author: Smith, J. :

text:
    JULIA SCHWARTZ, as Executrix, and AUGUST FALKER, as Executor of, &c., of LEOPOLD SCHWARTZ, Deceased, Respondents, v. EDWIN S. JENNEY and others, Appellants.

      Lien of an attorney for general professional services — when one to whom a cause of action is assigned, before judgment, for a pre-existing debt, talces subject thereto.

    While the defendants were, as attorneys for one Levi, prosecuting an action brought by him upon a promissory note, Levi assigned his interest therein to the plaintiffs’ testator. The only consideration for the assignment, ■which was drawn by one of the defendants, was a pre-existing debt due from Levi to the assignee.

      Held, that the defendants had a lien upon the proceeds of the judgment recovered in the action, not only for their services rendered therein, but also for their general account for professional services rendered to the assignor, and that the rights of the assignee were subject thereto.
    Appeal from a judgment in favor of the plaintiffs entered on the' report of three referees.
    The action was brought by the plaintiffs, as executors of, etc., of Leopold Schwartz, deceased, to recover certain moneys collected by the defendants upon a judgment recovered in a suit brought by them as the attorneys of one Levi, upon a promissoiy note indorsed by one Seymour. While the suit was pending, and before judgment therein, Levi assigned his interest in the note t'o Schwartz, the plaintiffs’ testator, in consideration of a pre-existing debt held by Schwartz against Levi. The assignment was drawn by one of the defendants, and it recited that the note was then in suit. On the trial the defendants claimed a lien upon the money collected by them, for general professional services rendered by them for Levi, as well as for their services in the suit on the note. The referees held that the lien of the defendants was limited to the services and disbursements in the particular suit.

      W. C. Ruger, for the appellants.
    An attorney has a lien upon all papers, securities and money in his hands, belonging to his client, for his services, not only in the particular action to which such papers, &c., relate, but for any services rendered by him for such client before or while such papers, &c., were in his possession. (Bowling Green 8m. Bit. v. Todd, 52 N. Y., 489 ; McPherson v. Gox, 6 Otto, 404; In re Hatch c& Van Allen, 18 L. J., 214; Picha/rds v. Platel, Or. and Ph., 458; Anonymous, 12 Mod., 554; Hughes v. Ma/yre, 3 T. P., 275 ; Mitchell v. Oldfield, 4 T. P., 122; Pead v. Dapper, 6 T. P., 362; Worrell v. Johnson, 2 Jac. and Walker, 214 ; Twrwim, v, Gibson, 3 Atk. 720 ; Merrifield on Attorneys (ed. of 1830), 227 ; Story on Agency, § 383; 2 Kent Comm., 640; Maugham on Attorneys, p. 303 (ed. 1825); Dawson on Attorneys, 136 ; Stevenson• v. Blalteloch, 1 Maulé & Selwyn, 535 ; Exp. Hesbiit, 2 Sch. & Lefroy, 278; HolUs v. Ola/ridge, 4 Taunt., 807; St. Jolm v. Diefendorf, 12 Wend., 261, Wa/rd v. Syme, 9 How. Pr., 16.; Brown v. Mayor, &c., 11 Hun, 25; Stewa/rt v. Flowers, 44 Miss., 514; McDonald v. Hcpier, 14 Ga., 89 ; In re Paschal, 10 Wall., 483 ; McPherson v. Gox, 6 Otto, 404; In re Hatch c& Vcm Allen, 18 Alb. L. J., 214, Opinion by Oh. J. Waite.)

      G. G. Baldwin and OorneUus E. Stephens, for the'respondents.
    The lien of an attorney upon a judgment recovered by him, in the absence of notice, extends only to the taxable costs in the suit. (Marshall v. Meech, 51 N. Y., 140; HaAght v. Holcoinb, 16 How. Pr., 173 ; Fi/nnenich v. Bovee, 1 Hun, 532; Pul/oer v. Ha/rris, 52 N. Y., 73.)
   Smith, J. :

Had Levi continued to own the note until judgment was obtained and collected, his attorneys would have had a lien on the money for their services and expenses in that suit, and also for then- general account. Attorneys and solicitors have a general lien upon the papers of their clients, in their possession, for the balance of their professional accounts (2 Kent Comm., 640), and an attorney’s lien extends to the funds recovered by him, as well as to the client’s papers. (Id.)

The lien of the attorney, as between himself and his client, is not . to be confounded with a mere right of ;,set-off. Lien has been defined as a right by the possessor of property to hold it for the satisfaction of some demand. As against Levi, the defendants had the right to. retain possession of the note in suit, and, after it ripened into judgment, of the money which they collected upon it, until their claim against him for professional‘services was satisfied.

The only question in the case, is whether their right was affected by the transfer of the title to the note from Levi to Schwartz, before judgment. The consideration of the transfer was a preexisting debt, owing by Levi to Schwartz. It does not appear that the debt was discharged, or any security surrendered. The note remained in the possession" of the defendants, and they continued the prosecution of the suit upon it, with» the knowledge of Schwartz, and with his conciu-rence. -Schwartz took the title to the note, knowing that a suit upon it was in progress, and his title, I think, was subject to the then-existing lien of the attorneys, for professional services, rendered by them to his assignor, not only in that particular suit, but also on general .account.

The circumstance that one of the defendants drew the instrument of transfer is immaterial. The defendants are not estopped thereby from setting up their lien. Schwartz, as has been seen, parted with nothing in consideration of the transfer, and he purchased subject to the equities • existing between Levi and his attorneys. Had he paid value, and purchased in ignorance of the relation existing between Levi and the defendants in respect to the note, the case would have been materially different.

The rule that a hona fide settlement or payment by the opposite party, before judgment and without notice of the attorney’s lien, will prevail against the lien, has no application to this case. Neither has the rule that the attorney’s lien upon a judgment yields to the opposite parties right of set-off. (Nicoll v. Nicoll, 16 Wend., 446.) The rights of persons litigating with the client, are not involved here. The question is between the attorneys and their client’s assignee, not a purchaser for value, and in my opinion the defendants have a lien for tlieir general account existing at the time of the transfer. (See Bowling Green Savings Bank v. Todd, 52 N. Y., 489.)

The judgment should be reversed, and a new trial ordered before one or more other referees, costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    MARY RAYNOR, Appellant, v. LUCY MARIA RAYNOR, and others, Respondents.

      Foreclosure of a mortgage by advertisement — upon whom notices must be served— 1844, c7i. 346 — who “ a subsequent grantee ” within — dower is to be based on the value of the land when alienated by the husband — effect of an assignment of a security without the debt to which it is collaten'al — computation of amount of mortgage from which the widow must redeem — when her dower to be charged on lands in the inverse order of their alienation.

    In March, 1840, Richard Raynor conveyed to Henry and Willett Raynor, for $15,000, a tract of land then subject to a mortgage for that amount given by him to the said grantees in December, 1835, to secure the payment of his bond in the same amount. At the time of the conveyance the said bond and mortgage, with others (amounting in all to $35,000), had been assigned by the mortgagees to an insurance company, to secure their bond for $25,603. In December, 1840, Willett and Henry Raynor made a general assignment of all their property, real and personal, in trust for the payment of their debts, and in 1843 they were discharged under the bankrupt act. The as signment was never recorded. In July, 1845, the company assigned the bond for $25,603, with the securities held as collateral to it, to one Horace White, who on the 5fch of the following August assigned the $15,000 bond and mortgage (but not the bond for $25,603) to Hamilton White for $3,500. The latter foreclosed the mortgage by advertisement, claiming that there was due, and to become due on it, $21,547, and purchased the land himself for $3,000. Notice of the sale was given to Richard, but none to Willett or Henry Raynor, nor to their wives.
    Thereafter, the premises were, by various mesne conveyances, transferred to the defendant, Lucy Raynor, who prior to the commencement of this action had conveyed by warranty deeds portions thereof to certain of the other defendants. In 1870 Willett Raynor died, and thereafter this action was 'brought by the plaintiff, his widow, to recover her dower in an undivided one-half of the said land.

      Held, that the plaintiff was a “ subsequent, grantee ” within the meaning of ch. 346 of 1844, and that as no notice of the sale had been served upon her, her rights were not affected by the attempt to foreclose the mortgage.
    That her dower was to be computed upon the value of the land at the time of the execution of the general assignment.
    That as the $15,000 bond and mortgage was held, with others, only as collateral to the bond for $25,603, its assignee could only enforce it so far as the latter remained unpaid.
    That the assignment of the $15,000 bond and mortgage to Hamilton White, being an assignment of a collateral security only, was, 'at law, void, but would, in equity, be regarded as an assignment of such an interest in the principal debt, as was equal to the consideration paid, viz., $8,500.
    That in determining the amount due upon the mortgage so that the plaintiff might redeem therefrom, she was to be charged with $3,500, and interest thereon from August 5, 1845, and 'credited with the rents and profits which might have been realized by those in possession, over and above taxes and repairs, excluding such as arose from permanent improvements made by the mortgagees.
    That, after the amount due upon the mortgage had been so computed, the plaintiff, to redeem therefrom, must pay a gross sum, to be ascertained by the principles on which the present value of life annuities are calculated, considering the portion of the annual interest on the amount due on the mortgage, which she was bound to pay as the annuity.
    That as the plaintiff’s right to dower in the, portions sold by the defendant, • Lucy Raynor, was not cut off by such sales she was not entitled to have the amounts realized thereon, applied upon the mortgage.
    That the whole value of the plaintiff’s dower, when so ascertained, should be charged upon such of the land as still remained unsold in the hands of the defendant, Lucy Raynor.
    Appeal from a judgment entered upon the trial of this action at a Special Term.

