in the court of chancery, in England, on the payment or tender of money, though after the day named in the mortgage, it has been held that the mortgage should be considered as redeemed in equity, the same as it would have been at law if the payment had been made before the day; and following that practice, bills were '‘filed by mortgagees for the extinction or foreclosure of this equity, unless payment were made by a short'day to be named. The settled English practice is for the decree to order the amount due to be ascertained, and the costs to be taxed, and that upon the payment of both within six months the plaintiff shall reconvey to the defendant; but in default of payment within the time limited that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises.” Clark v. Reyburn, 8 Wall., 323.

In Bolles v. Duff, 43 N. Y., 474, this practice was referred to in the following language ‘‘ Strict foreclosures are now rarely pursued or allowed in this state, except in cases where a foreclosure has once been had and the premises sold, but some judgment creditor, or person similarly situated, not having been made a party, has a right to redeem. As to him, a strict foreclosure is proper. In general, a mere strict foreclosure is a severe remedy. It transfers the absolute title without any sale, no matter what the value of the premises.” This practice was recognized in Peabody v. Roberts, 47 Barb., 92 Kendall v. Treadwell, 14 How., 167; Salmon v. Allen, 11 Hun, 32.

It is insisted in behalf of the appellant that § 1626 has cut off "the equity practice as it has existed prior to the Code. We find in Thomas on Mortgages, page 732, § 1143, and in Wiltsie on Mortgages, page 929, § 833, it is suggested that such, possibly, may be the effect of § 1626 of the Code; neither of the authors, nor does the appellant in this case, cite any authority for holding that such is the effect of § 1626 of the Code of Civil Procedure. That section is one of a series of sections prescribing for the ordinary action of foreclosure ; notwithstanding that section, we think the remedy, as it has heretofore been used by courts of equity, remains. Wolff v. Ward (Mo.), 16 S. W., 162, American Digest, 66. The plaintiff in this case is not seeking a sale of the mortgaged premises. In the foreclosure of her prior mortgage a sale has been had and the title of the mortgagor has passed to her as a purchaser under that sale. She comes before the court stating that she has acquired the title to the premises in virtue of her mortgage and the proceedings for foreclosure thereof, and in effect asks the defendant to redeem the premises from her mortgage, and that the amount equitably due him by reason of the premises be ascertained and that the defendant be given a period of six months in which to make such redemption. She further asks the, equitable intervention of the court that, in the event he fails to redeem in the manner and within the period prescribed, he be forever forclosed.

If a sale had been asked for by the plaintiff, it would have been obnoxious to the objections stated by Davis, J., in Salmon v. Allen, 11 Hun, 32; in speaking of such a sale he says: “ That course would tend to throw the title into great confusion, for there can be no doubt that, as between the owner in fee and the other persons who were made parties to the foreclosure of Mrs. Allen’s mortgage, her title to the lots under the foreclosure is complete, and her mortgage is extinguished by the conveyance to her of the fee under the decree. All the right that the plaintiff has, therefore, in equity, under his junior mortgage,ia the right to redeem the preimses from Mrs. Allen, by paying off the amount of her mortgage and interest, unless she choose to come in and pay the amount of his mortgage for the purpose of perfecting her title. * * "* We think it was not proper to have adjudged a sale of the fee of the premises subject to the lien of Mrs. Allen’s mortgage, .as the judgment in the court below does, but that instead of such a judgment a decree of redemption should have been entered in accordance with the established practice in equity. Gage v. Brewster, 31 N. Y., 218; Vroom v. Ditmas, 4 Paige, 526; Venderkemp v. Shelton, 11 id., 28; Benedict v. Gilman, 4 id., 58 ; Pardee v. Van Anken, 3 Barb., 534; Brainard v. Cooper, 10 N. Y., 356. See opinion of Mullin, J., in Gage v. Brewster, supra, at p. 226; People v. Bebee, 1 Barb., 379 ; 2 Barb., Ch. Pr. (rev. ed.) p. 193, et seg., and notes.”

The case before us is unlike Walsh v. Rutgers Fire Ins. Co., 13 Abb., 33 ; that was an independent action by the second mortga.gee to foreclose his mortgage, there having been a foreclosure of .a prior mortgage without naming him as a party thereto. Doubtless, at any time prior to the sale had in virtue of the proceedings upon the first mortgage, the defendant here might have maintained an action to foreclose his mortgage and forced a sale in respect thereto, and had a sale and decree in such proceedings. Bache v. Purcell, 6 Hun, 518.

(3) We are of the opinion that the trial court fell into an error in requiring the defendant in the case of redemption to pay the •costs of the former action in foreclosure.

In vol.. 1, book 2, of Blackstone’s Commentaries, p. 158, it- is •said “ But here again the courts of equity interpose, and, though a mortgage be thus forfeited, and the estate absolutely vested in 4he mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at anyreasonable time to recall orredeem his estate; paying to the mortgagee his principal, interest and expenses ; for otherwise, in strictness of law, an estate worth 1,000 pounds might be forfeited for non-payment of 100 pounds or a less sum. The reasonable advantage allowed to mortgagors is ■called the equity of redemption; and this enables the mortgagor to call on the mortgagee, who has possession of the estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand', the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately, or else call upon the mortgagor to redeem his estate presently, or in default thereof to be forever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall.”

The defendant was not a party to that action and he has never become liable to pay costs, and we think it was improper to impose the payment of costs of that action as a condition of exercising the right of redemption. We think the question was fully settled in Gage v. Brewster, 31 N. Y., 218. See, also, Peabody v. Roberts, 47 Barb., 92; Belden v. Slade, 26 Hun, 635.

(4) We think the requirement to furnish a guarantee was unusual, and was an exaction beyond any precedent we have discovered in the numerous cases pertaining to a redemption. The remedy is sufficiently severe and harsh, Bolles v. Duff, supra, without having attached to it any unusual exactions.

(5) We think the plaintiff’s purchase of the Tavern farm was. not subject to the mortgage of the defendant; the title and interest which she derived was as of the time of the date of her mortgage,

(6) We recognize the rule that this court has the power to review the facts and consider the evidence and to determine whether the findings accord with the weight of the evidence. Finch v. Parker, 49 N. Y., 1; Godfrey v. Moser, 66 id., 250. We have looked into the evidence, considered the same in connection with the findings, and we do not feel called upon to disturb the findings of fact made by the trial judge. The same are supported by the evidence, and are apparently in accord with the weight thereof.

(7) It is found that at the sale on the 16th of March, 1889, and before the sale had been made, the referee publicly announced the conditions and terms of the sale, and among the conditions he stated that the property was sold free and clear of any and all right of dower, charge or lien upon the same, “ except that it is claimed by one HehemiahH. Cornish that he is the owner by assignment of a mortgage made by Ichabod C. McIntosh to Miriam M. Kellogg, covering the premises, dated February 1, 1878, to secure the payment of $2,500, which mortgage was recorded in Oneida county clerk’s office February 13th, 1878, and is a record lien upon said mortgaged premises. Cornish has not been made a party defendant to this action.” It is also found “ That after such public announcement of said condition and terms of sale, subject thereto, the plaintiff became the purchaser at the said sale of that portion of the mortgaged premises known as the Tavern farm, so called, for $6,095, particularly described in the complaint, in this action.” It is also found “ That the plaintiff so purchased the same at said sale with the knowledge of the lien of defendant’s said mortgage, and the order aforesaid to make him a party defendant as aforesaid, and that he had not been made such party defendant” By the decision made at the trial it was provided that “ the value of any improvements made thereon by her in good faith ” be ascertained; and the defendant be required to pay the same as one of the conditions of redemption.

In Mickles v. Dillaye, 17 N. Y., 84, Judge Denio, in stating the rule applicable to the right of redemption, says: “The general rule is therefore understood to be that upon taking the account in a suit for redemption against a mortgagee in possession, he is to be charged with the rents and profits and be allowed only for necessary reparations. Moore v. Cable, 1 Johns. Ch., 387; Quin v. Brittain, 1 Hoff. Ch., 353; Story’s Eq., § 1016.”

In Benedict v. Gilman, 4 Paige, 62, improvements were allowed, but it appeared “ that the complainant was ignorant of the existence of these judgments until after he had made permanent improvements upon the premises to a considerable extent; ” and it was said: “Under such circumstances it would be inequitable and unjust to give the defendants the benefits of those improvements without compelling them to pay an equivalent therefor. The case would have been different if the complainant had made the improvements with a full knowledge of the defendant’s equitable right to redeem. See Moore v. Cable, 1 Johns. Ch., 385.”

