text:
    ANDREW L. DE WOLF, Respondent, v. JOHN WATTERSON, as Sole Trustee of SCHOOL DISTRICT No. 8, in the Towns of Alexandria and Orleans, Appellant.

      Trustee of school district — when a de facto trustee may employ a teacher — power of the trustee to purchase supplies.

    Where one acting as a de facto trustee of a school district employs a qualified person to act as teacher, and agrees to pay for her services a sum equal to the teacher’s board, and lodging and one dollar and seventy-five cents per week, and such person acts as such teacher and renders the services required by the contract, and the validity of the trustee’s action is recognized by the inhabitants of the district, the validity of his election cannot be challenged, and his authority to make the contract denied, in an action brought against his sueces- , sor to recover the price agreed to be paid for the services actually rendered.
    Where there is no school-house in the district and the trustee furnishes a room in a building owned by him, he may properly be allowed to recover the cost of slight alterations made to render the room suited to the purposes to which it is to be applied.
    Appeal from a judgment of the Jefferson County Court, entered upon a decision made by tbat court, after a trial without a jury.
    Eor several years prior to November, 1880, school district No. 8, in the towns of Alexandria and Orleans, Jefferson county was, and still is, a duly constituted and existing school district. No school had been taught in such district for upwards of three years prior to November, 1880. At that time a special- school meeting was held for the purpose, among others, of electing a trustee, and one Henry Knell was elected sole trustee of said school district, who accepted such office and discharged the duties thereof for the enduing year.
    During the year 1881 there was no school building erected for school purposes in Said district. In March, 1881, said Knell, as such trustee, made a contract with one Agnes Moore, who was at the time a duly qualified teacher, whereby he, as such trustee, agreed, to pay her one dollar and seventy-five cents per week and furnish her with board and lodging at some convenient place in the district.
    Eor the purpose of maintaining such school said Knell prepared a portion of his dwelling-house and arranged it for school purposes, at an expense of five dollars, and school was conducted therein by Miss Moore during tlie term, of twenty-four weeks and four days. Knell purchased a stove-pipe, zinc and blank-book for use in said school-room, and all were used therein, the value whereof was eleven dollars and fifty cents. All of said articles were necessary for the purpose of conducting a school in said district.
    Knell procured the necessary fuel for heating the said schoolroom during the time school was taught there, at an expense of five dollars. The total amount of the indebtedness, as found by the court, is seventy dollars and sixty-four cents over and above the amount paid. The plaintiff is the owner of such claim and brought this action to collect the amount thereof.

      W. 'F. Ford, for the appellant.

      C. W. Thompson, for the respondent.
   Hardin, P. J.:

Knell was defaeto trustee of defendant; he acted as trustee and no objection seems to have been made thereto by the school district during his term of office. All but two of the inhabitants in the district having children, patronized the school which Miss Moore kept, at the instance of Knell as trustee. The district took and appropriated the public moneys apportioned to the school district by reason of the school so kept. If there was an irregularity in the election of Knell as trustee, it was waived by the district and it is now too late for the district to dispute the acts of Knell as trustee for the district. (Reynolds v. Moore, 9 Wend., 35 ; Myer v. Crispell, 28 Barb., 54.) Defendant was a quasi corporation and the acts of Knell as trustee, within the scope of his powers, bound the corporation. (Horton v. Garrison, 23 Barb., 176; Brewster v. Colwell, 13 Wend., 28 ; Fister v. La Rue, 15 Barb., 323.)

In the latter case the distinction is clearly pointed out between contracts of employment of teachers, executory, and those which have been executed, and Johnson, J., says: “Having availed itself of the services and received the benefits, it is bound in conscience to pay and will not be heard to say that the original agreement was not made by a person legally authorized to contract,” * * * a jaw raises the same presumptions against corporations in such cases as against natural persons.”

Under the contract brought in question here, it appears that Miss Moore taught twenty-four weeks and four days in the district, and that her school was recognized by the district in various ways. It is too late to question the contract under which the services were rendered. We think the contract for the services of the teacher, which was to the effect that the district pay her a sum equal to her board and lodging and one dollar and seventy-five cents per week in addition, was one which the trustee could make, and that after the district has had the benefit of its execution, it ■ cannot successfully question its validity. (2 it. S. [7 ed.], 1167; Wait v. Ray, 67 N. Y., 36.) We think there was ample proof to show that the defendant was a corporation. There is no denial under oath of the existence of the corporation and therefore the plaintiff was not called upon to make proof thereof. (Code of Civil Procedure, § 1776.) Defendant alleged and proved that he was trustee of such corporation. It was also conceded at the trial that “ the defendant John Watterson was elected trustee of school district No. 8 at the annual meeting in October, 1881 and 1882.” ’

Section 50 (2 R. S., 1168) of the School Law, as amended by chapter 567 of the Laws of 1875, authorizes a trustee to hire a room temporarily for the keeping of - schools whenever it shall be necessary for the due accommodation of the children of the district.” There was no school-house in the district in 1881, and the necessity for a room was apparent to the trustee, and he therefore was authorized to obtain a suitable room for the school. The proof shows that he did so, by furnishing one in his own premises in a discreet and proper way.

He made slight changes to render it suitable, and the evidence shows that his conduct in that regard was proper and for the interest of the district. The stove was bought for the district, and, under the circumstances, the same was necessary. He was authorized to furnish fuel, and the charge therefor was reasonable. (See. 49 of School Law, subdiv. 5, 2 R. S., 1167.) We think the trustees had authority to purchase a blank book for the use of the district. /Sec. 50 of School Law as amended in 1875.) The fact that the stove was put up in a room temporarily provided by the trustee for the use of the school, is no reason why the district should not pay for it. The proof shows clearly it was bought for the district, used by it, and that it is now the owner of it, and entitled to have and dispose of it. The action was properly brought kgainst the defendant as trustee of the district. (Code of Civil Procedure, § 1927.) The contracts were made by defendant’s predecessor in his official capacity, and as we have endeavored to show “ within the scope of his authority.” We think the indebtedness for which the plaintiff recovered was that of the district, and one that it justly owes and ought to pay. We think the judgment of the County Court of Jefferson county should be affirmed.

No certificate is furnished under section 3244 of the Code of Civil Procedure. Whether or not the defendant can recover from the district any costs he may be obliged to pay, in virtue of section 1931 of the Code of Civil Procedure, is not now a question before us.

The judgment of the Jefferson County Court should be affirmed.

Boardman and Follett, JJ., concurred.

Judgment of the Jefferson County Court affirmed.


source: Caselaw Access Project

author: Follett, J.;

license: Public Domain

text:
    SYLVESTER BENJAMIN, Appellant, v. J. WATSON ALLEN, Respondent.
    Practice— trial by the court — findings of fad and conclusions of law must be made and signed — a trial of a contested question of fad by the court cannot be remewed unless such a decision be made.

    Appeal from a judgment, entered upon the trial of this action by the court without a jury.
    The court at General Term said: 44 The appeal book contains a document entitled in the cause, the opening paragraph of which read: The plaintiff requests the court to find as matter of fact.’ Then follow eighteen requests to find matters of fact and three requests to find conclusions of law. Some of these requests are marked 4 found ’ and others 4 refused.’ The signature of the trial judge nowhere appears. The clerk has not certified the ease nor the judgment-roll. Decisions made on trials should be signed in some form by the judge. {Thomas v. Thomas, 14 How., 426; Bttraer v. Baker, 4 Abb., 11.) 4 The decision of the court * * * ^ j | upon the trial of the whole issue of fact must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereupon.’ (Code Civil Pro., § 1022.) The decision must be in writing and must be filed in the office of the clerk. (Code Civil Pro., § 1010.) But, assuming that the document referred to can be regarded as the authentic decision of the trial judge, it is fatally defective in omitting to state conclusions of law determining the case and authorizing the entry of a judgment, and in wholly omitting to 4 direct the judgment to be entered thereupon.’ This court cannot look into the opinion to ascertain what was decided by the Special Term. {Laning v. The N. Y. C. R. R. Co., 49 N. Y., 521; Noyes v. The Children's Aid Society, 70 id., 481; People v. OUs, 90 id., 48.) A county clerk is not authorized to enter a judgment upon an opinion; there must be a decision. (Code Civil Pro., § 1228.) A judgment entered upon the direction of the court upon the trial of an issue of fact, cannot be reviewed unless a decision is signed and filed determining the issues of fact and law. (Bridger v. Weeks, 30 N. Y., 328.) Such has been the law since 1860. (3 Wait’s Pr., 216.) This ease is not like Eaton v. Wells (82 N. Y., 576), in which there was no issue of fact to be determined.
    . “ It was the duty of the attorneys in this case, upon receiving from the judge information of the conclusion arrived at in respect to the questions of fact and law, to have drafted a decision embracing the findings of fact and conclusions of law, and procured it to be signed and filed. The judgment is irregular and ought not to be affirmed, but the appeal should be dismissed.” (Matthews v. The Mayor, 14 Abb., 209; Loesehiglc v. Addison, 19 id., 169.)

      Mon R. Brown, for the appellant.

      Za/ising <& Rogers, for the respondent.
   Opinion by

Follett, J.;

Hardin, P. J., and Boardman, J.,' concurred.

Appeal dismissed, with costs.


text:
    SIMON UERTZ, Respondent, v. THE SINGER MANUFACTURING COMPANY, J. THOMAS JONES and Others, Appellants.