      Geo. F. Comstock, for tbe appellant.
    Willett and Henry Raynor, mortgagees and grantees of Richard Raynor, not baying been served, the foreclosme as to them was simply void. ( Watson v. Spencer, 20 Wend., 260; Feed v. Marble, 10 Paige, 409.) The trust assignees of Willett and Henry Raynor were not made parties; nor was it necessary, because that assignment was never recorded. (See Laws of 1844, p. 529.) Therefore they were cut off, and that trust extinguished. But inasmuch as the creators of the trust, Willett and Henry Raynor, were not foreclosed or in any wise affected by reason of not being made parties, the inevitable effect of extinguishing the trust was to vest or re-vest in them their whole estate fr.ee from the trust and subject only to the mortgage. When a trust or power to sell lands for the benefit of others is terminated, by the object failing, by the impossibility of execution, or by any event except the actual execution of such trust, the estate eo instanti is all in the author of such trust. (1 Rev. Stat., 1 ed., 729, ¶ 62, 67; BOetzel v. Ba/rber, 69 N. Y., 1, 13; Jaeltson v. Ja/nsen, 6 Johns., 73; Sharpsteem v. Tillon, 2 Cow., 651; O’Brien v. Mooney, 5 L)uer, 51; Peoli v. Brown, 26 How. Pr., 374; Qui/n v. Slaw/ner, 49 Barb., 128; Nichol v. Wal/worth, 4 Denio, 385.)

      D. Pratt, for the respondent.
   Smith, J.:

The action was brought to recover dower in an undivided half of a tract of land in the city of Syracuse, containing about one hundred and fifty-four acres. The facts found by the trial court, so far as they are material to the appeal, are as follows: The plaintiff is the widow of Willett Raynor. They were married in September, 1835, and he died in May, 1870. In March, 1840, Willett Raynor became seized of an undivided half of the land referred to, by a quit-claim deed from Richard Raynor to Henry Raynor and himself, expressing the consideration of $15,000. The deed was recorded in April, 1840. At the time of the conveyance, the lands were subject to a mortgage executed by Richard to Willett and Henry in December, 1835, to secure the bond of Richard of the same date, for the sum of $15,000, payable with interest in ten equal annual installments, which bond and mortgage were then held by the American Life Insurance and Trust Company, the mortgagees having assigned them to that company in September, 1838, with several other bonds and mortgages (in all about $35,000) as collateral, to secure their own bond to that company for $25,603. The assignment was recorded in September, 1838, In December, 1840, Willett and Henry Raynor, then having title to the lands in question under the quit-claim deed from Richard, executed an assignment of all their property, real and personal, to William H. Alexander and Jasper Smith, in trust for the payment of the debts of the assignors. That assignment was never recorded: In 1843, Willett and Henry Raynor were declared bankrupt, and were discharged in bankruptcy, in proceedings commenced on their own petition. Their schedule of debts set forth their bond of $25,603, then still held by the Trust Company, and the assignment of the collaterals thereto, above mentioned, including the bond and mortgage for $15,000.

In July, 1845, the Trust Company assigned to Horace White the bond of Willett and Henry Raynor, with all the collaterals above mentioned, including the $15,000 mortgage, for the expressed consideration of $7,500. On August 5, 1845, Horace White assigned the Richard Raynor bond and mortgage to Hamilton 'White, for the consideration expressed of $3,500; but he did not ■assign the bond of Willett and Henry Raynor for $25,603, nor any of the other bonds and mortgages collateral thereto. On the same day that Hamilton Whit* took the assignment, he commenced statutory proceedings to foreclose the $15,000 mortgage, claiming due, and to become due, $21,547. The one hundred and fifty-four acres were sold under those proceedings, on 5th of November, 1845, and bid in by Hamilton White for $3,000. Notice of the foreclosure and sale was served only on the mortgagor, Richard Raynor, and his judgment creditors.

In March, 1848, Hamilton White and wife conveyed the whole premises to Alfred H. Hovey, consideration expressed, $7,000; and in May, 1849, Hovey and wife conveyed them to the defendant, Lucy Maria Raynor, then the wife and now the widow of Henry Raynor; consideration expressed, $10,000.

In September, 1859, Lucy Maria Raynor, with her husband, sold and conveyed seventy-three acres — -part of said land — to Oakwood Cemetery, consideration expressed, $15,000; and in May, 1871, she sold and conveyed to the Syracuse University thirty-three acres of said land, consideration expressed, $29,000, retaining in her possession forty-eight acres unsold. Each conveyance was with warranty, At the time of the commencement of this suit the cemetery association and the university were in possession of their respective parcels. They, with others, who need not be named, were made defendants. Lucy Maria Raynor, the respondent, is the only defendant who answered the complaint. Before suit, dower was demanded of the respondent, and refused.

The Special Term held that the plaintiff was not barred by the foreclosure, and was entitled to dower, to be allotted out of the forty-eight acres yet held by the respondent. By this appeal the plaintiff seeks to review certain rulings of the court as to the computation of the value of the dower, and the terms on which it is to be awarded.

By the seizin of her husband during coverture, the plaintiff became invested with an inchoate right of dower, in one undivided half of the one hundred and fifty-four acres, subject to the $15,000 mortgage.- That right became consummated on the death of her husband, in 1870, unless it was cut off by the foreclosure of the mortgage. No notice of the foreclosure sale was served upon the plaintiff, as required by the act of 1844 (L. 1844, ch. 346), which was then in force. It is insisted by the respondents’ counsel that before the foreclosure the plaintiff’s husband had been divested of his title, by the general assignment and his discharge in bankruptcy, and that, for that reason, notice was not required to.be served on him, and consequently, not on his wife. The latter position is a non sequiktr. Assuming for the present that the plaintiff’s husband no longer had title,(it does not follow that she was divested of her right of dower. No act, deed or conveyance of the husband, or judgment or decree confessed by or recovered against him, will prejudice the wife’s right to her dower. (Denton v. Nanny, 8 Barb., 618.) The plaintiff was a “ subsequent grantee,” within the meaning of the act of 1844, “ claiming under the mortgagor, by virtue of a title subject to the mortgage.” (Act of 1844, §§1, 4.) She had done nothing to divest herself of her right, and service of notice of the sale was necessary to bar her dower. She is, therefore, entitled to dower on redeeming the mortgage, which, as to her, is unforeclosed.

The value of the plaintiff’s dower is to be estimated upon the value of the property, at the time of its alienation by her husband. A question is made as to the time when the husband parted with his title. We concur with the Special Term in its conclusion that the husband’s title passed by the trust assignment, executed by him and Henry Raynor, for the benefit of their creditors. As the assignment was general, and conveyed all the property of the assignors, real and personal, the land in question passed, although not specifically mentioned in the schedules. (Platt v. Lott, 17 N. Y., 478 ; Turner v. Jaycox, 40 Barb., 164.)

The appellant’s counsel insists that there is no proof that the trust was ever executed — indeed, that there is evidence tending to show it was not executed; and that as the assignment was not re-

corded, the assignees were cut off by the foreclosure, although not served with notice, and, consequently, that the title reverted to the assignors.

We think, however, that it is" to be presumed from the circrnn''stances of the case, that the. trust was executed. Prominent among these, are the lapse of time between the assignment and the foreclosure; the nature of. the trust, it being one which the interests of creditors and the duty of the assignees required to be closed without unnecessary delay; and the fact that the defendant, and those under whom she claims, have been in undisturbed possession of the land, for at least twenty-five years, asserting title.

The plaintiff’s counsel gave some evidence at the trial, tending to show that Willett Raynor was in possession until the conveyance from White to Hovey, a period of about eight years subsequent to the assignment, but there is no evidence that whatever possession he then had was adverse to the title of the assignees. There is no question in this action as to the lona fieles of the assignment. The date of the assignment, therefore, is to be taken as the time of alienation by the husband. The value of the property, at that time, as found by the Sjaecial Term, was $10,000 for the whole, or $5,000 for the undivided half. ■

We agree with the Special Term, that for the purpose of redeeming, the plaintiff is not entitled to have the money which was realized by the defendant, from, sales of portions of the premises, applied upon the mortgage. Her right to dower in the portions of the land sold by the defendant was not cut off by such sales, and if she had commenced her action against the purchaser alone, her' title would have been as good as it is against the defendant. But in such action, she would not have been entitled to have the moneys paid by the purchasers applied upon the mortgage. As to her, the mortgage is to be regarded as unpaid, as well as unforeclosed. The only effect of the sales upon her claim is that, as the defendant conveyed with warranty, it will prevent circuity of action to allot her dower in the unsold portion of the premises, if practicable. It is equitable towards the purchasers to apply the lands in the inverse order of alienation, to the satisfaction of the incumbrance of dower, as well as of that of the mortgage.

Several questions arise as to the amount which the plaintiff should be required to pay in order to redeem. The Special Term held that the dower right is subject to the full amount for which the mortgage was given, with interest from its date (1835), and also interest upon interest from the time of the foreclosure. We are of the opinion that these rulings are erroneous.