In Wetmore v. Roberts, 10 How., 56, the rule laid down in Benedict v. Gilman, supra, was referred to approvingly, and the improvements were allowed “ on the ground that Claxton, having purchased and improved as owner in good faith, and the interest of the plaintiff at the time of the sale being of no value, it would be unjust for a court of equity to take from the former and give to the latter the value of these improvements.” See opinion of Hand, J., 10 How., 56.

In Mickles v. Dillaye, 17 N. Y., 88, Judge Denio refers to Wetmore v. Roberts approvingly.

In considering the rule as to when improvements may be allowed, it was said in Hubbell v. Moulson, 53 N. Y., 228, by Andrews, J., if the party in possession “has made permanent improvements upon the land, in the belief that he was the absolute owner, the increased value by reason thereof may be allowed to him; ” upon the doctrine so stated he refers to Mickles v. Dillaye, 17 N. Y., 80. According to the finding which we have quoted the plaintiff, in the case before us, had knowledge of the existence of the defendant’s mortgage at the time of her purchase, and the rule as stated in Hughes v. Edwards, 9 Wheaton, 500, by Washington, J., should be applied; he says: “The claim, therefore, of a purchaser, with notice, to have the value of the improvements which may have been made from the fruits of the property itself deducted from the price at which the property may be sold, seems to the court too unreasonable to admit of a serious argument in its support. Ho case was cited, nor has this court met with one, which affords it the slightest countenance.”

In Moore v. Cable, 1 Johns. Ch., 388, Chancellor Kent observed: “ Many a debtor may be able to redeem by refunding the debt and interest, but might not be able to redeem under the charge of paying for the beneficial improvements which the mortgagee had been able and willing to make. The English courts have always looked with jealousy at the demands of a mortgagee beyond the payment of his debt;” and in that case his direction to the master to compute the principal and interest due on the mortgage contained a provision “ that he allow for the expense of necessary reparations, if any, but not for improvements in clearing part of the land.”

We think the special term fell into an error in directing the referee to ascertain the value of any improvements made by the plaintiff since her purchase of the mortgaged premises. If the foregoing views are adopted it follows that the decision and judgment should be modified by eliminating therefrom (1) the provision as to the guarantee to be furnished by the defendant; (2) the provision as to the costs of the former action; (3) the provision as to the improvements made upon the Tavern farm since the purchase thereof at the foreclosure sale by the plaintiff, and after such modifications are made an affirmance of the order.

Decision and judgment modified in accordance with the opinion .of Hardin, P. J., and as so modified affirmed, without costs of this appeal to either party. The form of judgment may be settled before Hardin, P. J., upon five days notice.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Charles A. Burt, App’lt, v. The Oneida Community, Limited, John H. Noyes et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Reference—Decision on the merits.
    Where a motion for nonsuit is 'made, but the referee makes no decision thereon, stating that he would have to make findings either way, and it would come up hereafter, his decision thereafter rendered must be considered as made upon the merits.
    2. Oneida community—Rights of members.
    When plaintiff was a minor his father joined the Oneida community, and deeded his property thereto, under the rule of that association that the property of each member should be owned by all jointly. Plaintiff on coming of age signed articles of the association, which at that time provided that on the withdrawal or expulsion of a member he would not bring action against the community, its agents or any other person or corporation for compensation for services or the recovery of any property contributed to its funds or property, nor make any claim or demand therefor. Plaintiff was supported and educated by the community and conformed to its principles and practices until 1880, when he entered into' the employment of outside parties, in violation of the rules of the community, and for this was expelled from the community, the property of which was afterwards transferred by the trustees to the defendant corporation. Held, that plaintiff having assented to the customs, practices, rules and covenants of the community, must be held to be bound by them;, that plaintiff had no interest in the property of the community or right of action for his labor and services, and that the complaint was properly dismissed.
    Action commenced January 10, 1884. The complaint alleges that the Oneida Community, Limited, is a domestic corporation organized under the laws of the state of Hew York, and doing business principally in the counties of Madison, Oneida and Miagara; also that about the year 1846 “plaintiff’s father, the defendant Hoyes and others, organized an association, society and partnership which they entitled the Oneida Community, having its abode and principal place of business in the ■ said county of Madison, for the following purposes, to wit: First. To enable all of its members to live in community. Second. That its members might observe and practice the new religion taught and founded by the defendant Hoyes. Third. For the transaction of a general manufacturing and agricultural business.” The complaint alleges that “ said Hoyes founded said association upon the-claim that he was inspired of God, and the members of said society and association were his followers who believed in his inspiration, and accepted the doctrine and creed orally and in writing and print taught and expounded by him as their religion. * *- ■» And said Hoyes and his favorites ruled absolutely over the members of said association and had absolute control of their property, persons and liberties. That it was mutually agreed by and between the members of said association, as one of the conditions of the contract of association as well as one of the tenets of their creed, that each and all of said members would contribute, assign, convey all his and their property absolutely to said association and to each and all of its members so that the property of each individual member should be jointly owned by each and all of the members of said association equally, and that each and every person admitted to membership in said association who owned no property and was without means should upon becoming admitted to such membership be equally the owner of all the property of said association and of the property of each of said members as fully and as absolutely as though he or she contributed, assigned and conveyed property to said association and to each, and all of its members, and that those who had no property to contribute as aforesaid had equal interest, ownership and rights, and were in all respects equally entitled to share in all the property,- rights, ownership, privileges and benefits of the property contributed by any or all the members who contributed property. And furthermore it was then and there mutually agreed by all the said persons who organized said association that this contract would be of full force and binding and equally apply to all members who thereafter joined as members said association, and who were obliged as a condition to admission as such member to absolutely and faithfully deliver, convey, assign, transfer and set over all their property, if they had any, for ¡the joint ownership, use and benefit of each and all of said members of said association.”
    It is also alleged “ That there was no written or unwritten constitution, code, regulations or by-laws ever adopted by or in force with the members of said association or community, and no specification of offenses or grounds of complaint for which a member might incur forfeit of his right and interest in the common property bf his said, membership.” It is also alleged that the father of the plaintiff became a member of said association, and at that time was the owner of a farm and of mill property in Madison county, which he conveyed to the said association; and that when plaintiff’s father joined, the plaintiff was of the age of three years. It is also alleged that plaintiff was entitled by the rules of said community and the contract made between the community “ and his parents, as the minor child of members, to become a member thereof, and enjoy all the benefits thereof,, and equally and jointly own the property belonging to said association upon reaching the age of twenty-one years.” That about the year 1869 plaintiff was sent to a school attached to Yale College to be educated; that “ when he returned to his home in said community he respectfully presented bis views, as he had the right to do, and then, there and ever after incurred -the displeasure of the defendant Noyes and his favorite followers, who ruled the entire community most tyrannically, and he wa stherefore cruelly persecuted by them for his opinions’ sake. That about the year 1879, or a short time before, other members, who likewise became- convinced of the need of reform, raised great objection to said Noyes and his favorites, • who were called ‘the inner circle,’ and so rigorously opposed' certain practices that it resulted in said Noyes and a number of his favorites withdrawing from said community, and fleeing or departing to Canada. That at said time said community was practically disorganized. That in the place of said Noyes and those of his favorites who had deserted, a temporary council was instituted to assist in the affairs of said community; ” that plaintiff “ had no means to travel with in quest of health and rest, and he was offered the opportunity to sell wares by a firm in no wise connected with said community, which offered to allow him a certain percentage on sales which he might effect of their wares as compensation for his services.” The complaint also alleges “ That within a period of less than three months after he left on said western trip, a large number of members of said community, without his consent, and without notice to him, illegally voted or declared said community dissolved; ” and he alleges that defendants and some other members organized “ themselves illegally into a joint stock company or corporation, under the corporate name of the Oneida Community, Limited, and transferred all the businesses that were being carried on by said members and community to said corporation, and they, and each of them, have ever since conducted said business under said title.” It alleges that the property so transferred “ consisted of real and personal property of great value, to wit: more than one million dollars, and which was chiefly the product of the industry and skill of plaintiff and the other members thereof, derived from their and his toil, economy and good judgment.” It also alleges that “Some little time prior to said 16th day of October, 1880, said association had remained in a state of disorganization, without rules or officers, and said members have never since maintained an organization or system of government or rule, other than by and under such members who were appointed officers of said corporation, the defendant, the Oneida Community, Limited.”
    The complaint alleges that the defendants Portia G. Allen, George Campbell and others enumerated (except the corporation) “were at the time hereinbefore mentioned -members of said organization and Community, and now are stockholders of said Oneida Community, Limited, and have received since the 16th day of October, 1880, stock of said Oneida Community, Limited, and large sums of money which equitably and lawfully belong to plaintiff, and were unlawfully paid to said defendants by the officers of said Oneida Community, Limited, all of whom were members of said Oneida Community.” The complaint also alleges that the corporation was organized “ without the consent, privity or connivance of plaintiff and against his will and consent and unlawfully deprived him of his rights, and interfered with his property in transferring and conveying, and authorizing to be transferred, conveyed arid delivered said property to said Oneida Community, Limited.”
    In the prayer of the complaint the plaintiff asks “ that the alleged expulsion of the plaintiff as a member of said Community be adjudged and decreed illegal, void and of no effect, and that the plaintiff be adjudged to be a member of said Community and entitled to all the rights, privileges, franchises and property belonging equally to each and every member of said Community and to him as such member and to an equal share in all the property belonging to said Community and its members; ” it also asks that the “ alleged dissolution ” be adjudged illegal, void and of no effect; also, that the “ said defendants and each of them and their attorneys, officers and directors, agents, servants or trustees, be adjudged to account for their management and disposition of the property of the plaintiff committed to their charge or either or any of them, or of any property which was owned jointly by the members of the Oneida Community or association or society, and of the property which they have individually acquired or disposed of to others; ” also, that an “ accounting be adjudged of the interest or share of the plaintiff in and to the property jointly owned by the members of the said Community, society or association, and fraudulently and illegally conveyed and transferred to the defendant, the Oneida Community, Limited; ” also, that a receiver be appointed, and “ that the said Oneida Community, Limited, its agents, trustees, officers, attorneys and servants, each or any of them, may be enjoined and restrained from exercising any of the corporate rights, privileges or franchises, and from collecting and receiving any debts or demands and from paying out or in anywise transferring or delivering to any person any of the capital stock, money,, property or effects of such corporation, or of the property conveyed and transferred or delivered by said members of said Oneida Community of said property holders to said Oneida Community, Limited; ” also, “ that the defendants may be adjudged to pay plaintiff such sum or sums of money as shall, upon the taking of such accounts, appear to be due said plaintiff from them.”
    The answer of the defendants contains a denial of the allegations of the complaint and sets up the six years statute of limitation, also the ten years statute of limitation ; and the defendants allege “ that they were a duly and legally organized community, and a religious sect having doctrines of faith and a covenant in writing to and with each other, which were well known and understood by and between the plaintiff and the defendants, and were agreed upon and mutually assented to by each of them, and that the same was continued down to and through the time set forth in the plaintiff’s complaintthe answer also alleges that “ said plaintiff never had or brought any property or estate into said community, and did nothing more than to partly conform to its duties, faith and covenants with said family, Oneida Community.” And the answer further alleges that the plaintiff “ fully ratified and confirmed all acts previously done in his behalf or upon his account, and for a valuable consideration executed a.n agreement in writing,” which agreement is set out and known as the covenant, bearing date August 18, 1875; it is also alleged that he executed the covenant “freely and without compulsion or duress, and with the full and complete knowledge of all the facts in the premises, and with a perfect understanding on his part ■* * * and in good faith on behalf of said community, and that upon their part the same was fully executed and has been -carried out; that the same was signed and assented to by each member of said community after arriving at the age of twenty-one years;” and it is alleged “ that upon his ceasing to be a member of said community by withdrawal or otherwise, plaintiff acquired no claim against said community or any members thereof, but wholly relinquished the same.” The answer also alleges that “ about the year 1880 the plaintiff voluntarily left and abandoned said Oneida Community, without the consent of said community ■and the members thereof; that when said withdrawal was made, under said written agreement (being the covenant aforesaid), plaintiff ceased to have any rights in any property belonging to said community at the time, or in pursuance thereof.” The answer further alleges that “ at the time of the commencement of this action the father, and mother of the plaintiff were both living within the state of Hew York, and are of full age, and were then stockholders and owners in the defendant, the Oneida Community, Limited, and that the plaintiff has acquired no right of or from them in any manner against said community or the members thereof, * * * or on account of the property, if any, contributed or brought into said community by the father or mother of said plaintiff.” It is also alleged that plaintiff voluntarily abandoned and left said Oneida community a considerable time prior to the formation of the association hereinafter mentioned known as the Oneida Community, Limited.” The answer admits “ that the defendants Charles 0. Kellogg, William H. Woolworth, John H. Hoyes and Erastus H. Hamilton had legal title to and were in possession of all the real and personal property claimed by plaintiff to form the property of the Oneida Community, and they deny that upon the 16tli day of October, 1880, when said property was transferred by said holders thereof to said Oneida Community, Limited, that there was any trust existing in favor of the plaintiff in said property, or that he had any right, legal or equitable, to or lien upon the same or any portion thereof.” • The answer of the defendants contains several other matters not deemed important to recapitulate here.
    The covenant of August 18, 1875, which was signed by the plaintiff and others, is in the following language:
    Covenant of the Oneida Community.
    Whereas, The society called the Oneida Community, having its headquarters at or near the village of Oneida, county of Madison, and state of Hew York, and branches at Wallingford, state of Connecticut, and other places, was founded by John II. Hoyes and others, for the purpose of religious fellowship and discipline, and

