text:
    ELIJAH P. GREENE v. HENRY DEAL, Appellant, and OTHERS.

      Mortgage—equities between mortgagees—how fair subsequent purchaser bound by—Recording act.
    Two mortgages bearing even date were given respectively to A and B, with the understanding that they were to be equal liens'upon the real estate described in them. B’s mortgage was first recorded. Subsequently, but after A’s mortgage was recorded, B assigned his mortgage to O, and 0 thereafter assigned it to D; both 0 and D being ignorant of the understanding that the mortgages were to be equal liens upon the premises. Held, that D, being a purchaser in good faith and for a valuable consideration, might avail himself of the earlier recording of his mortgage, and that it was a prior lien to that of A.
    Two bonds and mortgages of the same date were' executed upon the same property for the purchase-money. One was given to Henry Deal, the other to Mary G. Greene, and each was expressed to be for a part of the purchase-money of the premises. It was intended by the parties that the mortgages should be equal as to priority. They were recorded on the same day; but the former was recorded at a later time than the latter. The mortgagee in the latter mortgage, Mary 0. Greene, subsequently, but after the recording of the former mortgage, assigned her mortgage to Elijah P. Greene, and he subsequently assigned it to John K. Warniclc. Warnick and Greene were each . bona fide purchasers, without notice of the agreement that the lien of the mortgages was to be equal as to priority.
    A prior mortgage had been foreclosed, and there was a surplus. Warnick claimed a priority in respect to that surplus, and Deal claimed that the two mortgages should share equally. The referee and the Special Term sustained Warnick’s claim, and Deal appeals.

      M. L. Stover, for the claimant Warnick.
    The claimant Warnick, being a bona fide purchaser of the mortgage to Mary C. Greene, and having no notice of any of the circumstances to defeat the apparent preference of that mortgage, is entitled to protection. (Corning v. Murray, 3 Barb., 652.) It is well settled that if one affected with notice convey to another without notice, the latter is as much protected as if no notice had ever existed, (Jackson v.
      Van Valkenburg, 8 Cow., 264; Jackson v. Given, 8 Johns., 137; Varick v. Briggs, 6 Paige, 323; Corning v. Murray, 3 Barb., 652; Webster v. Van Steenburg, 46 id., 212.)
    Z. S. Westbrook, for the appellant.
    The recording acts did not apply, and neither could gain priority by having his or her mortgage first recorded. (Jones v. Phelps, 2 Barb. Ch., 440; Fort v. Burch, 5 Denio, 184.) And this even if the Greene mortgage was recorded first. (Fort v. Burch, 5 Denio, 187; Jackson v. Post, 15 Wend., 25 ; Van Rensselaer v. Clark, 17 id., 25.) Deal’s mortgage was on record when they took their assignments, showing upon its face that it was equal with the other. And no presumption could arise from the record that one mortgage had priority over the other. And if any presumption arises from the record it must be that the two mortgages stand equal. Hence, these assignees are chargeable with direct notice that the two mortgages stood equal, or they were at least bound as men of ordinary prudence to inquire and ascertain the condition of the two mortgages as to their equality. (4 Kent, 179; Williamson v. Brown, 15 N. Y., 354; Tuttle v. Jackson, 6 Wend., 226.) Whatever is sufficient to put upon inquiry is equivalent to actual notice.
   Learned, P. J.:

The question in this case is whether a purchaser in good faith, without notice and for a valuable consideration, of a recorded mortgage, is bound by a verbal agreement between the mortgagee therein and the mortgagee in another mortgage recorded at a later date, on the same premises, that the .two should be equal in priority; such agreement having been made at the time of the execution of the mortgages. There was nothing in the mortgage itself) held by Warnick, to give him notice that there was another mortgage on the same premises, of equal priority. The fact that it was described as a purchase-money mortgage, gave no such notice. Even if he had known that there was another purchase-money mortgage, it would not follow that it was intended that the two should be equal in priority. Two purchase-money mortgages of the same premises are some times given, of which one is intended to be the prior lien.

The question then arises as to the effect of the recording act. Mortgages are conveyances under that act. (1 R. S., [m. p.] 762, § 70 [38].) When Warnick, therefore, bought the mortgage of Greene, he would look to see whether Greene had previously assigned it, and whether it had been assigned to Greene. Finding, as he would, an assignment to Greene from Mary 0. Greene, the original mortgagee, he would examine whether she had previously assigned the mortgage. If she had not, then he would examine whether there was any incumbrance recorded prior to the recording of this mortgage ; and if there were none on record, he would be entitled, having no actual notice of any prior incumbrance, to assume that none existed which could affect him. (1 R. S., [m. p.] 756, § 1.)

This matter was expressly decided in Corning v. Murray (3 Barb., 652), a case almost identical with the present. And it is pointed out in that case, that the matter in dispute is not “ within the rule that an assignee of a chose in action takes it subject to the equities existing against it in the hands of the assignor. The only application that has ever been made of this rule, is, that the original debtor can make the same defense against the assignee that he could have made against the assignor.” (See Murray v. Lylburn, 2 Johns. Ch., 441, for the reason of this distinction.)