1. We do not think that the mortgage is an incumbrance upon the dower right, for the whole $15,000. Bor aught that appears, the conveyance of the equity of redemption by (Richard to Henry and Willett Raynor, in 1840, would have operated as a merger of the morgage, but for the previous assignment to the trust company. The trust company held the mortgage, and the bond accompanying it, not absolutely, but merely as collateral to the debt of the assignors, Henry and Willett Raynor, and the assignors had the right to redeem or reclaim them on payment of the principal debt. That interest or right of the assignors was not cut off by the foreclosure, as they were not made parties to it. And the same right or interest still exists in the representatives of Henry and Willett Raynor, for aught that appears, unless it was merged in the fee of the land — an alternative that does not affect the result. There is no evidence that the interest of the Raynors in the bond and mortgage was transferred to the defendant. It follows that the defendant has no interest in the $15,000 bond and mortgage, unless she represents the principal debt held by the trust company, or some portion of it. Does she represent any part of that debt ? As we have seen, the company assigned the principal debt, and all .the collaterals, including the $15,000 bond and mortgage to Horace White, in 1845, for the consideration expressed of $7,500, thus putting him in their shoes. Soon .after, Horace assigned to Hamilton White the $15,000 bond and mortgage, for the expressed consideration of $3,500, but he did not assign the principal debt or any other collaterals. At law, this last assignment was a nullity. The security cannot be separated from the debt, and exist independently of it. (Merritt v. Bartholick, 36 N. Y., 44, and authorities there cited; Wanzer v. Cary, 76 N. Y., 526.) A different rale prevails in cases whei’e the collaterals are severable from the principal, as where they consist of bills of exchange, or other negotiable paper. (Hawks v. Hinchcliff, 17 Barb., 492 ; Battle v. Coit, 26 N. Y. 404.)

But, notwithstanding the assignment was inoperative at law, an equitable view of the matter is, that as Horace White then held the principal debt, and as the $3,500 advanced by Hamilton presumptively went towards its payment, the latter acquired an interest in the debt, and in this particular collateral, to the amount paid by him, and the successive deeds from him to Hovey, and from Hovey to the defendant, may be regarded as assignments of -such interest, the mortgage being unforeclosed as to the plaintiff. We are of the opinion, therefore, that the extent of the interest of the defendant in the $15,000 bond and mortgage is the sum of $3,500, with interest on it from the 5th of August, 1845 — the date of its payment by Hamilton White. If the defendant has any other interest than as mortgagee in possession, in the undivided half of the premises in which the plaintiff claims dower, such interest is subject to the plaintiff’s claim.

2. The foreclosure being wholly inoperative as to the plaintiff’s rights, we perceive no ground for making a rest, as of the time of the foreclosure, in the computation of interest.

3. The plaintiff is entitled to have applied on the mortgage the rents and profits realized by the successive holders of the mortgage in possession, or which might, with proper care, have been realized over and above taxes, and ordinary repairs, and other expenses of that character, but without charging the defendant with the increased rents and profits arising from the use of any permanent improvements made by the mortgagee. (Bell v. The Mayor, 10 Paige, 49.) The Special Term so held, substantially. After the amount due to the defendant upon the mortgage shall have been computed, upon the data and according to the rules above stated, the mode of ascertaining the sum which the plaintiff must pay'in order to redeem, will be that stated by the chancellor in Bell v. The Mayor (supra). That is to say, she must pay a gross sum, which is to be ascertained upon principles on which the present value of life annuity is calculated, considering the portion which the plaintiff is to pay of the annual interest on the amount due to the defendant on the mortgage, as the annuity.

These conclusions lead to a reversal of the judgment, and as some different state of facts may be shown, there should be a new trial, with costs to abide the event.

Taícott, P. J., and Hardin, J., concurred.

Ordered accordingly.


text:
    JOHN ROGERS and others, Appellants, v. THE ROCHESTER, HORNELLSVILLE & PINE CREEK RAILROAD COMPANY, and others, Respondents.

      When the General Term, on appeal from a judgment, is bound by a decision of the same Genernl Term on an appeal from an order in the same action — power of the legislature to cure defects in a petition on which town bonds hare been issued.

    This appeal was taken from a judgment dismissing the complaint in this action, which was brought to have certain railroad bonds, issued by the town of Greenwood, canceled on the ground that an act (ch. 638, of 1874), which undertook to cure certain irregularities in the petition for their issue, was invalid. Upon the hearing of the appeal, it appeared that the validity of the bonds, and of the act in question, had already been passed upon by the General Term of the Fourth Department, upon an appeal from an order, made in this action, continuing a temporary injunction granted therein,, and that the judgment below conformed to this decision.

      Held, that the former decision of the General Term should be accepted as final and conclusive.
    Where a petition, presented by the tax-payers of a town, for leave to issue town bonds to aid in the construction of a railroad, was defective in not stating that the corporation, which it was proposed to aid, was a railroad company in this State, as required by the act authorizing their issue, but was in all other respects sufficient, and all the proceedings were regular. Held, that the legislature had power to pass an act curing this defect in the petition and validating the bonds issued upon it.
    Appeal from a judgment entered'on the report of a referee, dismissing the complaint herein.
    The action was brought by certain tax-payers of the town of Greenwood, Steuben county, under chapter 161 of the laws of 1872, for the cancellation of certain bonds, purporting to have been issued by the said town, under the town bonding acts, in aid of the construction of the Rochester, Hornellsville & Pine Creek Railroad Company, and for an injunction, pendente Ute, restraining all proceedings for the payment of the said bonds.

      II. L. Comstock and WilUam Rumsey, for the appellants.

      George B. Bradley, for the respondents.
   Smith, J.:

The defendants insist that the curative statute passed in 1874 (L. 1874, chap. 638) validated the bonds in question, and is a complete defense to the action. Other defenses were set up, but this is the only one to which it is necessary to advert.

The validity of the statute is questioned by the appellants. It is plain that if it is valid, the plaintiffs have no cause of action, and the judgment should be affirmed.

This court has already passed upon the statute referred to, and adjudged that it was valid, in this very case, sub nomine Rogers v. Smith (5 Hun, 475), on appeal from an order continuing the temporary injunction.

It is insisted on the part of the plaintiffs, that the decision of a court upon an order continuing or vacating an injunction is not decisive either as to the facts or the law upon the final hearing of the cause. I11 general, that is probably the rule, but I think if does not apply to the circumstances of this case. O11 the appeal from the order there were no disputed facts: the only question involved was that of the constitutionality or validity of the act; and that question, and that alone, was passed upon by the court, in a well-considered opinion, after an exhaustive argument by counsel. The opinion was written by Mr. Justice Gilbert, and concurred in by the presiding justice, E. Darwin Smith, and Mr. Justice Merwin. The judgment now appealed from cannot be reversed without overruling that decision, and under the circumstances the adjudication of our juedecessors must be regarded as settling the.question for this case in this court. (Revell v. Hussey, 2 Ball & B., 286 ; Earn on Legal Judgment, 292.)

The plaintiffs’ counsel suggest that the decision in 5 Hun proceeded upon an erroneous idea of the law, as since settled. This suggestion has reference to the apparent conflict between the case of Duanesburgh v. Jenkins (57 N. Y., 177), which had thenfbeen recently decided, and the cases of The People v. Batchellor (53 Id., 128), Williams v. Duanesburgh (66 Id., 129), and Horton v. Town of Thompson (71 Id., 513); the latter cases holding that the legislature has' not power to eompel a town, without its consent, to issue its bonds or contract a debt in aid of a railroad company. But all the cases agree that the legislature may, by a subsequent act, validate an irregular exercise by a town of a power to bond itself in aid of a railroad company previously conferred upon it. The only defect alleged in the proceedings to bind the town of Greenwood, was that the petition of the tax-payers omitted to state the fact that the corporation which it was proposed to aid was a railroad company in this State. (People ex rel. Rogers v. Spencer, 55 N. Y., 1.) In all other respects the petition was sufficient; the requisite consents had been obtained, and the proceedings were regular. I am not aware of any case holding that the Legislature has not power to cure a defect of that nature. At any rate, our predecessors in this dejiartment have held that the power exists, and I think that their decision should be accepted as conclusive upon us.

The judgment should be affirmed with costs.

Talcott, P. J., and Hardin, J., concurred.

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ANNA M. COX, Defendant.

      Hearsay evidence — when inadmissible — the rule as to the admission of a whole conversation, where part of it is called out, explained — cross-examination of witness —when party cannot discredit witness by contradicting his testimony as to new matter drawn out on.

    The defendant was tried and convicted of administering poison to the wife and children of one Taft, with intent to kill them. On the evening of January 26, 1879, a woman delivered at Taft’s house, a letter purporting to come from him, enclosing several small packages, of what purported to be medicine, but was in fact poison, and instructed her to administer the contents thereof to herself and children. The letter was delivered a few minutes before seven, of a dark evening, and the woman could only be identified by her voice, which was heard by Taft’s eldest son, who opened the door, and by Taft’s wife, who was in the house.
    Mrs. Taft having testified that she recognized the voice to be that of the accused, was asked, on her cross-examination, if she did not ask the son, when he came back into the room, who it was that brought the letter, and answered that she did. She was then asked by the prosecution, “What was said between Willie and you, about who it was that brought the medicine,” and was allowed, against the accused’s objection and exception, to testify that Willie said it was Anna Cox, the accused.

      Held, that the declaration of the son to his mother was mere hearsay, and that, as there was nothing in the testimony which made his answer competent by way of qualification or explanation, the court erred in admitting it.
    The mother of the accused was called by the defense, and gave evidence tending to show that Anna was at home at the time the letter was delivered. Having stated on cross-examination that she did not know that Anna wrote a letter on the morning of the day the one in question was delivered, she was asked whether she did not tell certain persons named, that Anna had written a letter on ’the morning of that clay, and replied that she did not. Subsequently, these persons were called, and allowed, against the accused’s objection and exception, to testify that the mother had told them that Anna had written a letter on the morning of that day.