      Whereas, It has been and is the agreement of members of the said Oneida Community, and of all its branches, by and with one another, that on the admission of any member all property belonging to him or her becomes the joint property of the Community and all of its members, and the education, subsistence, clothing and other necessaries of life furnished to members and their children in the Community are agreed and held to be just equivalents for all labor performed and services rendered, and property contributed, no accounts being kept between any member and the Community, or between individual members, and no claim for wages accruing to him or her in case of subsequent withdrawal, and,

      Whereas, It has heretofore been the practice of the Community to keep a record of the estimated amount or value of the property put in by each member joining the Community, and to refund the same or an equivalent amount of value, without interest, use or increase, in case of subsequent, voluntary withdrawal of the member ; yet, as this practice stands, and has already stood, on the ground not of obligation, but of good will and liberality, the time and manner of refunding such property or its value resting entirely in the discretion of the community, through the voice of its members, who may also discontinue this custom of refunding at any time they may see fit, or refuse in any case to refund all or any part of such property contributed by any member upon or after his or her withdrawal at their pleasure; and,

      Whereas, It is also agreed that on the death of a member, or his or her expulsion for just cause, the Community, its trustees, officers or other representatives, are not bound to refund all or any part of the property contributed by such member to his heirs, executors, administrators or assigns;

      Therefore, We, the undersigned, acknowledge the above as the terms of our connection with and membership in the Oneida Community, and all its branches now existing or that may hereafter exist, and we, severally, for ourselves, our heirs, executors, administrators or assigns, do agree and covenant with it and with its members and with one another, and with the present property holders thereof and their successors in office, that neither we nor our heirs, executors, administrators or assigns will ever bring any action, either at law or in equity, or other process or proceeding whatsoever, against said community or its branches, or against the agents or property holders thereof, or any person or other corporation, for wages or other compensation for services, nor for the recovery of any property by us or either of us contributed to the funds or property of said community or its branches, on or before our entering the same, or at any subsequent time, nor make any claim or demand therefor of any kind or nature what-' soever.
    Signed, August 18, 1875.
    Charles A. Burt et al.

    At the close of the whole evidence the case states: “A motion was thereupon made for a nonsuit by the defendant. The referee: I shall have to make findings either way, and. of course it will come up Hereafter.”
    The referee found as a matter of fact that the covenant of August 18, 1875, was executed “by the plaintiff and his fellow members, who were adults, including the property holders and the partners aforesaid, and said written instrument was styled the covenant, and from its date the plaintiff and all his fellow members continued to act under said instrument as expressing the terms of the contract between the Oneida Community and each member -as understood by them and he also found “ the said covenant or written instrument in substance represents a contract similar thereto, made by each member at the time of joining the association, each former contract being in its terms a paroi contract or agreement and understanding made by each member joining before said several writings.” The referee also found that “about the 30th day of July, 1880, because of the absence and engagement hereinafter mentioned, the council claiming to act for the Oneida Community passed and recorded in the books of the Oneida Community a resolution declaring the plaintiff expelled from the membership of said community;” and he also found as a matter of fact “ that before the commencement of this action the plaintiff absented himself from said community and omitted to perform or attempt to perform his contract with the Oneida Community, and entered into a contract with parties outside of the Oneida Community to serve them instead, and performed said ■contract with said outside parties, the same being inconsistent with his obligations to the Oneida Community, according to the terms of his contract with them.”
    At the request of the plaintiff the referee found: “ That said Oneida Community or association still exists and continues to be.”
    The referee found as matter of law, viz.:
    “ First. That the complaint is unproved in its entire scope and meaning.
    “ Second. That the plaintiff is not vested with any several proprietary interest in the property mentioned in the complaint or any part thereof.
    “ Third. That the defendant, the Oneida Community, Limited, is vested with the legal title to the property mentioned in the complaint, and the right to possess and hold the same under the transfer thereof to said Oneida Community, Limited.
    “ Fourth. That the Oneida Community have not dissolved or committed any acts sufficient to constitute a sufficient cause for decreeing a dissolution of said association.