      Action by a husband for an assault upon his wife — the special damages sustained must be alleged in the complaint — geneo'al conception to evidence — when it is unavailing.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the ■ minutes of the justice before whom the action was tried-.
    The action was brought to recover damages for the wrongful taking of a sewing machine from the plaintiff, and for a wrongful assault committed upon his wife, who resisted the officer when he removed the machine.
    The court at General Term, after considering other objections, said : “ It is urged, in behalf of the appellants^ that it was error to admit evidence of, and permit the plaintiff to recover for, the prospective loss of services of the wife, in the absence of an allegation in the complaint that the injuries were permanent, and that the ydfe would be less able to discharge her duties to the plaintiff in the future. "When a plaintiff proves that his person has been injured, the law implies damages, and he may recover such as necessarily and immediately flow from the injury (which are called general damages), under a general allegation that damages were sustained, but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury (which are called special damages), he must allege that special damages were sustained. A plaintiff cannot recover the general damages occasioned by an injury to his wife, child or servant, for those damages belong to and are recoverable only by the person injured. In such a case the law does not imply that the plaintiff- has sustained damages, and his right to recover is limited to such special damages as he has sustained, which are the gist and only foundation for the action, and, unless such damages are alleged, no cause of action is alleged, and only such as are alleged can be proved, if duly objected to. It is not alleged in the complaint that the injuries sustained by the wife are permanent, or that she will be less able, in the future, to render services by reason of the injuries; nor is it alleged that erysipelas or any unustial condition ensued' from the injuries, and evidence of these facts was inadmissible under the complaint, had it been objected to on that ground. (Gilligan v. N. T. and Harlem R. R. Co., 1 E. H. Smith, 453; Stevens v. Rodger, 25 Hun, 54; Whitney v. Hitchcock, 4 Denio, 461; 2 Thompson on Negligence, 1250, §§ 32 and 33; 2 Sedg. on Ham. [7th ed.], 606 ; 1 Chitty’s Pldgs. [16 Am. ed.], 411, 515; Mayne on Damages, chap. 17; Heard’s Civil Pldgs., 310 to 314.) But no objection to this class of evidence was interposed, on the ground that it was inadmissible under the complaint. The objection interposed as “incompetent and immaterial” is insufficient to raise the question. (Gibson v. Stetzer, 3 Hun, 539; Atkins v. El/well, 45 N.'Y., 753.) Objections, to be available on appeal, must point out the particular reason why the evidence is inadmissible, unless it is inadmissible for any purpose.” * * *

      William Townsend and S. M. I/mdsley, for the appellants.
    ' John W. Boyle, for the respondent.
   Opinion by

Follett, J.;

Hardin, P. J., and Boardman, J., concurred.

Judgment and order reversed and a new trial ordered, upon defendants paying costs and disbursements of last trial, costs of the appeal to abide the event. If costs and disbursements, of trial are not'paid, judgment and order affirmed.


text:
    GEORGE A. PORTER and Others, Respondents, v. RICHARD PENN SMITH and Others, Appellants.

      Review of a trial before a judge or referee — unless the case shows that it contains all ihe evidence bea/ring on a disputed finding of fact, the court will assume that there was evidence sufficient to sustain theji/nding — under the new Oode no exception lies to a finding of fact, unless it be wholly unsuppoi'ted by evidence — nor does any exception lie to a refusal to find a fact as requested.

    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee. '
    The plaintiffs were manufacturers of salt at Syracuse, and used for evaporation pea and dust coal for fuel. The defendants were dealers in pea and dust coal at the city of New York. April 25, 1879, the defendants agreed to deliver to plaintiffs 10,000 tons of pea and dust coal at divers times during the season of navigation then next ensuing. Defendants delivered under the contract 9,045 gross tons, on account of which plaintiffs advanced $13,588.57, which the referee finds overpaid the defendants $1,049 at the price per" ton agreed upon, and upon this report a judgment was entered, from which the defendants appeal.
    The court at General Term said: “ The only remaining question presented by the appellants is whether the finding -of fact as to the price agreed upon is against the evidence. The case does not show that it contains all of the evidence, or all bearing upon the finding sought to be reviewed. When it does not so appear, this court will assume that the evidence was sufficient to sustain the findings of fact. (Dalzell v. Raw, 1 T. & C. [Addenda], 4; Beard v. Yates, Id., 21; Perrine v. Hotchkiss, 2 T. & C., 370; affirmed, 59 N. Y., 649; Parsons v. Coburn, 2 T. & C., 324, 329; Higbie v. Heath, 3 id., 783; Howland v. Howland, 20 Hun, 472; Ballou v. Ballou, Gen. Term, Fourth Dept., Oct., 1884.) It is apparent that an appellate court cannot intelligently consider a question of fact, unless all of the evidence bearing upon it is before the court, vnd where a question of fact is sought to be reviewed it should be otated in the case that it contains all of the evidence, or all bearing upon the questions of fact sought to be reviewed. Under the old Code it was held (Perkins v. Hill, 56 N. Y., 87), when exceptions were taken to findings of fact, the court would assume that all of the evidence tending to sustain them appeared in the case. .Under the old Code exceptions could be taken to findings of fact, and were available, but not under the present Code. Under the present Code an exception to a finding of fact is unavailing, unless there is no evidence to sustain it, when it becomes a ruling of law, and an exception is available. (Code of Civil Fro., §§ 992, 993 ; Mead v. Smith, 3 N. Y. Civil Fro. R., 171; S. C., less fully reported, 28 Him, 639 ; Sickles v. Flanagan, 79 N. Y., 224.) If requests to find facts are preferred, pursuant to section 1023, Code of Civil' Procedure, and the court or referee refuses to make any finding whatever, an exception may be taken. (Code of Civil Pro., § 993.) But an exception to a finding of fact, or an exception to a refusal to find a fact as requested, is not authorized by the present Code. Whether error has been committed in this respect, is to be determined by this court upon the evidence and the requests to find facts. Whether a finding of fact is against the evidence, may be determined by this court without an exception. (Mead v. Smith, suprai)

    “It is the duty of the appellant to present a case so made up and settled, that the error complained of be manifest, and not leave the court to indulge in presumptions to overthrow decisions.”

      It not appearing that an error was committed bv the referee, the judgment is affirmed, with costs.

      John L. King, for the appellants.

      Waters & McLennan, for the respondents.
   Opinion by

Follett, J.;

Hardin, P. J., and Boaedman, J., concurred.

Judgment affirmed, with costs.


author: Bradley, J.:

text:
    JOHN C. PLATT, Respondent, v. TIMOTHY BRICK, Appellant, Impleaded with WALTER FINKLE and Others.

      Bower — right of one, purchasing an equity of redemption from a husband,, to compel the assignment to himself of a mortgage upon the premises, in which the wife joined.

    This action was brought by the plaintiff to foreclose a mortgage given to him by one Finlde, and Dora, his wife, to secure a bond given by Finkle. The plaintiff also held a mortgage upon another lot subsequently given to him by Finkle, (but in which his wife did not join), as collateral to the same bond. Finkle having made a general assignment for the benefit of creditors, his assignee sold the lots covered by the two mortgages, subject thereto, with other lots, to the defendant Brick, who subsequently also received a quit-claim deed thereof from Finkle, in which the latter’s wife refused to join.

      Held, that in order to protect the equity of redemption purchased by Brick, against the wife’s inchoate claim of dower, he was entitled to compel the plaintiff to assign to him the said bond and mortgages upon "payment of the amount due thereon.
    Appeal from a judgment of foreclosure and sale in favor of the plaintiff, entered upon the report of a referee.

      Walter W. Holt, for the appellant.

      Lorenzo Morris, for the respondent.
   Bradley, J.:

The action was brought to foreclose a mortgage made by Walter Finkle, and Dora, his wife, to the plaintiff, December 6, 1875, to secure tlie payment of $2,000 in two years and interest annually, according to the condition of the bond of Walter Finkle, who in April, 1878, gave to the plaintiff another mortgage on another lot described as No. 80 (in which his wife did not join) as further security for the payment of the. same obligation. Afterwards, and in that month, Walter Finkle made to one Zimmermann a general assignment for the benefit of creditors,- in which the labds covered by the two mortgages and some other lots were described, giving the assignee the usual power of sale, etc. On the 21st October, 1878, the assignee conveyed to the defendant Brick the lands included in the two before-mentioned mortgages, and two other lots by deed, with the usual .covenants of warranty, except as against those mortgages and another one mentioned in the deed; and Walter Finkle about the same time made to Brick a quit-claim deed of the premises in which his wife did not join. Afterwards, and before the commencement of this action, the defendant Brick tendered to the plaintiff the full amount due on his mortgages, and offered to pay the amount, on the execution by him of an assign- ■ ment to the defendant of those mortgages, and at the same time tendered an assignment for execution, and added that he was willing to take the assignment in such form as would not permit Walter Finkle to be charged personally with the mortgage debt. ..The plaintiff refused to take the money and make any assignment of the mortgages to him, but offered to take the money and satisfy them, to which the defendant declined to accede. The defendant thereupon deposited the money and the draft assignment in a bank, subject to the order of the -plaintiff, on the execution by the latter of the assignment, and so advised him, and the money was subsequently brought into court for the purposes of this action. At the time the tender was made the plaintiff understood the situation of the defendant in respect to the premises. The defendant Brick alleges his purchase subject to the mortgages, the tender, and offer to pay to the plaintiff, and the request that he assign, etc., his refusal, and that the money is brought into court, etc., and asks judgment directing the plaintiff to accept the money and make the assignment, etc. Dora Finkle, the wife of Walter, was not then a party defendant, but afterwards, when the action came on to trial at Special Term, the court, on its own motion and without the request of any party, ordered that she be brought, into court and made a party defendant in the action, which was done, and she answered alleging that the debt secured by the mortgage was that of her husband, and that she by executing the mortgage pledged her inchoate right of dower as surety of her husband merely; that the defendant took conveyance of the mortgaged premises, subject to the mortgage, and assumed the payment of it, and that her, right in that respect is superior to that of the defendant Brick, etc. The action was referred to a referee, who found and determined that the defendant Brick had no equities superior to her, and was not entitled to be subrogated to any rights of the plaintiff under the mortgage and directed judgment for the plaintiff of foreclosure and sale, and to the effect that he might, at his option, sell the mortgaged premises subject to the inchoate right of dower of Dora Tinkle; and judgment was so entered, from which the defendant Brick appeals.