      Held, that the mother having made no reference to the writing of the letter on her direct examination, the people, by attempting to prove by her that the daughter had written one on the day in question, made her for ihnt purpose their own witness, and could not thereafter discredit her testimony, in regard to it. by showing contradictory statements made to other persons, when not under oath. '
    The right to cross-examine a witness as to any fact, for the purpose of discrediting him, by contradicting his testimony by other witnesses, is limited to those matters which tend to contradict, discredit, vary, qualify or explain the testimony given by tbe witness, on direct examination.
    Certiorari to the Erie Court of Sessions to bring up the conviction of the defendant for a felony.
    The defendant was convicted of administering poison to the wife and children of one Taft, with intent to kill. Taft lived in Clarence. He was away from home on Sunday, the 26th of January, 18J9. On the evening of that day a woman delivered at Taft’s house a letter, ptu’porting to have been written by Taft to his wife, inclosing some small packages, purporting to contain potions of medicine, and instructing her to administer them to herself and her children. The packages contained a deadly poison. The letter was delivered about fifteen minutes before seven, in the evening. The evening was dark, and the person who delivered the letter could not be identified by her features, or otherwise, except by Her voice. She was met at the door by William Taft, the oldest child, and the letter was delivered to him, and the woman spoke to him, and was heard by Mrs. Taft, who was in the house.
    The prosecution insisted, and gave evidence tending to prove that the accused was the person who delivered the letter containing the poison. She denied the charge, and gave evidence tending to sustain her denial. That issue was an important one in the case.
    Mrs. Taft, called as a witness by the prosecution, testified on her direct examination: “ I recognized the voice ; . . .it was the voice of Anna Oox.” On her cross-examination she was asked by the defendant’s counsel, if she did not ask the boy when he came back into the room, “Who was it that brought the letter?” and she said she did. On a re-examination by the counsel for the people, she testified that after Willie came back into the room with the letter, she and Willie talked about who it was that brought the letter. The counsel for the people then asked her: “ What was said between Willie and you about who it was that brought the medicine ?” This was objected to by the counsel for the accused, as a conversation between third parties. The court overruled the objection ; >the counsel for the accused excepted, and the witness testified that Willie said it was Anna Cox.
    Sarah Cox, the mother of the accused, was sworn as a witness for the defense, and gave evidence tending to show that Anna was at home at the time when the letter was delivered at Taft’s. On her cross-examination by the prosecutor, she was asked if she did not know that Anna had been wilting a letter on the day the letter was delivered; and if Anna did not tell her she had been writing, and she answered in the negative. She was also asked if she did not tell Mrs. Beman, on the day that Anna was arrested, that Anna had been writing a letter on the day the letter was delivered at Taft’s, and also, if she. did not tell Mrs. Shope the same thing, and she testified that she did not. Mrs. Beman was called as a witness by the prosecutor, and was asked by him if Mrs. Cox, on the occasion of Anna’s arrest, said that Anna had been wilting a letter on the afternoon of the 26th of January. This was objected to by the prisoner’s counsel, on the ground that the inquiry was collateral, and raised by the prosecutor, and the prosecution was concluded by the answer of the witness, Mrs. Oox. The court overruled the objection, and the defendant’s counsel excepted. The witness said she did. Other similar questions were put to Mrs. Beman and Mrs. Shope, and were answered in like manner, under like objections and exceptions.

      R. G. Titus, district attorney, for the people.
    The evidence as to the conversation between the mother and son was competent, as being the whole of a conversation called out by the cross-examination of the people’s witness. (2 Wait Law and Practice, 1 ed., 485 ; 1 Oreenleaf Ev., § 46Y ; Boseoe’s Grim. Ev., Y ed., 124; Rouse v. Whited, 25 N. Y., 1Y5 ; Hisbit v. Stringer, 2 Duer, 26; Lirmingdcde v. Limingston, 10 Johns., 36; GredAb v. Brown, Id., 365; Hopkins v. Smith, 11 Id., 161; Dolan v. Douglass, 6 Barb., 451; Kelsey v. Bush, 2 Hill, 440.) When it is sought to impeach a witness on the ground that he has made statements out of court, which are contrary to what he swore to on the trial, such proof may be made by any competent witness who heard his previous statements. (Greene v. Howa/rd, 2 Hilt., 434; Tooker v. Gormer, 2 Id., Y1; Pcdmer v. HaAght, 2 Barb., 210 ; Sprague v. Gadwell, 12 Id., 5Y6 ; Holmes v. Anderson, 18 Id., 420; Budlong v. Yam Hostrund, 24 Id., 25; Patohim v. The Astor Ins. Go., 3 Kern., 268; Pomertize v. East Pvoer Bank, 49 N. Y., 511; Greenfield v. People, 13 Hun, 242; Whart. Law of Ev., § 552; Phillips on Ev., 4 ed., 911.)

      Lewis ds Gurney, and A. G. Piee, as counsel for the defendant.
    It was error to admit the declaration of Willie Taft to his mother, in response to her inquiry as to who it was who brought the letter. (People v. Etz, 5 Cow., 314; 1 Buller, N. P., 294; Pex v. Parker, 3 Hong., 242 ; Smith v. Sticlmey, 11 Barb., 489 ; Poll v. Hackley, 23 Wend., 50; Wvnchell v. Latharn, 6 Cow., 682; Plainer v. Plainer, 20 Alb. L. J., 293, Ct. of Appeals; Pouse v. Whited, . 25 N. Y., 110.) It was an error to permit the prosecutor to contradict Mrs. Cox in her answers to questions put by himself, and which did not tend to contradict or discredit any of her testimony in chief. {Hation v. People, 6 Paige, 258; Plato v. Peynolds, 21 N. Y., 586; 1 Starkie Ev., 134; Lawrence v. Barker, 5 Wend., 301; Harris v. Wilson, 1 Id., 51; Sa/achy v. People, 22 N. Y., 141; Commonwealth v. Welch, 4 Cray., 535 ; Hollrook v. Mix, 1 E. D„ Smith, 154; Muhnish v. Oollier, 15 Ad. ' & El., 318, N. S. [15 Q. B., 818] ; 1 Creenleaf, §§ 442, 443, 444, 444 a., 445, and notes.)
   Smith, J.:

The declaration of Willie Cox to his mother was improperly received in evidence. It was mere hearsay. The counsel for the peope argues that it was competent by way of giving the whole of a conversation called out by the cross-examination of the people’s witness. Undoubtedly, when a statement forming part of a conversation is given in evidence, whatever was said by the same person, in the same conversation, that would in any way qualify or explain that statement, is also admissible. (Prince v. Samo, 1 Ad. & El., 621; Rouse v. Whited, 25 N. Y., 110.) But the rule is inapplicable here. The cross-examination had elicited no statement ; the only fact brought out was that Mrs. Taft had inquired of her son, who the person was that handed him the letter — a fact entirely immaterial, except as it tended to show that Mrs. Taft was not certain who the person was, and thus weakened the force of her positive testimony, that it was the defendant. There was nothing in the testimony which made the answer of Willie competent by way of qualification or explanation. But the proof of his answer, though incompetent, was calculated to operate against the '' defendant upon a vital issue, and we cannot say that she was npt prejudiced by its reception.

We also think the court erred in receiving the evidence of Mrs. Beman and Mrs. Shope, showing declarations of Mrs. Cox contradietory. of her testimony given on cross-examination, to the effect that she did not know and had not been told by Anna, that Anna had written a letter on the day the letter was delivered at Taft’s. It was undoubtedly competent for the prosecution to prove that Anna had written a letter on that day, if the fact was so, but when they undertook to prove it by the defendant’s witness, they made the witness their own for that purpose. And having failed to prove the fact by her testimony, it is difficult to see upon what principle they were authorized to show that she had asserted the fact on previous occasions, when she was not under oath. It is insisted by the counsel for the people, that as the contradictory statements of the witness related to a matter which was relevant to the issue, they 'were competent by way of impeaching her testimony. But the state- • ments did not contradict anything the witness had testified to on her direct examination. The fact to which they related, to wit, the writing of a letter by Anna on the day referred to, although pertinent to the issue, was new and independent matter, not touched upon in the direct examination of the witness, and the burden of proving it rested on the prosecution. The rule, as stated in the books, that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony, does not, by any means, imply that a witness may be cross-examined, for such purpose, as to every fact which is relevant to the issue. The right of cross-examination, for such propose, is limited to those matters which tend to contradict, discredit, vary, qualify, or explain the testimony given by the witness on direct examination. In the leading case of The Attorney-General v. Hitchcock (1 Exch., 91), the rule was stated as follows by Alderson, B.: “A witness may be asked any question wbicb, if answered, would qualify or contradict some previous part of that witness’s testimony, given on the trial of the issue; and if that question is so put to him and answered, the opposite party may then contradict him, and for this simple reason, that the contradiction qualifies or contradicts the previous part of the witness’s testimony, and so removes it.” The reported cases, so far as we are acquainted with them, are consistent with the rule, and the reason of it, stated by Baron Alderson. That 'Wharton, in his Law of Evidence (§ 552), cited by the counsel for the prosecution, did not intend to state a different or broader rule than this, is apparent, we think, from his language and the cases cited by him. In one of them (Hogan v. Cregon, 6 Robt., 138), the action was for seduction of the plaintiff’s daughter. The daughter wras called as a witness for the plaintiff, and on cross-examination she having denied certain alleged acts of intimacy with Campbell and Dougherty, the defendant was permitted to interrogate the latter persons as to those matters. Held, not error. The Commonwealth v. Bean (111 Mass., 438), was an indictment for an indecent assault upon A: B. A. B. having testified that defendant took indecent liberties with her person on a day when he took her to drive, and, upon cross-examination, that, on a subsequent day, she did not tell the defendant that she would kiss him if he would take her to drive, it was held that the defendant might show that she did so tell him. In each of these cases the fact to which the contradiction related tended to discredit the witness. So, in Thomas v. David (7 Carr. & Payne, 350, cited by Phillips in his Treatise on Evidence, vol. 2 [4th Am. Ed.], with Cow. & H. Notes, p. 971). The case of Greenfield v. People (13 Hun, 244), was not intended to be carried beyond the above authorities, some of which are therein cited. In State v. Patterson (2 Ired. L., 346), a witness on the part of the State on cross-examination was asked whether the prosecutor had not paid him for coming from another State to be a witness, and answered that he had not. Held, that it was incompetent for the defendant to introduce witnesses to prove his declaration that he had been so paid.