      “Fifth. That the plaintiff has entirely failed to prove or establish any cause of action in his favor or against the defendants or any of them.
    “ Sixth. That the defendants are entitled to a judgment dismissing the complaint in this action, with costs against the plaintiff in favor of the defendants, and I direct judgment accordingly.”
    Judgment was entered upon the report of the referee in Madison county dismissing the plaintiff’s complaint “ on the merits of the action ” and that defendants recover the sum of $579.43 costs, which judgment was entered November 29, 1889, in Madison county clerk’s office. On the 31st of December, 1889, the plaintiff appealed from the judgment., No motion was made to conform the judgment to the findings of the referee or to strike out any portion of the judgment, but the plaintiff’s appeal is from the judgment as entered.

      George H. Hart, for app’lt; W. G. Tracy, for resp’ts.
   Hardin, P. J.

(1) We think the findings of the referee and the decision made by him must be taken as having been upon the merits ; when the motion for a non-suit was made at the close of the evidence no decision was made by the referee upon that motion. Apparently the parties acquiesced in the view the referee took that the case was to be considered upon the merits upon the evidence given by either side. We think the case falls within the rule laid down in Van Derlip v. Keyser, 68 N. Y., 444; in that case it was said: “ As the referee has disposed of the case upon the entire evidence, making special findings of fact, it must be considered as decided upon all the testimony presented on both sides upon the trial before him. Any other course would leave out of view the testimony given by the defendants, and prevent a consideration of the same. Such a practice is not authorized in cases of a similar character. In order to raise a question of this character and present the same for review, the case made up should show that it was raised and decided upon the trial, and before he had passed upon the facts. Assuming that upon a motion to dismiss the complaint at the close of the testimony a question arises the same as upon a motion for a non-suit, a distinct ruling should be had at the time when the motion was made, or as of that time and before the final submission of the whole case to the consideration of the referee. At least he should have been requested to decide the motion as of that time, and if he had refused to do so an exception taken to such refusal. If the motion had been granted an exception should have been taken to his decision. All of these matters should be made to appear in the case and thus present the question. As this was not done and an exception merely taken to the report of the referee upon the facts and to his conclusion of law, the point is not before us.” See, also, Pritchard v. Hirt, 39 Hun, 378. Apparently the appellant acquiesced in the views suggested by the referee that the case was to be disposed of upon the merits after a full consideration of all the evidence given before the referee.

The case of Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710, differs from the one before us; there at the close of the plaintiff’s evidence the defendant, without announcing that he rested the case, moved that the complaint be dismissed on the merits, and the referee granted the motion, and the plaintiff’s counsel excepted ;_ and it was held in that case that the action of the referee was equivalent to a nonsuit. In the case before us the motion was not granted, and the request that the decision be made at that stage of the case was given by the plaintiff and no exception was taken to the action of the referee, who intimated that the case was to be* considered on the merits.

(2) From the evidence found in the appeal book it is apparent, that the plaintiff at the time of the commencement of this action had no legal title to the real estate referred to in the pleadings and mentioned in the evidence. At that time he was not a tenant in common or joint tenant with the corporation defendant, or the individual defendants mentioned in the complaint, or with anyone of them. This action cannot be maintained as one in partition for a division or sale of the real estate. Code, §§ 1532 et seq.-, Harris v. Larkins, 22 Hun, 488. The deeds of the several parcels of real estate were absolute in form to the property- grantees without any conditions or declarations of trust, and the evidence does not indicate that the plaintiff was a tenant in common with the grantees named in the deeds, neither of the individual nor with the corporation organized under the statute of 1875. There is no evidence showing any specific payments of money by the plaintiff for the lands or any part of them which were held by the individual grantees. When the Community was organized in 1848, plaintiff was an infant, having been born on the 9th of December, 1844, and was living with his parents," who united with the Community, and he remained with them until he arrived at the age of majority, apparently under the direction and control of his parents, without having been emancipated, and without having any real estate, and without having any legal title to any compensation for services prior to his majority.

In 1864, April 30th (which was prior to his majority), he executed an instrument in writing with others, which was entered upon the original register of the Oneida Association, which contained the following words : “ On the admission of any member the property belonging to him or her becomes the property of the association. A record of the estimated amount will be kept, and in case of subsequent withdrawal of a member, the association according to its practice heretofore will refund the property or an equivalent amount. This practice, however, stands not on the ground of obligation, but of expediency and liberality, and the time and manner of refunding must be 'entrusted to the discretion of the association. While a person remains a member his subsistence and education in the association are held to be just equivalents for his labor and no accounts are kept between him and the association, and no claim of wages accrues to him in case of subsequent withdrawal. We the undersigned acknowledge the above as the terms of our connection with the Oneida Association.” Subsequent to the plaintiff’s execution of that instrument he remained in connection with the association down to August 18,1875, apparently acquiescing and adopting the arrangement had and existing between the several members of the association. The evidence of the acts and acquiescence of . the plaintiff indicates an adoption and approval of the agreement of 1864 by the plaintiff after his. majority, and is sufficient to indicate a ratification by him of the terms of the agreement already quoted. He received his support, education and acted in complianee with the practice mentioned and the regulations named in the agreement of 1864. Apparently he received a liberal education, being a student at a scientific institution connected with Yale College, New Haven, and his support and maintenance and expenses apparently were borne by the Community in accordance with the tenor and spirit of the agreement of 1864. However, if any plausible doubt could be established or maintained in respect to the plaintiff’s approval of the agreement of 1864, such doubt is fully removed by the agreement of August 18, 1875, which was executed by the plaintiff. The latter agreement recites the organization of “ the society called the Oneida Community,” and states that it was “ founded by John H. Noyes and others, for the purpose of religious fellowship and disciplineit also recites that “it has been and is the agreement of members of the said Oneida Community, and of all its branches, by and with one another, that on the admission of any member all property belonging to him or her becomes the joint property of the Community, and all of its members, and the education, subsistence, clothing and other necessaries of life furnished to members and their children in the Community are agreed and held to be just equivalents for all labor performed and services rendered and property contributed, no accounts being kept between any member and the Community, or between individual members, and no claim for accruing to him or her in case of subsequent withdrawal.”

It may be observed that the language just quoted, to wit: “ that the education, subsistence, clothing, and other necessaries of life furnished to members and their children in the community are agreed and held to be just equivalents for all labor performed and services rendered, and property contributed, no accounts being kept between any member and the community, or between individual members, and no claim for wages accruing to him or her in case of subsequent withdrawal,” are sufficient to indicate that the plaintiff consented to and accepted the education, subsistence, clothing and other necessaries of life” as “ just equivalents for all labor performed and services rendered; ” and the plaintiff having thus stipulated what should be the compensation for his labor and services is bound to accept, receive and enjoy such compensation as the sole and only equivalent for his labor and services. In passing it may be observed that it is difficult therefore to suppose that the plaintiff is entitled to any other compensation for his labor and services performed by him for the community. This view bears significantly against the theory of the plaintiff, that he has by his labor and services become entitled to any share or inerest in the real estate acquired by the association. Surely, if the “ education, subsistence, clothing and other necessaries of life” are “ held to be just equivalents for all labor performed and servieces rendered, and property contributed,” then the plaintiff received his pay according to a stipulation binding upon him while he remained in the association; having received his “ just equivalents ” it may be well doubted whether he ever became entitled to any other compensation, or any interest in any property, real or personal, as a compensation or equivalent for his labor and services. This view bears significantly against the idea of the plaintiff being an equitable owner of any of the property of the association. This view gains additional force from the subsequent language of the instrument of August 18, 1875; it declares that “It has heretofore been the practice of the community to keep a record of the estimated amount or value of the property put in by every member joining the community, and to refund the same or an equivalent amount of value, without interest, use or increase in case of subsequent voluntary withdrawal of the member ; yet as this practice stands, and has already stood on the ground, not of obligation, but of good will and liberality, the time and manner of refunding such property or its value resting entirely in the discretion of the community, through the voice of its members, who may also discontinue this custom of refunding at any time they may see fit, or refuse in any case to refund all or any part of such property contributed by any member upon or after his or her withdrawal at their pleasure.” Inasmuch as the plaintiff put in no property at the time of his joining the association, there is no occasion for the application of the practice mentioned in the quotation already made, and he has no occasion to call upon the community for the exercise of the “ good will and liberality ” mentioned in the language of the instrument; but the further language used in the instrument of August 18, 1875, indicates that the plaintiff was not entitled to any ownership in the property of the association; it is stated, viz: Whereas, it is also agreed that on the' death of a member or his or her expulsion for just cause, the community, its trustees, officers or other representatives, are not bound to refund all or any part of the property contributed by such members to his heirs, executors, administrators, or assigns.” This language seems to indicate that the association was not bound to refund to the plaintiff, or any other member of the association, any property contributed to the association either upon the death of a member or upon his expulsion from the association for just cause. The subsequent language of the instrument commits the plaintiff to the tenor and spirit of all the language we have already quoted.