Since the execution by Mrs. Tinkle of the mortgage, and while it remains unsatisfied, her inchoate right of dower is in the equity of redemption only, which she can make available by redemption, when by surviving her husband that right shall become a vested one. The defendant purchased that equity of redemption, and it must here be assumed that he paid what it was worth and is entitled to all the benefits and rights which the title to it gave him. He purchased subject to the mortgage in question. To the extent of that" incumbrance on the premises this inchoate right of dower was then released. By the enlargement of that right the estate purchased by the defendant Brick would be proportionately diminished. If the premises be sold under the decree, subject to her inchoate right of dower, it may be assumed that a portion of the equity of redemption purchased by him will be exhausted to satisfy the mortgage; and when so satisfied this contingent right of the wife will apply to the entire premises. The defendant Brick does not then get what he purchased. To protect his right, and to restrict the inchoate right of the wife to that which she had when he purchased, the defendant Brick desired and sought to pay the amount to which the plaintiff was entitled, and obtain an assignment of the mortgage.

It is contended on the part of the plaintiff that he cannot be permitted to do so, because: 1. The right of subrogation is peculiarly applicable to the relation of principal and surety, and that the defendant Brick is not in any sense a surety, but that his duty is to pay and discharge the mortgage; and that so far as that relation exists between him and the mortgagor, that of the latter is in the nature of surety; and 2. That the wife has a like relation to her husband, as she has released her right as security for his debt by executing the mortgage, and that defendant’s relation to her is no more favorable to him than that of her husband to her, as the-defendant occupies his place in respect to the title to the equity of redemption.

While this contention is plausible it is questionable. The right of subrogation is not limited to the relation of principal and surety in the sense which is usually applied to those terms. It is afforded in cases where a person is required to pay a debt or prior incumbrance to protect his right or to save his property; and in such case, whenever to accomplish such protection it is necessary that he have the support of the security so paid, he will be entitled to it for such purpose if it can be so taken without prejudice to the rights of him to whom the payment is made, and to any superior rights of others (Cole v. Malcolm, 66 N. Y., 363; Barnes v. Mott, 64 id., 397; Averill v. Taylor, 8 id., 44; Snelling v. McIntyre, 6 Abb. N. C., 469; Frost v. Yonkers S. Bank, 70 N. Y., 553, 558; Twombly v. Cassidy, 82 id., 155, 158; Clark v. Mackin, 95 id., 346, 351.)

The limitation expressed in Ellsworth v. Lockwood (42 N. Y., 89)-was but a dictum, and the determination of the case did not depend upon that doctrine. (82 N. Y., 160.) The plaintiff’s mortgage was due when the tender was made. The defendant had the right to pay it, and the assignment of it to him could no^prejudice any legal right of the plaintiff. The saving his property from sale required the defendant Brick to pay the mortgage. The payment and'satisfaction of the mortgage would have the effect to restore the inchoate right of dower which Mrs. Tinkle had released by the mortgage. (Hitchcock v. Harrington, 6 Johns., 290; Runyan v. Stewart, 12 Barb., 537.) And whether or not the mortgage were satisfied the defendant could not question her right on surviving her husband to-take dower of the premises undiminished by the mortgage executed by her, unless he in some manner should hold under the mortgage or have some right derived from the mortgagee. He otherwise-would be a mere stranger to the rights afforded by it, and as against him in sucfi case, in behalf of the widow of the mortgagor, the latter would be deemed seized of the entire estate in the premises at the time of the conveyance to his assignee. (Collins v. Torry, 7 Johns., 278, 282.) It was, therefore, important to the defendant Brick that he have an assignment of the mortgage on payment of the amount of it. By making it to him the plaintiff could not be prejudiced, nor could the rights of Mrs. Finkle, as they existed at the time of the conveyance to the defendant, be impaired. Her inchoate right of dower then, was in the equity of redemption only, and the assignment of the .mortgage to the defendant Brick would not prejudice any right of the mortgagor. The defendant took his title subject to the mortgage. The land is the primary fund for the payment of the debt secured by it. The mortgagor has the right to require the appropriation of the premises to the payment of it, and to that extent and for that'purpose his relation to the owner of the equity of redemption, holding through his conveyance, is that of surety. (Johnson v. Zink, 51 N. Y., 333; affirming 52 Barb., 396.) And the effect, as between him and the mortgagor, is the same as if the defendant on taking the title had expressly assumed the payment of the mortgage debt, except as to his personal liability. He took the property charged with that debt, and as between them and those succeeding to their rights, he and those holding under him will be deemed as having the property and the title to satisfy the mortgage debt. (Ferris v. Crawford, 2 Denio, 595; Tripp v. Vincent, 3 Barb. Ch., 613; Jumel v. Jumel, 7 Paige, 591; Russell v. Pistor, 7 N. Y., 171.) It therefore seems that the defendant Brick, owning the equity of redemption, could not after taking the assignment of the bond and mortgage from the plaintiff charge the mortgagor personally with any portion of the mortgage debt; and that, except as a protection against any charge to which the discharge of the mortgage might expose the premises, the mortgage would be merged in the legal title held by him, and in effect, as against the mortgagor, discharged. (Millspaugh v. McBride, 7 Paige, 509.)

The effect of such assignment, as relates to the inchoate right of dower referred to, would be to continue it in the same condition as when the defendant purchased the equity of redemption. He would, for the pui’poses of his protection in that respect, be treated as a mortgagee in possession, and the remedy of Mrs. Finkle for her dower in the equity of redemption would be in equity and by way of redemption. (Jackson v. De Witt, 6 Cow., 316; Bell v. Mayor, 10 Paige, 49 ; Van Dyne v. Thayre, 19 Wend., 162; Swaine v. Perine, 5 Johns. Ch., 482.) The defendant was entitled to the assignment of the bond and mortgage from, the plaintiff on payment of the sum due him, unless the wife of the mortgagor had some superior equity which should defeat it.

The contention on the part of the plaintiff is that she pledged !her inchoate right of dower as surety for her husband, and is to be treated as such, and that the defendant by taking the property charged primarily with the payment of the mortgage debt is not entitled to a position which will enable him to assert any right to her prejudice in that respect. And in view of that relation it is 'also insisted that if the plaintiff consents, it is her right unless the mortgage is unqualifiedly paid by the defendant Prick, and the lien of it discharged, to take decree to that effect and sell subject to her inchoate right of dower. This inchoate right cannot be impaired without her consent effectually given, and against any attempted invasion of it the same protection will be afforded as to the vested right of dower of a widow. (Mills v. Van Voorhies, 20 N. Y., 412; Garlick v. Strong, 3 Paige, 440 ; Youngs v. Carter, 10 Hun, 194, 198 ; Witthaus v. Schack, 24 Hun, 328 ; Babcock v. Babcock, 53 How. 97; Simar v.Canaday, 53 N. Y., 298.) And for that purpose the wife may have a right of action. But it is but a mere chose in action and is not an interest that she can dispose of by assignment or any sort of transfer; she may release it in such manner that by means of estoppel she is barred of claim of-dower when she becomes a widow. (Malloney v. Horan, 49 N. Y., 112, 118; Marvin v. Smith, 46 id., 571.) It is not an estate, nor is it an existing interest except as founded in possibility of becoming such. It cannot be treated as the separate property of the wife, but it is her right to preserve and protect the possibility of its becoming such. (2 Bish. Mar. Women, § 42; Watson v. Church, 3 Hun, 80 ; In re N. Y. C. and H. R. R. R. Co., 90 N. Y., 345.) She did not, by the mortgage- executed by her, convey any interest or estate in the premises, but merely released and barred to the extent of the incumbrance produced by it, the right to assert or claim dower in the event that she survives her husband, so long as the mortgage remained an effectual extinguishment of it. And her right in that respect would be confined to the equity of redemption, and her remedy in equity to redeem. (Van Duyne v. Thayre, 14 Wend., 233 ; Mills v. Van Voorhies, 20 N. Y., 412.)

She cannot be treated as the surety of her husband because she joins with him in a mortgage of his lands, so as to have any charge against his estate by way of or for reimbursement for the injury she-may sustain by reason of the extinguishment in that manner of dower, and she can only take her dower in the equity of redemption of the mortgaged premises. (Hawley v. Bradford, 9 Paige, 200.) It is otherwise when she joins with him in a mortgage of her property to secure the payment of his debt. Then she is in fact his surety and entitled to all the rights incident to that relation. (Id.; Vartie v. Underwood, 18 Barb., 561; Erie Co. S. Bank v. Roop, 80 N. Y., 591.) The assignment of the mortgage to the defendant Brick cannot abridge any right which the wife of the mortgagor is at liberty at law or in equity to assert in respect to the premises, nor will it impair any rights which she had at the time the defendant took his title. And there is no principle applicable to the situation of the parties which equitably requires him to sacrifice any portion of the estate he purchased in the mortgaged premises, for the benefit of the mortgagor’s wife, or to protect or restore the inchoate right of dower released by the mortgage.