If Mrs. Cox had testified on direct examination that Anna did not write a letter on the day referred to, it would have been compe-

tent to contradict her, as the fact was material; but as the only testimony given by her on that subject was elicited on her cross-examination, and did not bear upon her previous testimony, it did not furnish a foundation for the introduction of proof that she had made contradictory statements.

The conviction should be reversed, and the proceedings remitted to the Erie sessions, with instructions for a new trial.

Talcott, P. J., and Hardin, J., concurred.

So ordered.


text:
    HARMAN ACKERMAN, Respondent, v. ELIAS HUNSICKER, Appellant, Impleaded with JACOB LEVI and others.

      Mortgage to secure future advances-~-iohere the right to malee the advances is optional with the mortgagee, each advance is subject to all incumbrances recorded prior to the time of malcing it — the rule is otherwise where the mortgagee is bound to malee the advances.

    A mortgage given to secure future advances, which the mortgagee has the option to make or not, as he chooses, is, as to each advance made upon it, to be regarded as a fresh mortgage, and is, as to such advance, subject to the lien of all incumbrances which are duly recorded at the time it is made, whether the mortgagee have actual notice of them or not.
    In those cases in which the mortgagee is bound to make the future advances, this rule does not apply.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought to foreclose a mortgage, given as collateral to a bond, executed by one Levi, to the plaintiff, and conditioned to save “ Ackerman harmless from any and all indorsements he has made, or may hereafter make, for the said Levi, or the firm of Levi & Miller, up to the amount of six thousand dollars.” The bond and mortgage bore date March 2, 1874, and the mortgage was recorded March 3, 1874, in the Onondaga county clerk’s office. Levi also executed to Ackerman a chattel mortgage, containing a like condition. After the execution of these securities, and during the year 1874, Ackerman indorsed and subsequently paid notes for the accommodation of Levi, or Levi & Miller, of date and amount as follows: May 7, $244; May 26, $550; July 17, $400; August 21, $1,000; September 9, $60; September 12, $1,200; September 23, $1,574, and October 16, $1,600. On September 8 Levi paid to Ackerman $3,150, and Ackerman surrendered a note which he held against Levi, not indorsed, for $864.30, leaving a credit of $2,285.61, to be applied upon plaintiffs claim under the mortgage, as of September 8, 1874. Subsequently to the execution of the-said securities certain judgments were recovered in this court, which were liens on the mortgaged premises, and were afterward assigned to the defendant Hunsicker. Their amounts, and the dates when they became liens, are ás follows: May 25, 1874, $1,132.99; August 6, 1874, $979.69; October 5, 1874, $1,142.25. The plaintiff had no actual notice of these judgments when he made the indorsements above stated. The appellant insisted that the lien of the judgments was prior to that of the mortgage, as to the indorsements made after the judgments were docketed. The referee held that the lien of the mortgage is prior to that of the judgments for the whole amount due to the plaintiff for money advanced by him to take up his indorsements, which amount the referee found to be the sum of $4,779.19, on the 26th of January, 1876, the date of his report.

      George Barrow, for the appellant.
    Under the registry system the judgments took precedence of all advances or indorsements made after they were docketed in the Onondaga county clerk’s office, the docketing being sufficient notice, no actual notice being required. {Spador v. Icmlor, 17 Ohio, 371; Ter Hoven v. Kerns, 2 Barb., 96; Parmentier v. Gillespie, 9 Barb., 86; MeLnre v. Bomam, 52 Penn. St., 458; Parlser v. Jacoby, 3 Grant, 300; Boswell v. Good/wm, 31 Conn., 74; Hartley v. Kerim, 45 Penn. St., 49; Hubbard v. Samage, 8 Conn., 215, 6 Id., 37, 7 Id., 387-; Kramer v. Farmers' Bombs, 15 Ohio, 253; Bombs of Montgomery's Appeal, 36 Penn., 170; Ladue v. Detroit & M P. B. Go., 13 Mich., 380; Hall v. Crouse, 13 Hun, 557.)

      Cornelius E. Stephens, for the respondent.
    The mortgage was good as against subsequent incumbrances. A record of such a mortgage is notice to a subsequent purchaser, or an incumbrancer for value, so as to postpone the latter to the lien for advances made before notice from the subsequent incumbrancer. (Bobmson v. Williams, 22 N. Y., 380; Trwseott v. Kmg, 6 Barb., 346; Stn/yvesami v. Kali, 2 Barb. Ch., 151; Talmadge v. Wilgers, 4 Edw., 239, note; Howard Ins. Co. v. Halsey, 8 N. Y., 271; Wheelwright v. Pe Peyster, 4 Edw., 232; Kmg v. Mo Yioker, 3 Sandf. Ch.,' 192; Thomas v. Kelsey, 30 Barb., 268; Youngs v. Wilson, 27 N. Y., 351; Williamson v. Brown, 15 N. Y., 354.)
   Smith, J.:

It does hot appear that Ackerman was under any obligation to indorse for Levy or his firm; it was optional with him to do so; and the question is whether, as to indorsements voluntarily made by him after the judgments were docketed, the lien of his mortgage is not to be postponed to that of the judgments. Had he taken a new mortgage to secure him for those subsequent indorsements at the time when he made them, no one will question but that such new mortgage would have been subject to the hen of the judgments. The docket would have been constructive notice to him. But it is said in behalf of the respondent, that as his mortgage was recorded prior to the docketing of the judgments, they were not constructive notice to him. For the appellant it is insisted that as to indorsements made subsequent to the docketing of the judgments, the plaintiff is a subsequent incumbrancer, and is chargeable with notice.

An examination of the authorities shows that the question cannot be regarded as settled in this State. There are numerous cases holding that a mortgage, judgment or other security, may be taken and held for future advances or responsibilities. Chancellor Kent so held Brinkerhoff v. Marvin (5 Johns. Ch., 320), and in the same case he intimated that advances made or responsibilities incurréd after a subsequent judgment, will not be covered by such security (p. 327). He reiterated the same opinion in James v. Johnson (6 Johns. Ch., 417, 429). In lansing v. Woodworth (1 Sandf. Ch., 43), and Barry v. Merchants' Exch. Co. (Id., 280), Assistant Vice Chancellor Sandeord expressed himself to the same effect, citing Brinkerhoff v. Marvin; and in Craig v. Tappin, (2 Sandf. Ch., 85), and Goodhue v. Berrien (Id., 630), he decided the point in accordance with the opinion above referred to. In the later case of Truscott v. King (6 Barb., 346), the Supreme Court at General Term in the third district, held that the receiving of a subsequent mortgage was not constructive notice to a creditor who had taken a prior judgment as security for future advances, and that such judgment creditor was to be protected in his advances made after the recording of the mortgage and before he had actual notice of such mortgage. It did not appear-, in that case, that the judgment creditor bound himself to make future advances. But the case is of doubtful authority upon the question now under consideration. It was reversed by the Court of Appeals (6 N. Y., 147), upon another point, indeed, but upon one equally fatal to the case as an authority upon this question. The reversal was upon the ground that the judgment had been paid and satisfied. That being the case, the question of the priority of lien was not involved, and all that was said about it was unnecessary to a decision of the ease, and was mere dAot/wm. Besides, of the two cases cited by Parker, J., who delivered the opinion in the Supreme Court, to wit, Gordon v. Graham (7 Viner’s Abr., 52; 2 Eq. Cas. Abridged, 598), and Shirras v. Caig (7 Cranch, 34), the first — an English case — has no application to our system of registry; and furthermore, it has been overruled by the House of Lords (Hopkinson v. Rolt, 7 Jur., N. S., 1,209; 5 Law Times, N. S., 90); and as to the second case, Bhirras v. Gaig, the report of it does not show that the subsequent conveyance had been recorded, and that being the case, actual notice was requisite to affect the holder of the prior security, even as to subsequent voluntary advances.

The case of Thomas v. Kelsey (30 Barb., 268), cited by the respondent’s counsel, is not in point. All that that case holds, having even a remote bearing upon the one in hand, is that the lien of a mortgage given to secure further advances, is superior to the lien of a subsequent judgment, as to advances made prior to the docketing of the judgment, although the mortgage was not recorded, provided the omission to record it was not the result of a fraudulent design; and in Robinson v. Williams (22 N. Y., 380) the advances were made prior to the docketing of the defendant’s judgment.

The case of Hall v. Crouse (13 Hun, 557), cited by the respondents’ counsel, is also not in point, it appearing that the holder of the prior mortgage in that case had aetmal notice of the subsequent judgment, before he rendered the services, as to which he claimed his mortgage was a prior lien.

These are all the cases in this State cited by counsel on either side, and I know of no other bearing upon the question.

In several of the other States, the point has been adjudged in accordance with the views of the appellants’ counsel. It has been so held in Pennsylvania, Ohio, Illinois and Michigan. Some of the leading cases are Ter Hoven v. Kerns (2 Penn. St., 96); Bank of Montgomery County's Appeal (36 Penn. [12 Casey], 170 ; Spader v. Lawler (17 Ohio, 371); Collins v. Carlisle (13 Ill., 254), and Ladue v. Detroit & Milwaukee R. R. Co. (13 Mich., 380). In Ter Hoven v. Kerns (supra) the question was fully discussed. It was there held that a judgment given to secure further advances, which were optional, was not a lien as- against a subsequent judgment rendered before such advances were made. The judgment was treated by the court as standing upon the same footing as mortgages. The reasoning adopted was, in substance, that a mortgage to secure future advances, which are optional, does not take effect between the parties as a mortgage or incumbrance until some advance has been made; that if not made until after another mortgage or incumbrance has been recorded, it is, in fact, as to such after advances, a subsequent and not a prior incumbrance ; and that the record of the subsequently recorded mortgage is notice, as to such after advances, as much as if the mortgage first recorded had not been executed until after such advances were made. These views are affirmed by the other cases above cited, and are very forcibly supported by the exhaustive opinion of Christiancy, J., in the case of Lad/ue.