The instrument continues: “Therefore, we, the undersigned, acknowledge the above as the terms of our connection with and membership in the Oneida Community and all its branches now existing, or that may hereafter exist, and we severally for ourselves, our heirs, executors, administrators and assigns, do agree and covenant with it and its members, and with one another, and with the present property holders thereof and their successors in office, that neither we nor our heirs, executors, administrators or assigns, will ever bring any action either at law or in equity, or other process or proceeding whatsoever, against said community or its branches, or against the agents or property holders thereof, or any person or other corporation, for wages or other compensation for services, nor for the recovery of any property by us or either of us contributed to the funds or property of said community, or its branches, on or before our entering the same, or at any subsequent time, nor make any claim or demand therefor; of any kind or nature whatsoever.” The language which we have just quoted is consistent with the idea that the plaintiff intended to accept “the education, subsistence, clothing and other necessaries of life furnished to members and their children ” as ample, full and “ just equivalents for all labor performed and services rendered.” Having thus agreed to accept a specific compensation for his labor and services, it was harmonious therewith that he should agree to receive no interest in the property that had been accumulated by the association, and that he should expressly stipulate that neither he nor his executors or assigns “ will ever bring any action either at law or in equity, or other process or proceeding whatsoever against said community or its branches, or against the agents or property holders thereof, or any person or other corporation for wages or other compensation for services.” The effect of this stipulation seems to be to cut off any claim “ for wages or other compensation for services,” and hence it stands in the way of his assertion that he is entitled by reason of his services to any part of the property held by the “ property holders.” It stands in the way of his maintaining an action against “any person or other corporation for wages or other compensation for services.” It also stands in the way of the plaintiff’s right of “recovery of any property- * * contributed to the funds or property of said, community, or its branches, on or before our (his) entering the same, or at any subsequent time.” He further stipulated and agreed that he would not “ make any claim or demand therefor of any kind or nature whatsoever. ”

Apparently the position now taken by the plaintiff by the scope of this action is in violation of the agreement to which he assented. Instead of the plaintiff’s applying to a court of equity to sustain the agreement and to require the community to execute it on its part, he is in the attitude of asking a court of equity to give him relief in disregard of his express stipulations. So long as this agreement remained in force it is difficult to see how he had any right to maintain an action in equity against the “property holders” or against the community itself or “any person or other corporation ” for the recovery of compensation for wages and services or the equivalent thereof. It has been suggested that the community violated the terms of their agreement and therefore the plaintiff may have relief, but the evidence does not indicate that the community was the first party who violated the agreement. The plaintiff voluntarily took himself away from the community in 1880, and "voluntarily kept himself from its privileges and from availing himself of its support and maintenance; voluntarily for nearly four years, down to the time of the commencement of this action, which was the 14th day of January, 1884. Intermediate his removal to Chicago in 1880, and the time when this action was commenced, he does not seem to have made any effort to receive and enjoy the support, maintenance, clothing and necessaries mentioned in the agreement, nor to have demanded an opportunity to enjoy the same according to the tenor of the agreement existing between him and the association and its several members. We here forbear further comment on that aspect of the case,' calling to mind that the community, as such, is not made a party defendant in this action. If the plaintiff would have a remedy for services and labor because he has not enjoyed the specific compensation mentioned in the agreement, it seems his action should be against the community. If he has a claim for the equivalent of those because they have been refused to him, he should seek his remedy by an action against the association with which he contracted. We have before us only a corporation that was organized in 1880, under the statute of 1875, which in no way has undertaken to compensate the plaintiff for his labor and services, and apparently has not become obligated to him for the same or the equivalent thereof. If it be suggested that the corporation has become the assignee of the agreement made by the plaintiff with the community, then as such assignee it is entitled to assert against the plaintiff all the conditions and stipulations made in the agreement. If it be suggested that the individual defendants have become liable for the labor and services of the plaintiff, or the equivalent, such liability must be deemed to have accrued in common with the liability of numerous other parties who are not made defendants in this action. It may be further suggested that in no event has the plaintiff a joint cause of action for his labor and services, or the equivalent, against the corporation and the individual defendants. It is a familiar principle that where there is an express agreement for compensation for labor and services to be rendered, the law will not imply any other or additional one. 4 Maine, 102.

During the very protracted trial the plaintiff, as a witness, gave very extensive evidence as to the organization, workings, theories and doctrines and practices of the Oneida Community. He introduced into the case numerous circulars, annual reports, hand books and documents issued by the community at various times from 1848 down to 1880. From a perusal of them it is quite apparent that at no time did the community contemplate a legal liability on the part of the community to any of its members -for labor and services beyond such compensation as might be derived from it in the way of “ education, subsistence, clothing and other necessaries of life furnished the members and their children in the communityand the separate or individual or several ownerships of any member of the association of any of the property or accumulations of the association was negative in various ways and at various times. Among other extracts introduced by the plaintiff from the hand-book is one which states “Ho one of himself owns anything.” In another of the extracts from the hand book, introduced by the plaintiff, it is stated “ The three community families (in all 278 persons) are financially and socially a unitin another extract from the hand book it is stated “ The Oneida Community rests upon a religious foundation. It was originated for the avowed purpose of applying the teachings of the Hew Testament to all the relations of life. Most of its original members were Separatists from the orthodox churches of Hew York and Hew England, in consequence of having embraced new views of Christian doctrine.” The plaintiff himself testified that: “ When parties became unruly and refused to submit outright to the teachings of Mr. Hoyes and his associates, they were, in one instance, voted as reprobates; that party was compelled to leave and did leave; that was the additional penalties incurred; 1" was told by Mr. Hamilton, Mr. Cragin and those who had us in immediate charge, for Mr. Hoyes during the early period didn’t have the children in charge, that if we didn’t obey and conform to the rules, unwritten rules, of the community established by their customs and instructions, that we should be compelled to leave the community to go into the outer world; the name given to the association other than that of Community was the Kingdom of God on Earth ; the Kingdom of Heaven.”

And the plaintiff again testified: “ They confessed their faith in Mr. Hoyes; they confessed their absolute surrender to the spirit of the Community; they confessed their obedience to Mr. Hoyes; they confessed their faith in the divine inspiration of Mr. Hoyes; they confessed Mr. Hoyes to be the leader. That is what I mean by confession, relating to property they confessed they all belonged to the church, that all their property and all their interests belonged to the Church of God established by Mr. Hoyes ;■ they confessed repeatedly that they made a perfect and entire surrender of themselves and their property for the establishment of the Kingdom of God on earth; that covers the general ground; of course there were a hundred million confessions of that kind, of varying form. The relation of each member to the common property was, the members were instructed by all the leaders that we would, as they called it, give our property to the Lord.” The evidence does not disclose any independent articles of association at the time of the organization of the Community, or written or formal constitution. It does disclose the circulars, hand books, annual statements and agreements of 1864, and the covenant of 1875, and other manifestations of the acts, practices by them as to religious, social and business relations. It also discloses that the plaintiff was well educated at the expense of the Community; that he was a man of more than ordinary intelligence, capable of comprehending the circulars, hand books, agreements, practices and pursuits of the Community; that he voluntarily acquiesced in the rules and regulations of the Community down to the year 1879, taking part at various tirpes in the discussions, deliberations and declarations of the organization, having at times supervision of various improvements, developments, structures and business enterprises, and to some extent became a manager and leader, and has acted as salesman of the produce (canned goods) and other materials offered to the public for sale. The evidence warrants a conclusion that he, knowing of the contents of the agreement of 1864, after he had executed the same, acquiesced in its terms; knowing the language of the agreement of August 18, 1875, he acquiesced in its terms, and that the same was executed freely by him without any fraudulent representations or misstatements being made to • him in order to induce his execution thereof. Hnder such circumstances he should be held to abide by the tenor and spirit of the agreement of 1864 and the agreement of 1875.