The case of Jackson v. Post (15 Wend., 588), is explained in Hooker v. Pierce (2 Hill, 650). It is there said that “ the registry of the grantor’s deed inures, in the nature of things, to the benefit of all those who claim under him. They become entitled to use all his habiliments of title as their own. His registry is theirs.” That is to say, in the present case, Warnick is entitled to the benefit of the recording of the mortgage by Mary C. Greene. Her recording is his. By this construction only, can proper effect be given to section 1, above cited. (See Crofut v. Wood, 10 S. C. [3 Hun], 571.)

It cannot be that a bona fide purchaser, finding the chain of title clear of incumbrances while it was in the successive persons through whom he claims, is required to examine the records for subsequently recorded incumbrances. It is true that the language of the statute is, that the unrecorded conveyance shall be void against any subsequent purchaser in good faith and for a valuable consideration, “ whose conveyance shall be first .duly recorded.”

But I think that the words, “ whose conveyance,” must be construed to include the conveyances of his grantors, mediate, and immediate. Their recording inures to his benefit; and, with his good faith, gives him a title indefeasible by the unrecorded deed. The evil of a contrary construction (as claimed by the appellant) may be shown by an illustration. Suppose A'conveys to B, and subsequently the same land to G, who has knowledge of B’s deed. C records his deed and conveys ‘ to D, who buys in good faith. Subsequently to the conveyance to D, B records his deed. Now, as to D, it is plain that B’s deed is void. But if, by subsequently recording it, B can charge purchasers from D with knowledge of it, then D is prevented from selling his land, and its value is taken • away without his fault. I think that this cannot be, but that the purchaser from D is entitled to the benefit of the prior recording of D’s deed.

So, in the present case, Warnick is entitled to the benefit of the prior recording of Mary G. Greene’s mortgage. He is not affected by the fact that another mortgage was subsequently recorded, although such record was made before he took the assignment to himself.

To state the principle in brief, the purchaser in good faith and for a valuable consideration, may avail himself of a prior recording by his grantor.

The order appealed from should be affirmed.

Present — Learned, P. J., Boardman and James, JJ.

Order affirmed, with ten dollars costs and printing expenses.

Note.—The case of the Trustees of Union College v. Wheeler and others, recently decided in the Commission of Appeals (not yet reported), appears to he in conflict with the statement contained in the opinion, that the rule, that an assignee of a chose in action takes it subject to the equities existing against it in the hands of the assignor, is applicable only to equities existing between the original debtor and the assignor. The facts of that case, so far as they bear upon this point, were, that prior to 1838, A, B and C were jointly interested in the purchase of certain lands, the title to which was taken in the name of A. A, with the assent of the other parties, sold certain of the lands, giving contracts of sale thereof to the purchasers. The title to two undivided thirds of this land, including the lands thus contracted to be sold, afterward passed to B, who executed to C a mortgage thereon covering both the lands contracted to be sold and those unsold, for the foreclosure of which the action was brought by D, a bona .fide purchaser thereof from C for value, without notice of the existence of the contracts of sale. D did not put on record his assignment for several years after its delivery to him, and during this time, C, assuming to be the owner of the mortgage, executed releases from the lien thereof of a portion of the mortgaged premises which had not been contracted to be sold, and the. value of which exceeded the amount due on the mortgage.

In the foreclosure suit, the parties holding contracts of sale claimed that their lands were not liable to sale under the mortgage, by reason of the release of lands primarily liable and equal in value to the amount due on the mortgage, and that the equities which they were entitled to set up as agaiñst 0, who had taken the mortgage knowing (constructively at least) of such contracts, were equally available against D, his assignee, though a purchaser in good faith without knowledge of their existence.

The referee dismissed the complaint as to the defendants who had contracts of sale. The General Term affirmed the judgment entered on the report of the referee, so far as it related to lands of which the purchasers had, before the mortgage was given, actually entered into possession, and reversed it as to those who had not entered into such actual possession, holding (59 Barb., 585; S. C., 5 Lans., 160) that the plaintiff was chargeable with constructive notice- of the interests which the purchasers in actual possession of the lands held by them had therein, and on that ground held that their lands were not subject to the lien of the mortgage.

The Commission of Appeals, while affirming this proposition, did not assent to the further view expressed by the court below, that the plaintiff, being .a bona fide purchaser, was not chargeable with the notice that 0 had of the rights and equities of the contract purchasers; and Dwight, 0., in his opinion, says: “ It is well settled that an assignee of a mortgage must take it subject to the equities attending the original transaction. If the mortgagee cannot himself enforce it, the assignee has no greater rights.” Again he says: “A considerable number of authorities are cited by the plaintiff, as tending to show that the assignee of a chose in action is only subject to the equities between the creditor (assignor) and the debtor, and not to the so-called equities of third persons; such cases, as James v. More (2 Cowen, 298) and others of the same class, were reviewed as to their principle, or specifically, in Bush v. Lathrop (22 N. Y., 535), and repudiated.”