In Yermont, a different rule has been laid down. The case of Daniels v. McColvin (16 Vt., 300) held that express notice of a subsequent incumbrance is required in order to stop further advances upon a mortgage, to secure future advances, and in addition to this, a formal protest against the first mortgagee continuing to increase the indebtedness under his mortgage. That rule, it is believed, prevails nowhere else. Judge Redeield, afterwards Chief Justice, dissented.

The rule laid down in Ter Hoven v. Kerns, and the other concurring cases above cited, seems to us reasonable. It proceeds upon the ground that as, by our law, a mortgage passes no estate in ^ the land, and is simply a lien, it follows that a mortgage given to cover future advances, which the mortgagee has the option to make or not, as he chooses, is a mero shadow or nullity until some advance is made upon it, and then it is enforceable only to the extent of the advance, and that, as to each subsequent advance, it is to be regarded as a fresh mortgage, subject to the lien of incumbrances duly recorded before the advance is made. True, this rale makes it necessary for the holder of such mortgage to search the record for intermediate incumbrances on making éach fresh advance, but that is an inconvenience to which every person is subject, who takes a mortgage and relies upon it as a security. The rule does not apply, of course, to the case of a mortgagee who is bound to make the future advances. Thus limited, it does not appear to be in conflict with the weight of authority in this State, and I think it should be applied to this case. I am of the opinion, therefore, that' the record of the judgments set up by the defendant was constructive notice to the plaintiff, and that they are severally to be preferred to the lien of his mortgage, as to all indorsements made by him after the respective judgments were docketed.

The judgment should be reversed, and a new trial ordered before another referee, costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

Ordered accordingly.


author: Hardin, J.:

text:
    CHARLES A. W. SHERMAN, Trustee of Charlotte Sherman and others, CHARLOTTE SHERMAN and others, Appellants, v. HENRY N. PAGE, as Executor, &c., of Sarah E. Little, Deceased, Respondent.

      Will — a testator may appoint one executor to take chan'ge of property within, and another ofpropei'ty without the State — such an executor is only bound to account for such property as is within the State in which he is appointed.

    One Sarali E. Little, a resident of Perry, Wyoming county, New York, died, leaving a last will and testament, which was duly admitted to probate by the surrogate of that county, by whom, on January 0, 1878, letters testamentary thereon were duly issued to one 'Page, one of the executors named therein. At the time of her death the testatrix owned certain personal property, situated within this State, and also certain bonds and mortgages and promissory notes, iu the State of Michigan, the property in that State being held and managed ior her by one Grant.
    The testatrix gave certain legacies to persons named in the will, and then appointed ’‘Henry N. Page my executor, for carrying out the provisions of this, my last will and testament, so far as they relate to parties and property in this State (in New York), and Charles N. Grant, of East Saginaw, and D. H. Jerome, of Saginaw City, Michigan, my executors for everything, so far as they relate to parties and property in the State of Michigan, and elsewhere.”
    Page never applied for letters testamentary or of administration in Michigan, but letters were duly issued out of the probate court of that State to the said Grant and Jerome, who qualified and acted as executors under the said will.

      Held, that the title to the property of the testatrix, which was situated outside of this State, did not vest in Page, but only the title to such as was within the State.
    That he was not chargeable with or liable to account for property of the testatrix situated without this State, and which never came into his actual possession, nor was he bound to enter such property upon the inventory filed by him here.
    That upon accounting for all the property of the testatrix, situated within this State, at the time of her death, he was entitled to be discharged.
    Appeal from a decree made bj the surrogate of Wyoming comity, upon tbe final accounting of one Page, as executor of the last will and testament of Sarah E. Little, deceased, which will bad been duly admitted to probate by tbe said surrogate. At tbe time of her death sbe resided in Perry, Wyoming county, New York. On January 6. 1873, letters testamentary were issued, to PageJ as sole executor. Alter the expiration of eighteen months he petitioned for citations, and for a' final accounting, he stating in his petition that all the creditors of the deceased had been paid, according to the best of his knowledge and belief. He presented an account, in. which he charged himself with the amount of the inventory, viz., $1,673.68, and one dollar increase thereon, or in gross, “ Total i/nmentory and gains, $1,674.68.” His accounts showed payments for expenses and commissions in administering the estate, for funeral expenses, for a monument and lot, and for debts paid, and distribution made to legatees by him, amounting in-all to $1,487.31, leaving a balance in his hands of $187.37.
    His affidavit was in the usual form, to the effect that it contained “ a full and true account of 'his receipts and disbursements on account of the estate of the deceased, which have come to his hands as such executor, or which have been received by any other person by his order or authority for his use . . . that the moneys stated in said account, as collected, were all that were collectable, according to the best of his knowledge and belief,” &c.
    Charles A. N. Sherman, as trustee, and Charlotte Sherman, Maria Cameron, James L. Sherman and Sarah E. Morse, as legatees, filed objections to the account. It was admitted that “ the testatrix, at the time of her death and previous thereto, was the owner of and possessed of a large amount of property, consisting of promissory notes, bonds and mortgages, and real" estate of over $37,000, of which the personal property, viz., bonds, mortgages, promissory notes, and other evidences of debt and choses in action, was, and had been in the charge of C. N. Grant, of East Saginaw, in the State of Michigan, as her agent, for the .purpose of investment and re-investment.”
    The will was admitted to probate January 6, 1873, by the surrogate of Wyoming, and Page alone qualified as executor, in this State, and letters to him only were here issued.
    On the 17th of February, 1873, the will was admitted to probate in the Probate Court of Saginaw county, Michigan, on an exemplified copy of the said will and its probate in this State. The Probate Court of Saginaw county, Michigan, granted letters of administration March 24, 1873, to C. N. Grant and D. N. Jerome, they having given bonds and duly qualified, and it was admitted that they have accepted the “ said trust, and have ever since continued to act thereunder, and at once took possession of all said jiersonal property situate in the State of Michigan, and have ever since continued to hold possession and claimed control of said property, and have declined to surrender the same, or any part thereof, to said Henry N. Page, and that said personal property still remains in the State of Michigan, and no part of it has come to the hands of said Henry N. Page.”
    It was further admitted “ that said Henry N. Page has never taken letters testamentary under said will, in the State of Michigan ; that no part of said personal property has ever been out of the State of Michigan,” and “that said Henry N. Page, as executor of said will, has never, commenced any legal proceedings to recover said personal property from said Charles N. Grant or D. H. Jerome, as executors in Michigan, or as individuals, or-to compel them, or either of them, to render an account of their proceedings as such executors, or pay over to him, said Page, as executor aforesaid, the moneys necessary to pay the said legatees, Charlotte Sherman, Maria Cameron, Sarah E. Morse and James Sherman,” &c.
    It was also admitted “that.all the property and assets of every land, name and nature, which Were actually in the hands of said Page at the time of the death of Sarah E. Little, or which have since actually come into his hands, as such executor, or under his control, either directly or indirectly, were included in his inventory on file in the office of the surrogate of Wyoming county, New York, and were all that were actually in the said State, and that he has never surrendered or given up any assets belonging to said estate, to any person whatever, except as set forth in his account,” and also “that there was sufficient of said promissory notes, bonds and mortgages, and other evidences of debt, in the hands of said Grant, or Grant and Jerome, as such executors, to pay all testatrix’s debts in the State of Michigan, and all legacies to legatees in the State of New York, and to Maria Cameron; . . . that the testatrix knew her said notes, bonds and mortgages, and other assets, except what are accounted for by said executor, Page, were then in the hands of C. N. Grant, aforesaid, as her agent.” It was admitted that Grant and Jerome “ had two years from the 17th of February, 1873, in which they could not be required to account and pay over moneys of said estate to any person legally entitled thereto.”
    On the second day of June, 1879, the decree was made by the surrogate of Wyoming county, stating the accounts of Page, showing a balance of $254.23 in his hands, and finally settling and adjusting his account; allowing him as fees $66.86, and ordering the balance to be invested for keeping in repair the cemetery lot in the cemetery, in the village of Perry, and the monument erected thereon.
    The testatrix’s will bears daté 30th August, 1872, and contained many bequests and legacies. The fourth and fifth clauses thereof are as follows, viz.: “ I give and bequeath to Charlotte Sherman the interest of four thousand dollars, during the term of her natural life. At her decease the said sum of four thousand dollars shall be equally divided between Maria Cameron, Sarah E. Morse, and James Sherman, children of C. A. N. Sherman, or so many of them as shall then be living.”

      Fifth. — “ I give and bequeath to Maria Cameron and to Sarah E. Morse, each the sum of one thousand dollars.”
    Tbe clause appointing her executors was as follows:
    “ Twenty-sixth. — I hereby appoint Henry N. Page my executor, for carrying out the provisions of this,, my last will and testament, so far as they relate to parties and property in this State [in New York], and Charles N. Grant, of East Saginaw, and JD. H. Jerome, of Saginaw City, Michigan, my executor .for everything, so far as they relate to parties and property in the State of Michigan and elsewhere; and my executors are hereby authorized and empowered to sell and convey any real estate of which I may be possessed, as they shall deem for the best interest of the legatees.”
    It appeared that Maria Cameron, a legatee named in the wall, resides in the State of Tennessee; that the legatees Charlotte Sherman, Sarah E. Morse and James Sherman resided, at the time the will was made, and ever since have resided, in this State, and that such facts were known to the testatrix.