In Austin v. Searing, 16 N. Y., 121, the court in dealing with constitutions and regulations of a masonic organization said, in the opinion of Selden, J.: “It is only as contracts that these constitutions are in the least obligatory. * * * Viewed,-then, as contracts, these constitutions must be subject to the same rules with all other contracts. It must be clearly shown that the defendants have assented to the written constitutions of these lodges.” Plaintiff having assented to the practices, customs, agreements and cov'enants existing among the members of the Community, may reasonably be held bound by the tenor and terms thereof.

The"United States supreme court in Goesele v. Bimeler, 14 How., U. S., 589, had occasion to examine an organization not wholly unlike the one now before us; in that case “ the articles of associations or constitutions of 1819 and 1824 contained a renunciation of individual property; ” and it was held “ the heirs of one of the members who signed these conditions, and died in 1827, cannot maintain a bill of partition; ” also, it was further held, viz.: “ The ancestor of these heirs renounced all right of individual property when he signed the articles, and did so upon the consideration that the society would support him in sickness and in health; and this was deemed by him an adequate compensation for his labor and property, contributed to the common stock. The principles of the association were, that land and other property were to be acquired by the members, but they were not to be vested with the fee of the land. Hence, at the death of 'one of them, no- right of property descended to his heirs. There is no legal objection to such a partnership ; nor can it be considered a forfeiture of individual rights for the Community to succeed to his share, because it was a matter of voluntary contract. Uor do the articles of association constitute a perpetuity. The society exists at the will of its members, a majority of whom may at any time order a sale of the property, and break up the - association.” In the course of the opinion of Judge McLean, it is said of the plaintiff’s ancestor, viz.: “He then signed the first articles, which, like the amended articles, renounced individual ownership of property, and an agreement was made to labor for the Community, in common with others, for their comfortable maintenance. All individual right of property became merged in the general right of the association. He had no individual right, and could transmit none to his heirs. It is strange that the complainants should ask a partition through their ancestor, when, by the terms of his contract, he could have no divisible interest. They who now enjoy the property, enjoy it under his express contract.”

And again he says: . “ As a general rule, chancery may not enforce a forfeiture; but will it relieve an individual from his contract, entered into fairly and for a valuable consideration ? What is there in either of these articles that is contrary to good morals, or that is opposed to the policy of the laws ? An association of individuals is formed under a religious influence, who are in a destitute condition, having little to rely on for their support but their industry ; and they agree to labor in common for the good of the society, and a comfortable maintenance for each individual; and whatever shall be acquired beyond this shall go to the common stock. This contract provides for every member of the community, in sickness and in health, and under whatsoever misfortune may occur. And this is equal to the independence and comforts ordinarily enjoyed. The ancestor of the complainants entered into the contract fairly and with a full understanding of its conditions. The consideration of his comfortable maintenance, under all circumstances, was deemed by him an adequate compensation for his labor and property contributed to the common stock.” Again, he says: “If members separate themselves from the society their interest in the property ceases, and new members that may be admitted, under the articles, enjoy the advantages common to all.” In that case the bill in equity was denied “ on a deliberate consideration of all the facts in the case,” the opinion concluding that “ there is no ground to authorize the relief prayed for by the complainants.”

In Hyde v. Woods, 94 U. S., 523, the question arose as to the property rights of a member of the San Francisco Stock & Exchange Board, which was a voluntary association for business purposes, and it was held that a rule of the association was binding upon a member, and the court observed: “ Though we have said it is property, it is incumbered with conditions when purchased, without which it could not be obtained. It never was free from the conditions of article 15, neither when Fenn bought, nor at any time before or since. That rule entered into and became an incident of the property when it was created, and remains a part of it into whose hands soever it may come.”

In Belton v. Hatch, 109 N. Y., 593 ; 16 St. Rep., 354, a question arose as.to the relation to each other of the members composing the association of the Hew York Stock Exchange, and the extent and validity of the powers reserved by its constitution and by-laws; that was a voluntary association of individuals united without a charter in an organization for the purpose of affording to the members thereof certain facilities for the transaction of their business, and in the course of the opinion delivered it was said, viz: “ It cannot be said to be strictly a copartnership, for its objects do not come within the definition of one;” and it was further said that “Whatever a member acquires is subject to the self-imposed condition that his title and the rights which accrue from his membership are regulated by, and are dependent upon, the laws adopted by the association, and expressly consented to by him when he joined.”

A similar case was presented to the court in White v. Brownell, 3 Abb., N. S., 318, and in that case it was held that the “ Open Board of Brokers in the city of Hew York is not a corporation, nor is it a joint stock association, nor is it as respects questions relating to the continuance or termination of membership in it a partnership. That board is a voluntary association of persons who, for convenience, have associated to provide at the common expense a common place for the transaction of their individual business as brokers. The agreement which the members of such an association have made upon the subject of membership, and what shall be the terms on which it shall be acquired and the grounds and proceedings upon which it shall be terminated, must determine the rights of parties on that subject. A court of justice must recognize and enforce these provisions of the compact. It cannot substitute another contract for the one which the parties have made.” In that case an injunction was dissolved which restrained the board from interfering with the privileges of a member of the board, and the decision made at general term was affirmed. 4 Abb., N. S., 162. Daly, P. J., said in the course of an elaborate opinion, viz.: “ Individuals who form themselves together into a voluntary association for a common object may agree to be governed by such rules as they think proper to adopt, if there is nothing in them' to conflict with the law of the land; and those who become members of the body are presumed to know them, to have assented to them, and they are bound by them. Innes v. Wylie, 1 Carr. & K., 262; Brancker v. Roberts, 7 Jur., N. S., 1185 ; Hopkinson v. Marquis of Exeter, Lond. Times, Dec. 31, 1867 ; L. R., 5 Eq. Cas., 63.”

It may be fairly inferred or implied from the evidence that it-was understood that members should labor jointly in the business carried on by the association, and give their entire attention to -the business interests of the association. Apparently the plaintiff so understood the relation which he occupied to the Community down to the year 1880; and he apparently understood that a membership could be severed by withdrawal or by death, or by expulsion, and that in case of voluntary withdrawal a party would not be entitled to take anything with him or to avail himself of the opportunities for support and maintenance, or the use of the property of the association. It seems that February 15, 1880, according to the record of a business meeting held at that time, H. Gr. Allen, from a committee appointed to consider the best arrangements for selling the Community’s goods in the west, made ' a report recommending that the plaintiff and one Hamilton “ be appointed as general western agents for the sale of all kinds of our goods, with the understanding that they are to look after our interest generally in that quarter; ” the recommendation of the committee was adopted and the plaintiff entered upon the performance of that duty and continued until some time in the summer of 1880, and in April of that year the plaintiff applied to the business board for leave to “ sell goods for other parties,” and according to the book of records the plaintiff" “ moved that our agents be authorized to act as agents for the sale of goods manufactured by other parties in cases where such sale would not interfere with our own trade. The motion causing considerable discussion was finally laid on the table.” It further appears by the book of record that on April .13, 1880, “Mr. Townléy moved that the board take up the matter brought forward by Mr. Charles Burt, April 4th, viz.: The authorizing of our agents to sell goods manufactured by other parties, in cases where such sales would not interfere with our own trade. The question being put by the chairman, was decided in the negative.” It appears that the plaintiff, on or about April 13, 1888, entered into a contract with the Ei'ie Preserving Company (a rival institution located at Buffalo) whereby he undertook to act as agent for the Erie Company in the city of Chicago and other western territory. When that fact became known to the Community there arose a great deal of discussion and opposition and complaint, it being insisted that the plaintiff could not serve two masters, and that his connection with the Erie company was a breach of his obligation to the Community. However, he made his trip to the west and entered upon the performance of his contract with the Erie Preserving Company, selling its goods. On the 15th or 16th of April, at the Community, the plaintiff stated that “ he met by appointment a representative of the Erie Company and had arranged, had made an agreement with that company to make a trial trip; that he was to be paid §100 a month and expenses if it was simply a trial trip; if he continued in their service a year he was to receive §1,500 a year and expenses; ” that conversation was reported to the administrative council, which took action thereon; “ the business board acted on it August 1st; the business board consists of all the members of the Community. There was no negative vote.”