His right to give protection to and preserve the estate he purchased in the premises seems clear. That can be done only by taking an assignment of the mortgages. No reason appears by the record why he was not entitled to them. The deeds import the purchase by him of the entire equity of redemption, and the evidence tends to show that he expected to have that relieved from, the inchoate right of dower of the mortgagor’s wife, but he learned before the conveyances were made to him that she declined to release it. And although lie may, under the circumstances, have refused to complete his purchase, that fact has no importance here. • Her possibility of dower in the equity of redemption remains. So far as the facts are disclosed by the evidence before us it appears that the duty of the plaintiff to assign to the defendant Brick the bond and mortgages was produced by the tender and offer of payment by the latter to him of the amount due on them, with the request to make the assignment, and the defendant ws;s entitled to that relief. There are no other questions requiring consideration.

The judgment should be reversed and new trial granted, costs of this appeal to abide event.

Haight, Angle and Childs, JJ.,'concurred.

Judgment reversed and new trial ordered before another referee, with costs to abide the event.


author:
Bradley, J1:
      Rumsby, J.:

text:
    M. AMANDA SWIFT and WILLIAM R. GELLING, as Administrators, etc., of JOHN H. SWIFT, Deceased, and Others, Respondents, v. EDWARD C. HART and EDWARD C. STEBBINS, as Assignees of CHARLES H. SCHAD, Appellants.

      Fraudulent convey anee— a grantee uiho participates in the fraudulent intent will not be protected even to the extent of the amount actually due to him from the grantor— any liens he had upon the property transferred, prior to its transfer, will be restored on its vacation — after a general assignment has been made the assignee may bring suit to vacate conveyances as fraudulent —1858, chap. 314. —when creditors may.

    In this action, brought by judgment creditors of one Schad to set aside as fraudulent an assignment of certain judgments made by Schad to his attorney, the defendant Hart, it appeared that the assignment was made on January 5,1883. It recited that Schad was indebted to Hart to the amount of $300 for legal services, and that he was desirous of retaining him in proceedings and litigations that might arise in relation to a general assignment of Schad for the benefit of creditors, and provided that the judgments should be taken as a payment in full of all services, and any surplus that might be collected beyond the value of such services was to be held by Hart as collateral to notes of Schad which he had indorsed. The judgments were of the nominal value of $1,800, and of the actual value of $800. On January eighth Schad made a general assignment containing preferences.

      Held^ that in so far as the transfer to Hart was intended to operate as a payment for services to be subsequently rendered, it was fraudulent as to the other creditors of Schad and void.

      That, although if Hart had acted in good faith the assignment would have been ' sustained for an amount equal to the sum then due for services previously rendered, yet as it was found that he took the transfer with an actual intent to defraud the creditors of the assignor, it was wholly void.
    The judgments transferred had been recovered by Hart, as attorney for Schad, and he had, at the time of the transfer, liens thereon for his compensation and disbursements therein.

      Beld, that Upon setting aside the transfer as fraudulent he should be allowed to retain from the moneys collected upon the judgments the amount of the liens he had previously held thereon. (Rumsey,. J., dissenting.)
    Since the passage of chapter 814 of 1858, extending the powers of assignees for the benefit of creditors, the right of action to set aside a fraudulent conveyance of the debtor’s property, made before the execution of the assignment, is vested in the assignee alone. (Rumsey, J.,'dissenting.)

      Leonard v. Clinton (86 1 lun, 288) overruled.
    If the assignee refuses to bring such an action a judgment creditor may bring it and make the assignee a party defendant; in which case the fund recovered will be directed to be paid to the assignee, to be distributed as prescribed in the assignment, oven though the latter contain preferences. (Rumsey, J., dissenting.)
    Appeal from a judgment, entered on the report of a referee.
    On the 5th day of January, 1883, the defendant Schad made a written transfer to defendant Hart of several judgments, amounting to about $1,800, and of the value of about $800, in which it was recited that Schad was indebted to him in the sum of $200 for legal services, and was desirous of retaining him in proceedings and litigations that might arise in matters relating to a general assignment of Schad for the benefit of creditors; and Hart desiring the present payment therefor, and consenting to take those judgments as payment in full for such services .and retainer, such transfer was made. It contained the provision that if there should remain any surplus of the proceeds of the judgments after so paying him, the residue should be held by Hart as collateral to notes held by him on which Schad was indorsor. On the next day Schad made transfers and conveyances of property to other parties, and Monday, the eighth of January, he made a general assignment, containing preferences, for the benefit of his creditors, to the defendant Stebbins.
    The plaintiffs are judgment-creditors of Schad, and brought this action to set aside that transfer to Hart as fraudulent as to the creditors of Schad, and recovered judgment to that effect. This appeal is taken from that judgment.

      W. I. Marcy, for the appellant Hart.

      Ellsworth <& Potter, for the appellant Stebbins.

      David Milla/r, for the respondents.
   Bradley, J1:

The referee found that the assignment of the judgment to Hart was made and taken with the intent to defraud the creditors of Schad.

The defendant Hart is a lawyer and was his attorney and legal adviser. At the time the transfer was made to Hart, Schad was largely indebted, and it was then understood that he might deem it necessary to make a general assignment although the latter had not then definitely determined to do so. The next day he sold and conveyed property to some other parties, and Hart assisted him by drawing the requisite papers, etc., and on Sunday night, the seventh January, prepared his general' assignment, which was executed Monday morning. The defendant Hart had the right without being subject to imputation of any unlawful purpose to obtain payment or security for his claim against Schad, and for that purpose to seek priority over other creditors, and he would not be prejudiced by any fraudulent purpose which Schad may have had so long as the object of Hart was to get such payment or security. The right of the latter to give and of Hart to obtain preference cannot be questioned. (Dudley v. Danforth, 61 N. Y., 626; Beards v. Wheeler, 76 id., 213 ; Auburn Ex. Bank v. Fitch, 48 Barb., 344; Hale v. Stewart, 7 Hun, 591; Horton v. Fancher, 14 id., 172; Jewett v. Noteware, 30 id., 192; Billings v. Billings, 31 id., 65 ; Giddings v. Sears, 115 Mass., 505; Wait on Fraudulent Con., etc., § 390.) But Hart sought to do more than to secure payment of the debt due him, and included payment or security for services which he might perform after the general assignment should be made by his debtor. This was practically a provision for the benefit of the latter. It was a reservation of property to pay for professional aid which he might thereafter require, and to that extent • was in fraud of his creditors who have the right to insist that their insolvent debtor’s estate shall be appropriated to the payment of his existing debts. (Elias v. Farley, 2 Abb. Ct. App. Dec., 11; S. C., 3 Keyes, 398; Mead v. Phillips, 1 Sandf. Chy., 83 ; Planck v. Schermerhorn, 3 Barb. Chy., 644; Leitch v. Hollister, 4 N. Y., 211, 214; Curtis v. Leavitt, 15 N. Y., 132.) The defendant Hart sought to treat the claim for services thereafter to be rendered, as an existing liability of Schad arising out of the contract of employment to the effect that the latter retained him as his ' attorney and counsel, and Hart consented to assume that relation for a consideration to be advanced, that the payment was for his agreement to perform rather than for services to be performed.

It is difficult to permit such distinction to the prejudice of the creditors of an insolvent debtor, or to treat it other than a' purpose to withhold from them a portion of the estate of their debtor to pay the expense of future litigation which he possibly might have, and that is the fair purport of the instrument. (Nichols v. McEwen, 17 N. Y., 22, 24.) It is contended on the part of Hart that the provision may be deemed analogous to security for future advances, and supported. The difficulty ,is that it was made by an insolvent debtor and in view of a general assignment, and provided for an appropriation of a portion of his estate' for future application in his behalf, and cannot be brought within the rule which gives effect and validity to security for future advances. (Truscott v. King, 6 N. Y., 147.) And the instrument cannot be supported as security for the existing debt and liabilities of Schad if the defendant Hart was chargeable "with actual intent to defraud the creditors of Schad,.but is wholly void in that event. (Davis v. Leopold, 87 N. Y., 620.) The referee has found that Ilart took the transfer with actual intent to defraud the creditors of his assignor. The evidence presented a question of fact in’ that respect and seems to be sufficient to support that conclusion of the referee.

The defendant Hart, as attorney for Schad, recovered the judgments so assigned by the latter to him, and had liens upon them respectively for his compensation and disbursements therein (Code Civil Pro., § 66), with the right to retain sufficient of the money collected on them to satisfy it. (Marshall v. Meech, 51 N. Y., 140; Bowling Green S. Bank v. Todd, 52 id., 489; In re Knapp, 85 id., 284.) But ordinarily and presumptively the attorney’s lien for compensation in actions is confined to those respectively in which the services are rendered, and is not general so as to charge the fund recovered in. one action for charges in another or others. (Williams v. Ingersoll, 89 N. Y., 509, 517.)