      E. M. Morse and H. I. Comstock, for the appellants.

      L. A. Hm/wa/rd, for the respondent.
   Hardin, J.:

I think it must be held that the executor, Page, derives title to . the property of the deceased, so far as he had any, in virtue of the will of the testatrix,- and that he took just such title and no more than the terms of the will carry to him. (Hartnett v. Wandell, 60 N. Y., 346, and cases there cited in opinion of Allen, J.)

The testatrix appoints him executor for carrying out the provisions “ of her will, so far as they relate to parties and property in this State.” Here we have the exact words, which are the sole foundation of his title to the property of the deceased. They contain the. limit of his powers in respect to her property and the disposition of it.

Undoubtedly all personal property possessed by the testatrix in this State at the time of her. death passed directly upon the happening of her death to the executor Page.

The circumstances surrounding the testatrix at the time of her execution of the will may be reverted to, to aid in the construction of any ambiguous or uncertain provisions. It appears that she was residing in Perry, Wyoming county, when she made her will; that she continued to reside there; that she had property in this State; that she had relatives and friends who were to receive from her bounty in this State. She likewise had a large property in Michigan, and friends and relatives there and elsewhere. And it must be presumed that she understood the well settled rule of law, that her property would pass by her will to the person or persons she named as her executors. With such knowledge, it is very easy to understand how she might deem .it advisable to commit to the care of Page, a resident of this State, the personal property owned by her being in this State, and direct that so far as the provisions of this my last will ” relate to parties and property in this State he should be her executor.

We turn to the further language used by her in regard to the persons named as executors in the State of Michigan.

She says: “ I appoint Charles N. Grant, of East Saginaw, and I). H. Jerome, of Saginaw City, Michigan, nvy executors for everything,, so far as they relate to parties and property in the State of Michigan and elsewhere.” Thus the title to the uproperty in the State of Michigan” seems to be conferred upon these two executors. The words “ executors for everything, so far as they relate to parties and property,” seem ample to vest title to the property belonging to the deceased in those executors thus named for the purposes of the trust.

These words, coupled with the words in respect to the executoi, Page, exclude all idea that she intended to appoint Page as executor to receive “ title to the property in the State of Michigan belonging to her then, situated therein.” It certainly was competent for her to name executors for different States and to define their powers and duties. (Despard v. Churchill, 53 N. Y., 192; Hartnett v. Wandell, 60 N. Y., 350.)

The limited power or title to property conferred upon Page is made to appear more clearly by the very peculiar words of the appointment of the Michigan executors. She did not stop with giving them power or an appointment co-extensive with the State of Michigan as to parties and property therein, but she adds the words “ and elsewhere.” Following as they do in the same clause with the two provisions adverted to, it must be considered that they relate to parties and property elsewhere than in the States of Michigan a/nd New York. The conclusion seems to follow, from what has already been said, that the executor, Page, performed the full duty cast upon him in respect to “ the property,” as such, of the deceased, when he converted into cash whatever was “in the State of New York” at the time of the death of the testatrix, and disbursed it according to the terms of the will.

Nor do I think he was, under the peculiar language of the will, called upon to file an inventory of the property of the deceased not within the State at the time of her death. Manifestly, a general executor of the whole estate, who is appointed in the State of the domicil of the deceased, must put upon the inventory all the property which comes to his knowledge, wherever situated. Such is the rule as laid down in Matter of Butler (38 N. Y., 397). In that case the executor had duties to perform as to property situated iu other States, and in the absence of any conflicting administration, it was held he would take the title to property situated beyond the State where he was appointed, and he would be authorized to receive pay upon notes and other choses in action, and give acquittances therefor. (Parsons v. Lyman, 20 N. Y., 103; Petersen v. Chemical Bank, 32 N. Y., 21.)

Nor has Page, the executor, been given any interest in or title to the assets in Michigan, which would entitle him to letters of administration with the will annexed in that State. So long as the executors Grant and Jerome chose to prove the will there, and take upon themselves its execution, they were presumptively exclusively entitled to administer there. (1 Williams on Executors, 351; 3 Swabey & Tristram, 423, 456.) Nor do the facts presented here warrant the conclusion that it was a neglect of duty on the part of Page to omit to go into the State of Michigan, and take legal proceedings to obtain possession of the proceeds of the property in that State.

I have attempted to show that he had no right to the property specifically, because it passed from the -testatrix to Grant and Jerome as executors, and they were entitled to use it: first, to pay any debts of the testatrix; and secondly, it was their duty to apply it to the discharge and settlement of the legacies given in the will

If they fail to perform such duty, the courts of that State, it must be assumed, upon a proper application by the creditors, if any, or by the legatees or distributees, would give the proper directions, in compliance with the rules of law, equity and comity.

Doubtless the rule prevails in that State, which has been recognized over and- over again in this State, to wit, a distribution according to the law of the place of the domicil, if distribution or payment be ordered. (Parsons v. Lyman, 20 N. Y., 103 Harvey v. Richards, 1 Mason, 381.) Or else cause the proceeds to be remitted to the executor of the domicil, according to a rule laid down in this State. It was said in Despard v. Churchill (53 N. Y., 192), that it is not a question of jurisdiction as to the proceeds, but of judicial discretion under the circumstances of the particular case.

It is insisted in behalf of the appellants that the case of Schultz v. Pulver (11 Wend., 361) is an authority favorable to them. In that case a majority of the court agreed to a judgment declaring the administrator liable for negligence in omitting to collect some $650 on a note against a party in Pennsylvania, as the debtor was entirely responsible, and the administrator in this State might, by obtaining letters of administration in that State, collect the note.

That case is wholly unlike the one before us, and cannot aid the appellants, if the views I have already expressed are correct! If the funds not needed in Michigan, to pay debts or legacies there, had been remitted to Page, the executor, it would doubtless have been his duty to pay them over to the parties entitled thereto, and we find nothing in the terms of the decree entered, absolving him from that duty.

But the learned counsel for the appellants seems to think that the statement of the accounts already had might change the course of the funds, or interfere with a proper disposition thereof. The will, as we have seen, is an unusual one in the respects we have considered it, and for greater caution it may be proper to insert in the decree a provision declaring “ that m case fwrther assets or proceeds of assets shall come to the hands of Page as executor, from the hands of Grant and Jerome, or from any other source, then the same be accounted for to the surrogate, and paid over according to the terms of the will.”

The surrogate’s decree will be so modified, and as so modified affirmed, with costs payable out of the estate.

Takcott, P. J., and Smith, J., concurred.

Ordered accordingly.


author: Hardin, J.: Potter, J.,

text:
    AARON MOYER, Respondent, v. SIMPSON MOYER, Appellant.

      Conveyance of property, -upon a verbal trust — when a court of equity will enforce its performance — admissibility of oral evidence, as to the directions given by the grantor — when the testimony of the grantee is inadmissible after the death of the grantor.

    For some years prior to September, 1859, one Simpson Moyer owned and occupied, with bis wife and family, a farm of about one hundred acres, which was then worth about $3,500, but Was subject to a mortgage of $1,500. Moyer had then living thirteen children, of whom only one, a son, was of full age and resided in the vicinity. Moyer, being far gone in bis last sickness, and desiring to provide for his infant children, executed and delivered a deed of the farm (which was substantially all his property) to bis said sob,the defendant, upon the verbal understanding and agreement, that tbe farm should be kept and held, by the latter, as a home for the family during the minority of the children, and that when the youngest child should come of age, it or its proceeds should be divided among all of them. No consideration was paid by the defendant, nor did he agree to pay any.' The father furnished the money to pay for recording the deed, and continued to occupy the farm until tire time of- his death, which occurred about ten days after the deed was made. After the father’s decease the family continued to occupy the farm, paying the taxes, and the interest upon the mortgage, keeping the farm in repair, and making some improvements of a permanent nature. The defendant was never in possession of any part of the farm, nor did he ever receive the rents or profits thereof. The defendant having repudiated the trust upon which the farm was conveyed to him, and claimed to be the sole owner thereof, this action was brought by one of the children to have it adjudged that he held the farm as a trustee for the surviving children, and to compel him to convey to them their respective shares therein.

      Held, that the action was properly brought and could be maintained.

      Held, further, that there was no error in admitting oral evidence of what took place in the sick room, when tbe father caused the deed to be delivered aud gave directions as to the recording of it, and advanced the money to pay for so doing.

      Held, further, that the testimony of the defendant as to what then took place was properly excluded under section 829 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to enforce an oral trust, upon which, it was claimed, a farm had been conveyed to the defendant. The referee found that the defendant was a trustee ex maleficio, and ordered a conveyance to the plaintiff of an undivided tenth interest in the lands described in the complaint, subject to the dower of Catharine Moyer, and subject to her life estate in three thirteenths, and subject to an equivalent portion of an outstanding mortgage of $1,500.
    In September, 1859, Simpson Moyer, the father of the defendant, who owned the lands in question, died intestate, leaving his widow Catharine and thirteen children him surviving. Three of the children have since died intestate, and without issue. In 1859 the lands were worth about $3,500, and were subject to the said mortgage. They are now supposed to be worth about $6,000.
    The answer did not allege any payment by defendant for the land, and admitted that he was not in possession of it. The evidence tended to establish that he paid no consideration for it, notwithstanding the recital of a consideration in the deed, by the ■father to him.
    The referee made the following among other findings, viz.:
    Fourth. For several years prior to his death, Simpson Moyer had owned and occupied a farm of one hundred acres of land in the town of Lewiston, worth at the time of his death about $3,500, but incumbered by a mortgage, payable in gold coin, for $1,500, and this farm was substantially all his property.
    Fifth. About ten days before he died, Moyer sent for the defendant, who was the only one of his sons of full age, living in the vicinity, and delivered to him a deed in fee of the farm which had been prepared and executed by Moyer, and acknowledged in December, 1851, for some other purpose, but never delivered.
    The deed was in the usual form of a deed of bargain and sale, expressed a consideration of $5,000, was made subject to the mortgage of $1,500, and contained a covenant of warranty. The defendant, at Moyer’s request and by his direction, put the deed upon record, and the grantor furnished the money to pay for recording the same.
    No consideration for the conveyance was ever paid by the defendant or any other person, and there was no agreement or undertaking by the defendant or any other person to pay anything for the conveyance, except what was implied from the deed.