The action apparently was taken after a committee had been appointed to confer with the plaintiff, to which committee he stated that he “ had finally determined to leave the community, and enter into a permanent engagement with another party on his own account; ” after that report was made, the following preamble and resolution was then adopted: “ Whereas, Charles A. Burt has of his own accord, and without the consent of the community, entered the service of another company for his own individual interest and profit; therefore, be it resolved that he has by this act severed his connection with the community, and can no longer be recognized as one of its members.” Before the final action above stated was had, the plaintiff had returned temporarily to the community from his western trip, and had various discussions with various members in respect to his situation and relations, and he found there was great opposition to his course, and apparently he took that into consideration, made his election and determination, as evidenced by his letter of July 26, 1880, which he wrote while he “ was in the dwelling of the society. ” The following • language is found in the letter: “July 26th, 1880. To the Council: On Wednesday next I propose to change my place of residence to Chicago. * * * The move I am about to make I consider in the light of self protection. * * * I do not expect to make any settlement on leaving. The money that I earned in the service of another company I propose to take with me on the ground that there is considerable doubt in the minds of many whether I am or have been for two months past a member of the community on account of my outside connections. Several persons in the council have expressed this opinion, and it is held by many others. If this view be true, the community certainly are not entitled to receive the earnings of an alien. As long as there is any doubt upon the subject, I will take the benefit of the. doubt. Feeling as 1 do, if the community succeed in adjusting the conditions of things here so that I can return, I shall do so, and when I do return shall bring all my earnings.” After delivering this letter to the council he went to Chicago about the 1st of August, or, as he says: “It may be that I left on the 28th of July on Wednesday; 1 think I arrived in Chicago on the 1st of August.” The witness adds that from that .time until the present he has been engaged in the employment of other parties,' and for himself, although he subsequently sold some of the goods of the Oneida Community, having bought some goods on his own personal account, which he bought and paid for directly. On August 2d Mr. Campbell wrote in behalf of the Community to the plaintiff a letter in which he stated: “ The administrative council Friday, July 30th, passed the following resolution, and instructed me as secretary to report it to you. It was also in the meeting of the business board yesterday accepted and adopted as the minds of the business board. Whereas, Charles A. Burt, of his own accord and without the consent of the Community, entered into the service of another company for his own individual interest and profit, Therefore, be it resolved, that he has by this act severed his connection with this community, and can no longer be recognized as one of its members.” The plaintiff retained the money which he derived from the Erie Preserving Company, and from such other sources, down to the period of the commencement of this action.

In his letter of July 26th he recognizes the fact that there is doubt about the propriety of his conduct, and that many of the members understood that he had voluntarily withdrawn himself from the Community. Recognizing that doubt he acts upon it by withdrawing the funds which he received from the Erie Preserving Company, which, if he was in full standing and in full recognition of the obligations he had become under to the Community, were the property of the Community and not his individual property. Apparently he took the safe side of the question by withholding the money and apparently by his intentions and acts evidenced that he had severed his relations with them. Whether his expulsion was in the most formal and technical manner contemplated by the relations of the parties or not need not be conclusively determined; however, taking the action of the board of administrative council and of the several members of the Community in that regard into consideration, and the declarations and acts of the plaintiff, it may be reasonably assumed that he withdrew himself from the Community, and that at the time of the commencement of this action, which was in 1884, he had by his acts and acquiescence severed his relations with the Community. It may be observed that he had never made a demand to be restored to the privileges and opportunities of the Community which had been refused by it prior to the commencement of this action, but as the Community as a party is not named as a defendant, we forbear further comment upon the relations of the plaintiff to the association. We have looked into the able opinion of the learned referee before whom this cause was tried, and much of the reasoning and logic of the opinion meets with our approval. We think no foundation has been shown by the plaintiff requiring the corporation or the individual defendants to make a specific performance of any obligation or contract on its or their part towards the plaintiff; indeed, if such relief were sought by the plaintiff it might be said that he did not act promptly. It was said in Covart v. Johnston, 15 N. Y. Supp., 786; 40 St. Rep., 62, that “ one who would have specific performance should be prompt in claiming it. Here the plaintiff, on his own showing, has waited a year, and during that time has given no intimation that the contract had not been fully performed.”

The delay of the plaintiff in the case in hand seems to have been about four years, and we are of the opinion that neither of the defendants have any contract relation with the plaintiff which he is entitled to have specifically performed upon the evidence found in the appeal book. A very large portion of the evidence given on the hearing before the referee consists of the testimony of the plaintiff. Some of his statements are contradicted by other witnesses and some of his statements are somewhat inconsistent with some of the documentary evidence found in the appeal book. Yery numerous requests are presented (some 146) for additional findings, and exceptions were taken to refusals to find certain questions of fact. We do not deem it important to consider them in detail. It may be observed that the plaintiff was an inerested witness, and even though not contradicted it was the province of the referee to determine whether full credence should be given to all his statements and declarations as a witness under all the circumstances surrounding him at the time of the trial. Elwood v. Western Union Tel. Co., 45 N. Y., 549 ; Roseberry v. Nixon, 58 Hun, 121; 33 St. Rep., 981; Dean v. Van Nostrand, 23 Wk. Dig., 97.

Very many rulings upon the admission and rejection of evidence were made during the progress of the very protracted trial. We have not deemed it important to comment upon them in detail; suffice it to say that the learned counsel for the plaintiff says: “It will be remembered that this is an equity case.” Forrest v. Forrest, 25 N. Y., 501; Clapp v. Fullerton, 34 id., 190; Matter of Appl'n of N. Y. C. & H. R. R. R. Co., 90 id., 342.

Our views as already expressed sufficiently indicate that in our opinion the plaintiff is not entitled to disturb the decision of the referee dismissing his complaint.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Bennett F. Brown, by Weltha R. Brown, Committee, Resp’t, v. Andrew B. Miles, Jr., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    Lunatics—Deed.
    Plaintiff, in consideration of certain personal property and cash given him by defe idant, contracted to give him a deed of certain land when defendant delivered to him a survey of said land. Defendant subsequently delivered such survey and plaintiff and his wife, who is now his committee, executed and delivered to him a deed, and defendant moved on said land and made improvements thereon. In an action to set aside the deed on the ground thai plaintiff was of unsound mind and had been from a time shortly after the making of the contract, the court charged that if the jury found that plaintiff was a lunatic at the time the deed was executed they should find a verdict for plaintiff. Held, error; that the question as to the validity of the contract should have been submitted, and the court was called upon by the facts to exercise its equitable jurisdiction in considering what relief, if any, defendant was entitled to.
    Trial at the Jefferson circuit before a jury. The jury found for the plaintiff, and “ that he is the owner in fee of the premises, and awarding him damages of sixty dollars for the use and occupation of the premises.” The defendant moved for a new'trial on the minutes, “ on the grounds that the verdict is contrary to law and against the evidence, and against the weight of evidence, and also upon the exceptions taken during the trial.” The motion was denied, and the defendant took an exception thereto. Judgment was entered upon the verdict, and the plaintiff appeals from the judgment and from the order denying a new trial. The case contains all the evidence. Plaintiff’s complaint alleges that proceedings were had de lunático inquirendo, and that upon an inquisition Bennett F. Brown was “found to be a person of unsound mind,” and that on the 29th of April, 1890, Weltba R. Brown was appointed his committee of his person and estate, and that she qualified and entered upon the performance of her duties. The plaintiff alleges “ that since on or about April 15,1889, at all the times hereinafter referred to, the said Bennett F. Brown was a person of unsound mind. * * * ” And the plaintiff further alleges: “ That on or about July 1, 1889, the said Andrew B. Miles, Jr., received and accepted from the said Bennett F. Brown what purported to be a conveyance by warranty deed of the premises hereinafter described, which was executed at or about that time by the said Brown, who was then insane, but the said conveyance was at the time of the exection thereof, and has ever since remained, utterly void and of no effect for that reason.” The complaint alleges that Bennett F. Brown “is the owner in fee of the said premises hereinafter described, and was possessed thereof until about the 1st of July aforesaid, and that while the plaintiff was such owner and in possession of the said real estate, the said defendant, on or about July 1,1889, wrongfully and unlawfully entered in and upon the said premises and property hereinafter described, and wrongfully and unlawfully withholds the same from the plaintiff. The complaint contains a description of the land, containing 24.09 acres of land, “as surveyed by W. A. Lyttle, June 8, 1889.” The complaint asks for judgment against the defendant “ for the recovery of the possession of the said real property and for the damages and costs.” In the defendant’s answer he “admits that on or about the 1st day of July, 1889, he received and accepted a warranty deed of the premises described in the complaint, executed by the said Bennett F. Brown and Weltha B. Brown, his wife;" he then denies the other allegations of the complaint; and for a defense he sets. up that on the 19th day of April, 1889, “ the said Bennett F. Brown executed and delivered to this defendant his agreement in writing, whereby for value received he agreed to give to this defendant a good and sufficient warranty deed of all the land south of a line running at right angles from the line fence,” etc., which agreement, it is alleged, acknowledged the receipt of the payment therefor, and provided that a deed was to be given after a survey of said land.
    It is alleged that cthe consideration of the agreement was a “ horse, wagon, cow sold and delivered by said Miles to said Brown at the agreed price of $220; the use of a stallion for two mares, $20 each; cash $5, amounting to $265 ; ” and it is alleged “ That on the 3d day of June, 1889, he procured a survey of said premises, in pursuance of said agreement, to be made by W. A. Lyttle, a practical surveyor, reduced to writing and delivered to said Brown, which survey was incorporated in the deed hereinafter mentioned.” It is further alleged that Brown procured a deed to be drawn of the premises according to the survey, and that the deed was executed by Brown and wife, and duly acknowledged before one Wager, a notary public, and was duly delivered to the defendant on said 1st day of July, 1889. It is also alleged that Brown and wife executed a certain instrument in respect to a mortgage of $750 upon the premises conveyed, which instrument is set out in the answer; and the defendant alleges “ that during and at the times of the several transactions hereinbefore mentioned, the said Bennett F. Brown was sane, and of sound mind, and fully competent to transact business; ” and the defendant alleges that immediately “ after the execution and delivery of said deed as aforesaid, he entered into the possession of said premises, and made improvements thereon; that there has been no offer to restore to this defendant the consideration so paid by him as aforesaid, or compensate him for the improvements so made by him on said premises as aforesaid.” This action was not commenced until the 5th day of May, 1890. At the close of the plaintiff’s evidence the defendant moved for a non-suit; the motion was denied, and the defendant took an exception. In the course of remarks made in denying the motion the court said: “ The plainiff may recover upon an equitable title or the defendant may defeat her recovery upon an equitable title.” In the course of the charge delivered the court observed “ So that, if you are satisfied, I again repeat, that Brown was a lunatic at the time this deed was executed and delivered to Miles, * * * if you find that he was incompetent to do business at that time, you will find a verdict for the plaintiff, and in that verdict you will find that the plaintiff is the owner in fee of this 24 acres of land. Your verdict will find that, as that is the title'he holds, if he holds any, his deed to Miles being of no account if he was a lunatic.” Counsel for the defendant asked the court to hold “that the action of ejectment cannot be maintained upon the proof of this case;” the court refused so to hold, and an exception was taken thereto. On the 19th of April, 1889, Brown signed an instrument agreeing to give the defendant “ a good and sufficient warranty deed ” of the premises “when said Miles delivers to said Brown a survey of the above described land and fence.”