The question as to the extent or amount of the lien of the defendant Hart on the judgments so recovered by him, does not'necessarily arise here, as that is independent of the assignment to him in question. The referee determined that Hart had no lien upon those judgments for his compensation in the actions in which they were recovered, and directed that he should pay over to the receiver the entire amount received by him on them. This conclusion was probably put on the ground that the lien was extinguished by the transáction of the transfer to him of the judgments, and not restored by the adjudged invalidity of that instrument. This view of the referee is not supported. As a rule, the taking of security for the payment of a claim discharges its lien, which is deemed merged in the securing agreement, but when the latter is judicially declared invalid the lien is usually revived. (Patterson v. Birdsall, 64 N. Y., 294; affirming 6 Hun, 632.) And there is ho reason for application of a different rule where fraud, as to creditors, defeats its operation and renders it void as against them. (Malloney v. Horan, 49 N. Y., 111, 121.) Although the assignment to Hart was valid as between the parties to it, and he could not treat it otherwise while it remained operative, the plaintiffs in proceeding to determin•'ation that it was void as to creditors, cannot assert that a valid lien which was merged in and apparently discharged by it is also destroyed. (Robinson v. Bates, 3 Metc., 40, 43.) The practical effect of the adjudication is that, as to the creditors of Schad no title to the judgments passed by his assignment to Hart, and as a consequence the pre-existing legal rights of the latter were not affected by it. If this view is correct, it follows that his lien, as attorney, remains effectual to protect his compensation in the actions in which the judgments were recovered, to the extent that it existed prior to the transfer in question.

The rejnaining question has relation to the right of the plaintiffs to maintain the action and to the disposition of the proceeds of the judgments. The assignment made by Schad to the defendant Hart was valid as between the parties to it; and if Stebhins had no right or power other than that given by the voluntary assignment of his assignor, he could not maintain an action to set aside transfers made by him in fraud of his creditors. The remedy in such case would be wholly with the creditors of the assignor. (Brownell v. Curtis, 10 Paige, 210, 219; Leach v. Kelsey, 7 Barb., 466.) But by Laws of 1858 (chap. 314), the right to bring such action was given to the assignee for the benefit of the creditors of his assignor, to reach property transferred by the. latter in fraud of creditors.

It is contended by the respondents’ counsel that the power thus given to the assignee does not take away from the creditors the right to maintain an action for that purpose, for the exclusive benefit of those creditors who seek remedy by suit.- The effect of the act of 1858 was to make the assignee the representative or trustee of the creditors of his assignor, in respect to all the rights of property which could be deemed held in trust in behalf of those creditors, by reason of any previous fraudulent transfer by the assignor. And if it operated to vest in him title, as assets for distribution under the assignment, to all claims and interests in property held by others in fraud of creditors of his assignor, and by reason of such fraud in trust for them, with the right to proceed by action in equity to reclaim it from the fraudulent transferee, it would seem to follow that the creditors of the assignor could not respectively, and in disregard of the right and duty of the assignee to make such distribution, obtain by action and appropriate the proceeds of such property to the payment of their judgments. The question, therefore, is whether such rights in respect to property so fraudulently transferred, passed to the assignee Stebbins with the right to receive and distribute the proceeds or avails of it.

The act of 1858 is comprehensive in its effect, and gives to the assignee the character of trustee in respect to the rights, which the creditors would otherwise have, to reach and take property of which the assignor was apparently, but as against creditors not, divested, and held in trust for them by reason of the fraudulent transaction from which the color of title was derived. The assignee is more than the voluntary assignee of the insolvent debtor. He is, by force of the statute a trustee for the creditors to the extent of the power conferred, as effectually as if his appointment had been made by or pursuant to law vesting in him title for the purposes of the trust. (Southard v. Benner, 72 N. Y., 424; Glenny v. Langdon, 98 U. S., 20.) The right of the assignee in such case must be founded in the fact, that by force of the statute the assignment operates to vest in the assignee as such trustee the exclusive right to reach the property of the assignor covered by his fraudulent transfer, and to appropriate its proceeds for the benefit of the creditors. And to accomplish that purpose it was only necessary to give the assignee the right of action to do so. It follows that the remedy of the individual creditors in that respect is taken away from them and devolved upon their trustee, and that their rights are subject to the direction for distribution given by the assignment. (Childs v. Kendall, 30 Hun, 227; Lowery v. Clinton, 32 id., 267; Spring v. Short, 90 N. Y., 538; Crouse v. Frothingham, 20 N. Y. Weekly Dig., 22, reversing 27 Hun, 123; Bate v. Graham, 11 N. Y., 237; Babcock v. Booth, 2 Hill, 181, 185.) This view is in conflict with that of the court in Leonard v. Clinton (26 Hun, 288), and in accord with the conclusion in that respect in Lowery v. Clinton (supra).

The refusal of the assignee to bring action in such case does not divest him of the right of property as trustee, nor afford the right to individual creditors to appropriate as the result of their action the proceeds to the payment of their judgments. The assignee cannot, as against the creditors entitled to share in distribution under the assignment, waive any substantial rights which they may have in respect to the property of the assignor. (Bate v. Graham, 11 N. Y., 237; Crouse v. Frothingham, 20 N. Y. Weekly Dig., 22.) The property so fraudulently assigned remains in equity as to creditors the property of the assignor (Moncure v. Hanson, 15 Penn. St., 385) and the assignee who represents the creditors is not permitted to defeat their right to treat it as part of the assets.

And on his refusal to proceed by action to reclaim the property the creditors, or any of them, may institute action in equity for that purpose making the assignee a party defendant. And the proceeds of the recovery are assets for distribution pursuant to the direction of the assignment. (Bate v. Graham, supra; Everingham v. Vanderbilt, 51 How., 177; affirmed 12 Hun, 75; Davenport v. Dows, 18 Wall., 627; Dewey v. Moyer, 72 N. Y., 70.) The liability in such case is to the assignee, and the right of recovery is in him only, but on his refusal to seek the remedy the creditor has the right to accomplish the purpose by bringing him into court, which will by judgment give the requisite direction in the event of recovery to place the proceeds where they belong, with a view to the ultimate rights of the creditors. The recovery is practically in behalf of the assignee as trustee for them, and to dispose of the fruits of it pursuant to the power given' by the assignment. The action in its nature and effect is one to compel the execution of the trust.

The fact that the assignee refused to bring the action does not necessarily charge him with bad faith. He was at liberty to exercise fairly his judgment, and it seems he did in his declination to sue, and acted in good faith and without collusion with anybody. The judgment may be modified so as to conform to the views before given. The plaintiffs are not entitled to have it adjudged that the proceeds of the judgments in question be paid by the receiver to them or applied on their judgment.

The judgment appealed from should be so modified as to adjudge that whatever lien the defendant Hart had on the judgments mentioned in the alleged transfer to him, before and at the time it was made, and the amount with which they respectively were and remain so charged, may be ascertained by a reference; that he pay over to the receiver the money collected or received by him, if any, less the amount thereof which he is entitled to retain to satisfy and discharge such lien or liens; that after paying his legal fees and expenses, the receiver, with the residue of the proceeds of those judgments pay, first, to the plaintiffs or their attorney the amount of their taxable costs in thi3 action, and such additional allowance of costs, if any, as has been or may be granted them .by the court; second, to the defendant Stebbins or his attorneys, if sufficient thereof remain, his taxable costs of this appeal; third, to the defendant Hart or his attorney, if sufficient thereof remain, his taxable costs of this appeal; and, fourth, the residue, if any, to the defendant Stebbins as assignee.

The portions of the judgment not consistent with the above, are reversed, and the judgment as modified affirmed, without costs to either party as against any other of them, otherwise than as before mentioned.

Barker and Haight, J J"., concurred.

Rumsby, J.:

I regret that I cannot concur with the majority of the court either in the result they have reached or in the reasons given, but I will state briefly the points of my dissent and the reasons for it.

First. I do not think the appellant Harf should be permitted to retain his lien as attorney on the judgments which were transferred to him in fraud of creditors. The referee has found that Hart knew of the fraudulent design of his assignor; that he connived at it and assisted Schad in carrying it out, and that the assignment to him was part of the general scheme of Schad to defraud his creditors. In short he finds that Hart was an active party to the fraud of the debtor Schad.

Before this fraudulent transfer was made to him, Hart had a lien as attorney on some of the judgments assigned. He took the assignment in payment of the sums secured by this lien and for other considerations; that' is, as to the amounts of the liens he had good consideration for the judgments. The transfer of the title to the judgments gave him the sole ownership of them, and of course while that ownership existed put an end to his lien both because the complete legal title, vested in Mm, operated to merge his lien (3 Pars. Cont., 245), and because the debt which his lien secured was paid by the transfer of the judgments to him in payment. He stands in the position of a man who having a valid lien upon property to secure a debt has given up the lien and taken the property in payment of the debt with the express intent of cheating the other creditors of his debtor. I think the rule is well settled that when the grantee is a party to the fraud of Ms grantor the transfer will not be permitted to stand as security for any purpose of indemnity or reimbursement. (Davis v. Leopold, 87 N. Y. 620; Miller v. Tollison, 14 Am. Dec., 712.) The reason is that the law will never assist a man out of any position in which he has put himself for the purpose of defrauding others, but will leave him just where he has placed himself. He has voluntarily surrendered his lien for dishonest purposes, and he cannot when he is detected in Ms attempt to cheat, ask to be relieved from the consequences at the expense of the creditors whom he unsuccessfully tried to defraud. But it is said that though in strict law this lien was lost, yet equity will protect it. It is quite true that equity, for equitable purposes and for the benefit of a person who is entitled to its protection will not permit a merger of the less estate with the greater, although the two have united in the same person. But the reason of this rule precludes its application to this case. It exists for the benefit of persons who are entitled to be relieved in equity from the operation of a strict rule of law. It does this to insure justice. If the party claiming it has no standing in a court of equity he cannot have this relief, and if to prevent the merger would carry a fraud into effect, or is not necessary to work substantial justice, the court will permit the merger to take place. (2 Pom. Eq. Juris , § 794) The same reason which refuses to a grantee payment of money he has^ actually advanced, should operate, I think, to refuse to reinstate a lien which he has surrendered. The case of Malloney v. Horan (49 N. Y., 111) is not in point, because there was no finding in that case that the plaintiff, who sought to retain her dower right, was a party to the fraud of the grantor. The effect of the modified judgment is not only to reinstate Hart in the position which he abandoned in his unsuccessful attempt to cheat the creditors of Scliad, but to compel those creditors to pay the costs which he has incurred in that attempt. I do not think there is any rule or precedent for equity to aid a fraudulent grantee to that, or any extent, and for that reason I think that as to Hart the judgment should be affirmed, with costs.