      The defendant was never in possession of any part of the property conveyed, and never received the rents or profits of the same.
    Sixth. At the time the .conveyance was made, and the deed delivered, Simpson Moyer, the grantor, was far gone in Ms last sickness, and was acting in anticipation of approaching death, and the sole object of delivering the deed to the defendant, as then verbally expressed by him, and understood by the defendant, was that the farm should be kept and held as a home for the family during the minority of the then infant children, for their use,, and at the majority of all of said last-named children, to be divided or sold, and the proceeds divided among all of his children, and that the defendant, fully understanding the purpose and intent of their father, then agreed verbally to take and hold the title of the farm for that purpose and no other, and then, and for many years thereafter, intended so to take and hold the title of said farm; that the defendant at the time knew and understood that the deed was not prepared for the purpose then contemplated, but both he and Ms father believed that the whole transaction was effectual to secure the object then intended.
    Seventh. That Simpson Moyer, the deceased, continued to live upon and occupy tbe farm till Ms death, about ten days after the deed was delivered, and his widow, his second wife, and her children have continued to occupy the farm as a home, paid the taxes upon it, paid the interest upon the outstanding mortgage,- kept the farm in ordinary repair, made some improvements of a permanent nature, until the present time, substantially in compliance of the expressed wishes of the deceased Moyer, made known to them, and to the defendant, by him at the time he delivered the deed to the defendant; and the defendant and all the other cMldren acted upon the assumption that the transactions, intentions, and understandings at the time the deed was delivered were valid, and were to be earned into effect, and that the defendant held the title, as intended by his father, as aforesaid, and for no other purpose, until some time in the year 1873, when the defendant repudiated all rights of the plaintiff, and the other members of the family in the premises, and insisted and claimed the said land absolutely, under said deed, and is now lairing proceedings to recover the possession of the same from the plaintiff.
    Eighth. That the said deed, although purporting to be a deed from Simpson Moyer, Sr., and Catharine Moyer, his wife, was not executed by the said Catharine, and she now has a dower estate in said lands, and said mortgage of $1,500 is still outstanding. That at the time of the death of Simpson Moyer the said farm was worth about $3,500; the average rental thereof since that time, exclusive of taxes, has been about. $200 ; and' the present value of the farm is about $6,000.
    Ninth. That at the time said deed was delivered the defendant understood that his father reposed confidence in him, and with that understanding accepted the conveyance and the confidence of his father, but that no pa'rt of the transaction was evidenced by any writing, except the said deed

      Murray <& Greene, for the appellant.

      Farrnell <& Burrell, for the respondent.
   Hardin, J.:

There was evidence tending to support all the findings of fact made by the referee, and we do not see any occasion to disturb the report in respect to the facts found.

It must be assumed that the parol agreement in.respect to the lands was void at law and in equity. (Wheeler v. Reynolds, 66 N. Y., 236 ; Morrill v. Cooper, 65 Barb., 519; Lathrop v. Hoyt, 7 id., 59.)

If the plaintiff’s case rested alone upon a parol promise to hold the property until the youngest child of his father should become of age, and then convey it to the children, we should be called upon to say that a court of equity had no jurisdiction to give relief, and that on the law side of the court the plaintiff was without remedy. Such seems to be the doctrine of the cases already cited.

. The same principle is declared by Osborn, J., in Hurst v. Harper (14 Hun, 282). That latter case is pressed upon us by the learned counsel of the appellant as decisive of this case. But we think that case differs from this in one or two important particulars. In that case the plaintiff had purchased the property, and put the title in Harper, for some purpose not clearly defined. There was no evidence of any agreement to re-convey.” It was held, therefore, that the statute of uses and trusts forbade the granting of any relief ‘in that case, and that the plaintiff having furnished the money to pay for the lands and taken the title to them, in Harper, she acquired no interest in the land nor in the surplus arising from the sale thereof upon a mortgage.

In the case before us it clearly appeal’s from the -finding of the referee, that Moyer, senior, was aware that his death was near at hand, and that he understood that if he died intestate the farm owned by him would descend to his thirteen children, subject to the dower right of his wife, and that he was aware that it would pass immediately upon his death to his heirs-at-law.

Having helped the older children some, it was not supposed equitable that the property should thus pass, and he desired to have it kept together as a home for his widow and the younger children until the majority of the youngest child. He so stated, and asked the defendant if for such purpose he would take the title and convey it over, upon the happening of the majority of the youngest child. The defendant assented to the arrangement, recognized it after his father’s death, and allowed the widow and her youngér children to remain in possession until 1873, soihe fourteen years, without making any claim to the contrary. They made some substantial improvements, and made expenditures upon the lands, paid the taxes thereon, and kept down the interest upon the $1,500, in the faith that such agreement was to be kept and fulfilled by the defendant. Without such an agreement, it must be assumed that the defendant would not have received the title to the lands, then worth some $3,500, subject to the .mortgage of $1,500. If the defendant was allowed to take possession and title to the lands and hold the same, discharged of any interest therein of his brothers and sisters, having paid nothing therefor, he would accomplish a fraud. To prevent such fraud, equity may take jurisdiction.

In Wheeler v. Reynolds, supra. Earl, J., says, “ But in cases of fraud, courts of equity will sometimes imply a trust, and will treat the perpetrator of the fraud as a trustee ex maleficio, for the purpose of administering a remedy against the fraud. For the same purpose it will take the trust which the parties have attempted to create and enforce it, and in such a case th % fraud, not the parol agreement, gives the jurisdiction.” This comports with the doctrine of Ryan v. Dox, 34 N. Y., 307, and with Cipperly v. Cipperly, 4 Sup. Ct. (T. & C.) 346, and cases there cited. The ground stated for the jurisdiction of the court is likewise stated in Freeman v. Freeman, 43 N. Y., 35; and in that case a promise to give a life estate in the lands, which had been relied upon by taking possession, partially clearing the lands (as in this case) and making other improvements, was enforced “to prevent a fraud from being practiced.” Grover, J., delivered the opinion in the case last cited, and also the opinion of the court in Levy v. Brush, 45 N. Y., 589, and in distinguishing the case then before the court from the principle enunciated in Ryan v. Dox, supra, and in Freeman v. Freemam, supra, he says: “ But where the party seeking performance has partly performed, or has, as in the case of Ryan v. Dox, parted with valuable property upon the faith of the contract, the case is different. In such cases equity will noi permit a party to retain property obtained on the faAth of a verbal contract to consummate a fraud by retaining the property and refusing to perform the contract!

Potter, J.,

in Foote v. Foote (58 Barb., 258), reaches a similar conclusion, and declares that the sixth section of the statute relative to fraudulent conveyances (2 R. S., 134, § 6) has no application to such a case, and that resulting trusts are excepted from their nature from the provisions of the Revised Statutes as to uses and trusts.

When Foote v. Bryant was affirmed in the Court of Appeals (47 N. Y., 547), Church, Oh. J., said: “Implied trusts, or those arising by operation of law, are not ind/uded in -the prohibition ” of-the sixth section of the Revised Statutes; and he adds: “ This statute does not preclude a party from establishing any implied or resulting trust known or recognized by the common law.

“ They arise usually from the acts or relation of the parties to the property involved, and not upon parol agreements. . . .

“ The transactions on which a trnst of this character arises may be proved by parol, but the trust itself must rest upon the acts or situation of the parties as proved, and not merely upon their declarations. The statute embraces only trusts which a/re created or declared by thq parties’’

Consistent and similar doctrine was stated by Bookes, J., in delivering the opinion of the General Term of the Fourth District in 1868, in Hobbs v. Weatherwax (38 How., 385), and by Johnson, J., in Carpenter v. Ottley (2 Lans., 451; see Hensler v. Sefrin, 19 Hun, 564.)

The authorities quoted, happily, lead ns to sustain the judgment in this case. It would be a sad. commentary upon the justice of the law if we were obliged to apply a statute passed to prevent fraud and perjuries to a case like this, and defeat the object of an afflicted man about to leave the world, and anxious to provide equitably for those dependent upon him and his little accumulations, and reverse his intent to fulfill “ the moral obligations of a parent to provide for his children,” as Story expresses it in section 1,203 of his Equity Jurisprudence.

There was no error in admitting the oral' evidence of what took place in the sick room of the father when he caused the deed to be delivered, and gave directions for, as well as' advanced, the rnonev to pay for its recording. Nor was there any error committeu in excluding the defendant from testifying to what took place in the .presence of his father on September 16, 1859, in relation to the delivery of the deed. It involved a personal “ transaction or communication between the witness and the deceased person,” his father, from, through or under whom ” he derived his interest or title. (Kraushaar v. Meyer, 72 N. Y., 602; Fisher v. Verplanck, 17 Hun, 151; Titus v. O’Connor, 18 Hun, 373; § 829, Code Civ. Pro.; Pursell v. Fry, 19 Hun, 595).

The conclusion reached by the referee accords with equity and justice, and the judgment entered upon his report should be affirmed, with costs.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed, with costs.