      L. J. Dorwin, for app’lt; Elon R. Brown, for resp’t.
   Hardin, P. J.

It is insisted by the learned counsel for the appellant that a deed made by a lunatic is “ voidable only and not absolutely void; ” -we think the weight of authority is against the proposition. Van Deusen v. Sweet, 51 N. Y., 378; Valentine v. Lunt, 115 id., 497; 26 St. Rep., 254; Riggs v. American Tract Society, 95 N. Y., 503. This court is already committed upon the proposition by its decision in Goodyear v. Adams, 24 St. Rep., 31; S. C. aff’d, 119 N. Y., 650; 29 St. Rep., 993, and the doctrine finds support in Aldrich v. Bailey, 28 St. Rep., 571, and in Johnson v. Stone, 35 Hun, 383 ; Carter v. Beckwith, 40 St. Rep., 347.

(2.) If it be assumed that the verdict of the jury is sustained by the- evidence, so far as the verdict pronounces upon the soundness of Brown’s mind July 1, 1889, being the time of the execution of the deed, still the question must be considered whether, at the time of the execution of the contract, he was competent to make the same, which contract was made in April, 1889. If the contract was valid the possession by the defendant of the premises may be referred to and upheld under the contract; and in considering the question of whether the defendant wrongfully withheld the possession at the time of the commencement of this action, the validity of the contract may be considered. It would seem from the language of the charge and from the refusal to hold that the plaintiff could not maintain the action, the court impliedly ruled as a matter of law that the contract was invalid. The language used by the judge in the course of his charge seems to bear out that view; he observed to the jury, viz.: “So that, if you are satisfied, I again repeat, that Brown was a lunatic at the time this deed was executed and delivered to Miles, * * * if you find that he was incompetent to do business at that time, you will find a verdict for the plaintiff.” Again, in the course of the charge, the judge observed: “ The ground upon which the plaintiff seeks to recover is that at the time when the deed was executed, on the 1st of July, 1889, he was a lunatic, and therefore incompetént to transact any business which would, in any manner, affect his rights or interests in this property.” It seems that the question of the competency of Brown to enter into the contract of April, 1889, was not distinctly and clearly presented to the jury. However, if it be assumed that the question was passed upon by the jury, we are of the opinion that the evidence was insufficient to uphold a finding that Brown was of unsound mind when he entered into the contract to sell the premises on the 19th of April, 1889. If the verdict rests upon the finding upon that question it ought to be set aside as contrary to evidence; if that question has not been passed upon by the jury, the verdict ought not to stand.

In Crary v. Goodman, 2 Kernan, 266, it was held, viz.: “In an action to recover the possession of land, founded upon the legal title held by the plaintiff, the defendant may allege and prove, as a defense, that he is equitably the owner of the premises and entitled to a conveyance thereof.” This case was approved and followed in Phillips v. Gorham, 17 N. Y., 270. The latter case involved the validity of a deed which is alleged to have been made while the grantor “ was of unsound mind, imbecile and wholly incompetent to bind himself by a civil contract. * * * ” And at the close of the opinion in that case it was said: “ If the defendant was entitled to any restitution he should have presented "his claim at the trial, and it would then have been, as we must presume, properly disposed of.

In Carpenter v. Ottley, 2 Lans., 451, the cases of Crary v. Goodman and Phillips v. Gorham, supra, were referred to with approval, and the court observed: “ A recovery of property, or the value thereof, by a plaintiff who has the mere legal title, will not be allowed against a defendant who has the equitable title to such property, and who might in an action against the plaintiff to compel a specific performance compel the latter to convey or transfer such legal title to the defendant. The defendant must, of course, set up his defense in such a case by way of answer and establish it by his evidence.” In the case in hand the defendant set up sufficiently the facts in his answer, and he set up a performance on his part and a delivery of the consideration mentioned in the contract, and surely if he was not entitled to have the deed remain, he was either entitled to have a decree for a specific performance of the contract, or a return of the consideration paid for the land in the event the contract was invalid, there being no allegation that the contract was fraudulently obtained. The defendant had made some improvements upon the property, and there was some evidence tending to show that he made the purchase in good faith, without knowledge of any infirmity in the mind of Brown at the time the contract was entered into. In referring to the rule that a deed or contract of a lunatic, is void, in Johnson v. Stone, 35 Hun, 383, it was said in the opinion: “ This rule is subject to the qualification that where a sale is for the benefit of the lunatic or his estate, and is made in good faith, without knowledge of his condition, and the party who has made it cannot be put in statu quo, a court of equity will not invalidate the transaction.” If the contract of April, 1889, was valid, the defendant was entitled to ask the judgment of the court, as a court of equity, for such equitable relief as the evidence disclosed entitled .him to, including a deed from the plaintiff. In that aspect of the case, as Talcott, J., said in Cramer v. Benton, 4 Lans., 296, “ He is pro hac vice in a court of equity, and must rely upon its principles to maintain his claim.” It seems the wife of the plaintiff, who is his committee, voluntarily executed the deed for the purpose of releasing her dower to the defendant, and if the defendant shall be found to be entitled to a specific performance of the contract, and shall receive from the plaintiff a deed, probably the defendant would receive the benefit of such release of dower; if, however, the defendant is not able to make out a case for specific performance according to the principles of a court of equity, he may become entitled to an award of damages or a return of the property which he delivered under the contract of April, 1889. Cuff v. Dorland, 55 Barb., 496.

In New York Ice Co. v. The North Western Ins. Co. of Oswego, 23 N. Y., 357, it was said : “ That it was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief demanded, if there was enough left of his case to entitle him to recover, etc.”

We think the facts stated in defendant’s answer and the evidence presented upon the trial Vere sufficient to call upon the court to exercise its equitable jurisdiction in considering what relief, if any, the defendant was entitled to, either by way of defense or affirmative relief. The defendant has averred in his answer that he “ entered into the possession of said premises, and made improvements thereon; that there has been no offer to restore to this defendant the consideration so paid by him as aforesaid, or compensate him for the improvements so made by him on said premises as aforesaid.” We think there should be a new trial.

Judgment and order reversed and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concur in result.