I dissent also from the holding of the majority of the court, that by force of chapter 3L4 of the Laws of 1858, the. right of action of individual creditors to attack a fraudulent transfer of property, is taken away after the debtor has made a general assignment for the benefit of his creditors. It is well settled that a transfer of property by a debtor in fraud of creditors, is good between the parties and vests in the assignee all the title of the assignor. (Henriques v. Hone, 2 Edw. Ch., 120; affirmed 13 Wend., 240; Rankin v.Arndt, 44 Barb., 251, 256.) There is left to the debtor nothing which he can assign or transfer to any one. By the act of the debtor the assignee for the benefit of creditors could get no interest in the property transferred to Hart. This much is conceded. But it is said that the statute is comprehensive enough to vest in assignees for creditors the sole right to attack transfers made by their assignors in fraud of creditors, and to take such right from the individual creditors. Such are not the words of the statute. As was said in Leonard v. Clinton (26 Hun, 288), ‘f it gives a right but takes away none.” And, as is pointed out in that case, it is right there that the statute differs from the statute construed by Eento, J\, in Bate v. Graham (11 N. Y., 237). After the property has been transferred in fraud of creditors, the title, as is conceded, is in the grantee. All that creditors have is a right of action to attack the fraudulent transfer. They have no equitable estate nor any other estate. At the most they have an equitable lien. All that the assignee has in that regard he gets by the statute. That gives him the right for the benefit of creditors to avoid a fraudulent transfer. It is no estate, but only a right of action, and it is nothing else.

The statute has all its effect if it has that interpretation. There is nothing inconsistent with the statute in leaving a right of action in the creditors. If the assignee ought to be made a party that can always be done. If he is not, there is nothing in the fact of a general assignment which prevents the creditor from maintaining his action. The relief to be granted and the parties to the action are all within the control of thé court, and no harm can come from sustaining the right of action in the creditors; while as appears from this very case great injustice may result from refusing the right. The Commission of Appeals has held that the fact that the judgment debtor has made a general assignment for the benefit of creditors, after the fraudulent transfer, is no defense to an action by a creditor to reach the property fraudulently assigned. (Fort Stanwix Bank v. Leggett, 51 N. Y., 552.) That case could not have been decided as it was if the plaintiff had no cause of action. So in Dewey v. Moyer (72 N. Y., 79) Earl, «I., says that if it had been pleaded that there was an assignment in bankruptcy thq plaintiffs /¡ould have shown that they represented all the debts which the banhrvpt owed, in which case these creditors could maintain the action. But no matter what they represented if the assignee only could bring the action. So the case of Leonard v. Clinton (supra) is precisely in point upon the question here presented. That case was stated in Childs v. Kendall (30 Hun, 227) to have been overruled by Spring v. Short (90 N. Y., 538). But that is a mistake. Spring v. Short did not turn on the statute of 1858 which was not mentioned in it and was not the basis of the decision. In that case the plaintiff sought to set aside a mortgage made by his debtor. It appeared, first, that the mortgage was valid; second, that the debtor had conveyed the land covered by the mortgage to an assignee for the benefit of creditors who of course took the title to the mortgaged property whether the mortgage was valid or not. The Court of Appeals and the General Term held, what was the law before the statute, that the assignment being valid, the mortgaged property belonged to the assignee although the mortgage should be set aside, and therefore the judgment creditor had no standing in court to set aside a lien upon property which could not, under any circumstances, be reached by his judgment.

But there is nothing in that case which did or could overrule Leonard v. Clinton, nor is there laid down any rule inconsistent with it. The subsequent case of Lowery v. Clinton (32 Han, 267) treats the case in 26 Hun as overruled, and for that reason does not follow it. I think, however, that it is the law, especially as it -is fortified by the case cited from the Commission of Appeals.

I think, too, that the judgment entered on the report of the referee was right in directing that the judgment of the plaintiffs should be paid out of the fund, and I do not think the proceeds of this suit should go to the assignee to be distributed under the assignment. If it goes to the assignee I have no doubt that he must distribute it under the directions of his trust. But I think it ought not to go to him at all.

It is quite clear that whatever the assignee gets from his assignor, this property did not pass to him. There was no intention that it •should, but, on the contrary, so far as the assignor was concerned, he did all that he could to keep the property out of the hands of the assignee and not to subject it to the assignment. His intention, was that the assignment should operate only on the property actually turned over to the assignee. As to that he proposed that it should be distributed to the preferred creditors. The property assigned to Hart, the debtor proposed to keep himself. The assignee was not his trustee as to that, by his «own act, at least. We cannot presume any intention on the part of the assignor to subject that property to the trusts he had created, because he limits the trust to the property assigned and because he did his best to keep it himself. We are not required, therefore, to give this property to the preferred creditors by way of carrying out the intention of the assignor, for he had no such intention. If it 'goes to the assignee, it must be either because he alone has the right to it or because the policy of the law puts it there. But I think I have shown that the creditors as well as he have a right of action to pursue this property. The assignee has not therefore the sole right to it. Neither do I think the policy of the law is subserved by paying it over to him to be distributed under this assignment. The assignment is one with preferences. Such an assignment is lawful, but it is viewed with distrust. It is a source of fraud and neither the right to prefer nor the preference itself is to be extended. (Grover v. Wakeman, 11 Wend., 187.) Where the property of an insolvent is to be distributed the maxim of the law is first that “ equality is equity,” and that, so far as it can control, debts will be paid equally and pro rata. It is desirable that, so far as may be, all shall share alike. If this fund is turned over to the assignee, none will share in it until the preferred creditors have been paid in full. This is contrary to the rule of law, and as we have seen it is not required by the intention of the assignor. There is no reason then why this fund should go to swell the dividend of the preferred creditors, to the exclusion of the creditor who has brought it into the fund. But there is a rule of law which is applicable to such cases, and which, I think, will operate to. give the plaintiffs the benefit of the fund. It is that the law favors the vigilant creditor. The plaintiffs have brought this fund into being. They have discovered it and made it available.' But for them it would still be in the hands of the parties to the fraud. The preferred creditors have no claim on it, because it was never intended that they should have it. In no event can it go to the creditors who are not parties to this action and are not preferred. It would seem to be just that in this case as in others the plaintiffs should have the benefit of their own vigilance. No rule of law is broken by giving it to them. No case is cited which requires it to go to the assignee. It is said, indeed, that he is the trustee for the creditors, but, as' I have shown, if he can be said to be such it is only as to the property embraced in his deed and not as to other property not intended to be included in it. And as to that property while he is nominally the trustee for all the creditors, he is actually a trustee to carry into effect an unfair and unequal distribution of the fund which is permitted by the law under protest and not encouraged nor extended. For these reasons it seems to me that the plaintiffs ought to'have the benefit of this fund and that the judgment should be affirmed, with costs.

Judgment modified as indicated in the opinion, and as modified affirmed. Judgment to be settled by Bradley, J.

       Of Bradley, J. — [Rep;


text:
    DENNIS WARDEN, Appellant, v. EMMA FROST, Respondent.

      Practice — but one judgment should be entered where the plaintiff’s recovery is so small as to give costs to the defendant— the recovery cannot be assigned so as to prevent the setting off of the lesser against the greater amount.

    On June twenty-fifth the plaintiff entered a judgment in his favor for forty four dollars and nine cents, the amount of a verdict recovered by him upon the trial of this action in the preceding March. July sixteenth he assigned the judgment to his attorneys for their services in the action. July twenty, sixth the defendant entered a judgment for seventy-four dollars and ninety-four cents for costs.

      Held., that but one judgment should have been entered, and that one for the difference between the two judgments, and that the court properly granted a motion made by the defendant to have the two judgments vacated and a single one for the difference between them entered.
    Appeal from an order of the Erie County Court, setting aside judgments entered respectively in favor of the plaintiff and defendant in this action, and directing a judgment to be entered for the difference between the two judgments, in favor of the defendant.
    Upon the trial of this action, which was brought to recover a balance alleged to be due to the plaintiff, the latter recovered a verdict of forty-four dollars and nine cents, on March 25,1884, and on June 25, 1884, he entered a judgment thereon. On July 16, 1884, he assigned the verdict and judgment to his attorneys in consideration of their services rendered in the action. ’ On J uly twenty-sixth the defendant entered a judgment for his costs, amounting to seventy-four dollars and ninety-four cents.

      Jenkins, Oongdon db Jenki/ns, for the appellant.

      Adelbert Moot, for the respondent.
   Bradley, J.:

The plaintiff had a verdict for forty-fonr dollars and nine cents, and judgment was entered for that sum. The defendant was entitled to costs and another judgment was entered for seventy-four dollars and ninety-four cents costs in his favor. On defendant’s motion an order was made setting aside both judgments and directing the entry of one judgment for the residue of costs after deducting the amount of the verdict. The judgment in favor of the plaintiff after its entry, and ten days before the judgment was entered in favor of the defendant, was by the plaintiff assigned to his attorneys in the action in consideration of their services as such attorneys. The plaintiff’s counsel contend that the assignees of the judgment are entitled to protection, and that the judgment cannot, on motion, be set-off or the amount of it applied in satisfaction pro tanto of the defendant’s costs.

It is well settled that a judgment in one action cannot, by motion, be set-off against a judgment in another action, as against a third person who is a bona fide assignee of the latter judgment. (Perry v. Chester, 53 N. Y., 240; Prouty v. Swift, 10 Hun, 232; Roberts v. Carter, 38 N. Y., 107.) The counsel for the plaintiff seeks to.apply that rule to this .casé, and with that view asserts that the judgment was assigned before the defendant’s judgment was entered, and therefore no right to set-off accrued to the defendant before the assignment was made. (Firmenich v. Bovee, 1 Hun, 532.)

If the motion here was to set off judgments in two actions there would be no difficulty in supporting the proposition on the part of the plaintff. (Ennis v. Curry, 22 Hun, 584; S. C., 61 How., 1.) But this is not that case. There were two judgments entered in this action, when properly there could be only one, and that based upon the verdict. (Runnell v. Griffin, 8 Abb., 39.) And in such case the lesser amount should be set off as against the larger of the sums to which the respective parties are entitled, and the judgment be effectual for the difference in favor of the party entitled to it. (Code Civil Pro., § 3234; Johnson v. Farrell, 10 Abb., 384.) This right is one of the incidents of the action which is superior to the lien of the attorney or to the effect of an assignment. It is the right of either party to the action to have the result represented by the difference, and to thus make or receive payment to the extent of the smaller of the two amounts, which may be awarded to them respectively in the action. This rule the law applies to actions, and is not disturbed by the Code.

The provision of the Revised Statutes (2 R. S., 354, § 18) relating to set-offs, had relation to actions for that purpose where a different rule to some extent prevailed than that when sought by motion. (Ennis v. Curry, 22 Hun, 584.) "We think the court below properly disposed of the motion,

The order should be affirmed.

Barker, Haight and Lewis, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    ANN M. DAWLEY, Appellant, v. EMILY N. RUGG and CARLOSS A. RUGG, Respondents.

      Estoppel — release of a grantc»' from liability on a covenant of wcvrranty does not affect the title of the grantee to the land.

    The plaintiff and the defendant Emily N. Rugg each, claimed title to a piece of land by virtue of deeds received from one Rugg, since deceased. The plaintiff claimed that she had been induced to surrender her deed to the grantor, her father, who had destroyed it without her consent and subsequently deeded the land to the said defendant, who had knowledge of the plaintiff’s prior title. In an action of ejectment a judgment was recovered by the plaintiff, under which she went into possession. Thereafter the said defendant brought an action against the executors of the deceased grantor, alleging the plaintiff’s recovery and entry, and seeking to recover damages for a breach of the covenant of warranty contained in her deed. This action was settled and a release given by the defendant, in consideration of a sum of money paid by the executors, by which she released to them, and to all the heirs of the deceased, all her cause of action on all the covenants in the deed, and all claims or rights of action thereon. Thereafter the defendant paid the costs in this action, took a new trial under the statute and recovered a verdict, upon which a judgment in her favor was entered.

      Eeld, that she was not estopped, by the release given to the executors and heirs-at-law of Rugg, from so doing.

      Appeal from a judgment, entered against the plaintiff on a verdict rendered at the Cattaraugus Circuit, and from an order denying a motion for a hew trial made at Special Term upon a ease and exceptions.

      W. Woodbv/ry, for the appellant.

      W. S. Thrasher, for the respondents.
   Bradley, J.:

The action is ejectment brought in March, 1880. The first trial resulted in a verdict and judgment in favor of the plaintiff, who caused it to be executed and went into possession. The defendants afterwards paid the costs, obtained an order vacating the judgment and took a new trial under the statute. The new trial was had in February, 1888, and the verdict was for the defendants.

The plaintiff’s motion for new trial was denied and judgment entered on the verdict. The plaintiff appeals. It appears that both the plaintiff and the defendant Emily N. Rugg claimed title to the premises, under deeds alleged to have been made by one Jonathan G. Rugg to them respectively; that the plaintiff was his daughter, and the defendant Carlos A. Rugg was his son, and husband of defendant Emily; 'that after plaintiff had táken possession under the judgment in her favor, the defendant Emily brought an action upon the covenants in the deed to her against.the executors of the will of Jonathan G. Rugg, who died intestate in 1811. The plaintiff in that action alleged the conveyance to her, with covenants of quiet enjoyment, etc., ankd that she had been ejected by title paramount. The executors by their answer denied that the plaintiff Ann M. Dawley had any title to the premises at the time of the conveyance to the defendant Emily M. Rugg, and that the latter took the title by the deed of Jonathan G. Rugg to her. That action came on to trial and during its progress was settled by the parties to it and discontinued. The terms of the settlement appear in a release under seal, made by her to the executors, which purports to be an instrument made between her of the first part and tlie executors and all the heirs-at-law of Jonathan G. Rugg, deceased, of the second part, and after the recital of the fact of the execution and delivery by the testator of the deed to her, with covenant of warranty, and the purpose of the action, there follows. “ Now, in consideration of the settlement of said action and certain moneys paid by said executors to said Emily N. Rugg, the said Emily N. Rugg does hereby release to said executors, and to all the heirs-at-law of said deceased, all her cause of action on said covenant of' warranty, or any covenants in said deed, and all claims or right of action on said covenants against said executors or the heirs-at-law of said deceased grantor.” The amount paid to her by the executors on such settlement was $500. After this she obtained the order vacating the judgment in this action and granting a new trial as before mentioned. The plaintiff then put in a supplemental complaint, setting forth the facts of that action and the settlement and release, and on the trial she proved all those facts and her judgment entered on the first verdict. She also gave evidence tending to prove, that on or about the 27th day of May, 1875, the testator and his wife executed and delivered to her a deed of "the premises, which was not recorded; that the grantor, after its delivery, borrowed the deed of her and destroyed it without her knowledge or consent; that before the defendants had or claimed any title to" the premises, they were advised of the plaintiffs’ claim-of title, and that she gave her father a life lease of the premises at the time she claimed to have taken the deed. And it appeared that she was the daughter of the testator and that she had one sister and three brothers at the time this action was commenced. The defendants gave evidence tending to prove that the deed claimed by plaintiff to have been delivered by her father to her was never, in fact, delivered, but before delivery was destroyed with her consent. The defendant Emily N. Rugg read in evidence a warranty deed of the premises made by Jonathan G. Rugg to her of date July 6, 1876, and recorded in the proper clerk’s office, September 21, 1876.

The plaintiff’s counsel requested the court to hold that the effect of the release made by the defendant on such settlement was tc defeat her claim of title to the premises under the deed to her as an estoppel, or as release of her interest in the premises. The court declined to so determine and submitted the question of fact in respect to the title to the jury, and a verdict was rendered for the defendant. Exceptions were duly taken to the several rulings.' The verdict is supported by the evidence, unless the effect of the release was such as to defeat the rigid of the defendant to assert title under the deed of July, 1876.

The contention of the learned counsel for the appellant is that by the release the defendant is estopped from claiming title under that deed; and -although the jury have found that the plaintiff had no title under the deed to her, yet she as one of the heirs-at-law of the testator was entitled as tenant in common to recover her share in the land. It is difficult to see how 'the defendant’s title taken by that deed to her was affected by the settlement and release referred to< It did not, by its terms, release any interest in the premises, and no-greater effect can be given to it than its purpose, ascertained by its terms, fairly justifies. The testator made to her a deed importing a conveyance of the land to the defendant, and in addition, as protection to the grantee, inserted a covenant of quiet enjoyment. The-conveyance of the title did not depend upon the covenant, that afforded a mere right to the grantee to require him to reimburse her, if by reason of a defect in the title she should be disturbed in her possession by some party having the better title. It was a mere personal obligation assumed by the grantor, which was of no value if her title was perfect. If by an arrangement with her grantor he had obtained a release of her from the effect of that covenant and paid her for it, that would not restore the title to him or affect h§r interest in the premises, but would merely relieve him from his covenant of indemnity.

The considerations involved here so far as relates to the title of the premises reach no farther than that. The testator had made his deed containing the usual covenant for quiet enjoyment to the defendant and afterward died. His personal obligations came to the executors of his will. And for breach of his personal covenants they, as his representatives, were chargeable. After judgment in ejectment against this grantee and her eviction, they are, as such, by action, charged with liability for breach of the covenant in the deed of their testator, and without waiting for the determination of the action by judgment they settle with her and take a release in behalf of themselves as executors, and of the heirs-at-law of their testator from liability on such covenant. The practical effect of it is that for a consideration paid by the executors the covenant is taken from the deed. And thereafter the defendant was necessarily required to rely solely on her alleged title. The legal effect of the release is nothing more than that. .There does not appear by it any purpose to release any interest she may have had in the property, or in any manner to interfere with her right to contest the title of the plaintiff, or- to assert her own in this or any action.

If follows that the plaintiff’s exceptions were not nor were any of them well taken. The reasons which induced the executors to make the settlement and pay the $500 for the release are not important here, nor is it proper for us to inquire whether there were any circumstances attending that transaction which will enable them to require the defendant to repay to them the amount they paid to her. There was then a judgment in-support of the plaintiff’s claim of the title, with costs. The executors had the right' in view of the covenant to cause a new trial to be taken and defend the action in behalf of the defendant Emily. It may have been their judgment, voluntarily and justifiably exercised -in view of the then existing circumstances, and without any reprehensible inducement on the, part of the defendant, that the interest of the estate which they represented would be best promoted by the settlement as made; that as the matter then stood release from the covenant on those terms was preferable to the hazards-of the litigation with the defendant, or with the plaintiff in defense of the defendant’s title, or with both the plaintiff and defendant.

If the judgment in favor of the defendants remains the final judgment, it establishes judicially that there was no breach of the covenant, but that judgment was entered upon a verdict resulting from a disputed question of fact. ¥e give no consideration to the rights as between the defendants and the executors on, that subject. There is nothing in the issue to require it, and nothing appears to permit it. '

The judgment and order should be affirmed.

Angle and Childs, JJ., concurred; Haight, J., not sitting.

Judgment and order affirmed.


author: Bradley, J :

text:
    TIMOTHY W. GOODING, Appellant, v. SPENCER A. BROWN and Others, Respondents.

      Agreement for the devise of property by a will— it is void, if not expressed in writing.

    On or about July 16, 1881, the plaintiff and one Wells Gooding, who were1 brothers, and who then owned certain real and personal property as teuants in common, made an oral agreement by which it was agreed that each should by his will devise and bequeath to the other all his property, except that Wells should bequeath to their sister $10,000 of his property. Wills, disposing of the property as provided in the agreement, were at that time executed and deposited with the attorney who drew them. The sister died in 1880. Thereafter Wells took his will away from the attorney, and upon his death, in 1881, no will made by him could be found. Upon the trial of this action, brought by the plaintiff against his brother’s heirs-at-law and next of kin to have the will established, or to compel the defendants to release and convey to him such rights and interests as he would have acquired under the agreement if it had been fulfilled, the court found that the will had been destroyed and revoked by Wells and that he died intestate.

      Held, that the action could not be maintained; that the agreement sought to be enforced was in effect an agreement to sell and convey land in a specified manner, e. g., by will, and was void under the statute of frauds because not reduced to writing.
    Appeal from a judgment dismissing the complaint on the merits, entered on a decision made at the Ontario Special Term.

      J. Iienry Metcalf and W. F. Gogswell, for the appellant.

      E. M. Morse and E. G. Lapha/m, for the respondents.

      See post, page IBS.

   Bradley, J :

The plaintiff and "Wells Gooding were brothers, and owned property, real and personal, as tenants in common. They had a sister, Angeline Gooding. And on or about the 16th day of July, 1881, they, by oral agreement, mutually agreed that each of them should, by will, devise and bequeath to the other all his property, except that "Wells Gooding should bequeath to the sister $10,000 of his property. The wills were, about that time, duly executed by them respectively in accordance with that arrangement, and deposited with their attorney who drew them. The sister died in January, 1880. After her death, and in the summer of the same year, Wells Gooding called for, received and took away his will, and he died in July, 1881. No will made- by him could be found. And the trial court found (and such finding is supported by the evidence) that Wells Gooding revoked his will by destroying it, and died intestate. This action is brought against his heirs and next of kin. And the relief prayed for by the complaint is, that' the will of Wells Gooding be established and proved, and in the event that that cannot be done, that the plaintiff have judgment directing the defendants to release and convey to him'all their rights, title and interest in the estate, real and personal, which Wells Gooding owned and had at the time of his death, so as to vest in the plaintiff title to it as effectually as the devise and bequest by the will would have done if it had been and become operative by probate and record after his death. There is no support for the proposition to establish and prove the will.

The contention of the learned counsel for the plaintiff is, that the agreement before mentioned was valid and effectual to afford the relief sought. This action is, in its nature, one for specific performance of that agreement. The mutual promises of the.two brothers constituted the only consideration for the agreement, and that was sufficient. But the sufficiency of consideration does , not necessarily render the agreement valid. We shall assume that the plaintiff is entitled to the relief, if the agreement, as made, imposed on the parties to it any legal obligation to observe and perform its provisions. The parties then owned real and personal .property amounting in value to about $100,000, and Weils Gooding continued to own his portion of it to the time -of his death. This' agreement on the part of Wells Gooding was, that on his death the plaintiff, if his survivor, should take by devise and bequest all his property, subject only to the bequest of $10,000 to the sister. This, in practical effect, was an agreement to sell the property and to vest title in that particular manner. It was within the statute of frauds and void, and unless there was such part performance as to bring it within the rule which supports the right in such cases to enforce performance, it is difficult to see any-right of action in the plaintiff. Nothing can be regarded as requisite part performance to take such agreement out of the operation of the statute of frauds, which does not place the party seeking relief in a situation which is a fraud upon him, unless the execution of the contract be required in his behalf and for his protection. (2 Story’s Eq. Juris., § 761.; Phillips v. Thompson, 1 Johns. Ch., 149 ; Parkhurst v. Van Cortland, 14 Johns., 15, 35; Wheeler v. Reynolds, 66 N. Y., 227; Winchell v. Winchell, 17 N. Y. Weekly Dig., 104; Levy v. Brush, 45 N. Y., 589; Dung v. Parker, 52 id., 494.

The agreement here was executory; no «rights of property could vest until the devise and bequest became effectual by the decease of, the party making the will. The fact that the plaintiff executed a will does not establish performance of the contract on his part so as to divest himself of any rights of property, nor did it place him in a situation from which he could not retreat without prejudice to any rights existing at the time the agreement was made. The revocation by Wells Gooding of his will, was a mere failure on his part to transfer his propertj'- by will to the plaintiff. The latter lost nothing by the agreement or by any part performance of it, he simply failed to acquire by devise the estate of his brother. The element of fraud which equity will recognize in support of the right to execution of a contract within the statute, does not appear in this case. (Gould v. Mansfield, 103 Mass., 408.)

The disposition of property by will for legitimate purposes, may be the subject of a valid and effectual contract. In Johnson v. Hubbell (2 Stockton [10 N. J. Eq.], 332; S. C., 5 Am. Law. Reg., 177), the mother died intestate, leaving real estate and a son and daughter. By the law of New Jersey, in such case, the son would take two-thirds and the daughter one-third. The father agreed with the son that if he would make his sister equal with him in the mother’s estate, he would, by his will, give them his estate in equal shares. The son in performance of the agreement, did so release to his sister as to make their interests equal in the mother’s estate. The father afterwards died leaving his will, by which he gave the daughter and her children most of his estate and the son nothing.

The son brought the action for specific performance. The court held that the agreement was valid and effectual, but sustained a demurrer to the bill, because intervening rights had rendered the specific performance of the contract impracticable. There was a complete performance of the agreement by the son by release of property, and the undertaking of the father was one the law would enforce in behalf of the son, and it was a fraud on the latter to deny him the benefits of the agreement which had induced him, in execution of it, to convey his property to another. In that case the parol contract was fully executed by him on the faith of the promise of his father. In Parsell v. Stryker (41 N. Y., 480) the testator by agreement in writing with the plaintiff, upon certain considerations expressed, agreed to devise by his will his farm to the latter. He failed to do so, but before his death conveyed the premises to one of the defendants, took a mortgage to secure the purchase-money, and assigned that to another defendant. The action was brought to compel the first mentioned defendant to convey in performance of the testator’s agreement, and for discharge Of the mortgage as against the other defendant.

It appearing that the defendants were chargeable with notice of the contract with the plaintiff, the relief was given by the court. The court said that “ the agreement was in legal effect a sale and purchase of the farm.”

In Podmore v. Gunning (1 Simons, 644), the testator devised and bequeathed his property to his wife, and inserted in the will this provision: “ Having perfect confidence that she will act up to those views which I have communicated to her in the ultimate disposal of my property after her decease,” etc. And it was alleged that the oral directions given by him to her were that she should will the property to certain persons named. The court held that such directions would be effectual to create a trust in his devisee in behalf of such persons, but dismissed the bill because they were not established by the evidence. The proof of the facts alleged would have shown the .existence of a valid trust in behalf of the alleged beneficiaries.

The propositions stated by the courts in those eases rest on sound and well settled principles. To support an undertaking to make a particular and legal disposition of property by will, or to make payment in that manner, the agreement by which it is assumed must be valid in its inception, or become effectual by the requisite part performance to bring it within the rule before mentioned. And a trust not expressed in the will may be created by parol under certain circumstances. (Stephens v. Reynolds, 6 N. Y., 454; Williams v. Fitch, 18 id., 546; Todd v. Weber, 95 id., 181; Matter of Will of O’Hara, Id., 403; Sherman v. Scott, 27 Hun, 331.) The circumstances under which a trust in that manner is effectually-created, are such that the defeat of the trust will in equity be treated as fraud.

In Williams v. Fitch, the testator relinquished his expressed purpose to alter his will, so as to make certain, the payment of the full amoiint of specified legacies, by reason of the promise of the devisee to pay them in full if the assets should be insufficient. The latter was deemed trustee, and required to pay the deficiency out of the estate devised to him.

In Matter of O'Hara’s Will, the testatrix devised and bequeathed her estate to persons in terms unqualified by the will, with their acquiescence in her declared purpose and expectation that they would take and apply it for the benefit of others. Held, that those to whom the devise and bequest were so made did not take as beneficiaries, but as trustees only.

And in Sherman v. Scott, the testatrix received title to property under a parol arrangement with a person through whom she received it, that she should give him a life estate- in it, and devise the residue to him by will if he survived her. He did survive her and she died intestate. Held, that the agreement was valid, and the court effectuated its purpose. The doctrine of none of the cases cited has any application to the one at bar. The claim of the plaintiff for relief has no support, except such as is given by the provisions of the alleged agreement, and they are valueless in themselves. The rights of property of neither of the parties to the agreement, during the life of Wells Gooding, were disturbed or in any manner affected by it, or by reason of it. The agreement took nothing from the plaintiff, and the failure of his brother to perform it diverted him of expectation only.

The judgment should be affirmed, with costs.

Haight, Angle and Childs, JJ., concurred.

Judgment affirmed, with costs.