These views, though their expression may not have been necessary to the decision in this case, and may be regarded as obiter dicta, appear to be in harmony with those of the present Court of Appeals, as laid down in the case of Schafer v. Reilly (50 N. Y., 67), in which it was held that a mortgage, executed to an agent of the mortgagor for the purpose of being negotiated, recorded and subsequently negotiated, but before the assignment and delivery of which to the assignee another person acquired a mechanic’s lien upon the mortgaged premises, was a charge upon the premises subordinate to the mechanic’s lien, and that this was so, notwithstanding the assignee, before taking the assignment, acquired and obtained from the mortgagor an affidavit that the mortgagee advanced the whole sum of principal secured by the mortgage without abatement, and that there was no offset, defense or counter-claim thereto. Judge Allen says in his opinion : “ Eminent judges have pronounced in favor of a rule which would only subject the purchaser of choses in action to the equities of the debtors, and which would give them rights as they apparently exist against third, persons, but these views have not prevailed." The doctrine laid down in Schafer v. Reilly, which was decided upon the authority of Bush v. Lathrop (22 N. Y., 535), has been so far qualified by the Court of Appeals, as that a bona ficle purchaser of a chose in action, not negotiable, from one to whom the owner has transferred the apparent absolute ownership, and who takes upon the faith of such ownership, obtains a valid title as against such owner, although his vendor had not such title.(Moore v. Metropolitan Nat. Bank, 55 N. Y., 45, 46.) This qualification, however, rests upon the doctrine of estoppel, which is not applicable to the present case.

In the case of Hooker v. Pierce (2 Hill, 650), cited by the court in the present case, the existence of a different state of facts is said to distinguish it from the decision of the case of Fort v. Burch (5 Denio, 187), which holds that if a junior mortgagee, with notice, assign to one who has no notice, the assignee is entitled to the preference, provided he record his assignment before the prior mortgage is recorded, but that if he omits to record the assignment, his want of notice will not avail, and from the cases of Jackson v. Post (15 Wend., 588); Van Rensselaer v. Clark (17 id., 25); King v. Richardson (3 Keyes, 450); Goelet v. McManus (1 Hun, 306), holding substantially the same doctrine in regard to the effect of the record of a prior deed recorded subsequently to one taken with notice thereof, and before the taking of a conveyance from the grantee thus affected by notice; the case of Hooker v. Pierce holding that, while in accordance with the principle laid down in Jackson v. Post and the cases which have followed it, a subsequent purchaser is bound to notice prior conveyances, yet, that, in that case (Hooker v. Pierce), the facts did not justify the application of that principle, as the title which was there attempted to be established against the subsequent purchaser, was not acquired through & prior conveyance.

In the present case it may also be said that, as both mortgages were given at the same time, neither can be said to be subsequent to the other, and therefore the provisions of the recording act did not apply to Deal’s mortgage, as they would have done under the decision of Jackson v. Post, had it been prior, and not of the same date and time of delivery as that of Warnick, the rule laid down in Hooker v. Pierce (2 Hill, 654) only requiring “purchasers to search for registries subsequent to their own in order to detect prior conveyances,” though this construction does not appear to be justified by the words of the recording act.

The views expressed in the opinion in the present case'appear, however, to go much further than this, and to be, to a great extent, subversive of the principles laid down in Jackson v. Post, even as they are qualified in the decision of Hooker v. Pierce, and to give to the recording act a construction, if less literal, more in harmony with its intention, and purpose, and one which, affording to innocent purchasers a protection against latent equities, makes it sufficient to search the records against each party who has had title or interest in the premises during the time that the record shows such title orinterest to remain in him, instead of requiring a search to be made against each such person from the time of the acquiring of such title or interest, to the date of the search, although the record may show that he has conveyed away his interest fifty years prior to the time of the search. This decision shows a departure from the technical rule laid down in Jackson v. Post, and gives a security to real estate titles, which, under that decision and the views expressed in the cases which have followed it, they were very far from possessing, the general practice of the profession being to search the record.against persons who held title to the property only during the time the record showed such title to remain in each, thus leaving the title uninvestigated in particulars in which there was certainly a possibility of defects being afterward shown. — [Rep.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    JANE C. HAM, Respondent, v. EDMUND H. VAN ORDEN, Appellant.

      Statute of frauds—acceptance.

    The mere words of a contract for sale of chattels do not constitute an acceptance within the provisions of the statute of frauds. The vendee must act so as to indicate that he receives and accepts the goods.
    Appeal from a judgment of the County Court of Greene county, affirming a judgment of a justice of the peace against defendant.
    This is an action for the purchase-price ($125) of certain furniture. The defense is the statute of frauds. The only question is, whether the goods were accepted and received, so as to take the case out of the statute. The action was tried in a Justice’s Court, and the plaintiff recovered. On appeal to the County Court the judgment was affirmed, and the defendant appeals.
    The contract for the sale was verbal, and none of the goods were delivered at the time. The defendant had offered $125 for this furniture, and about a week afterward, at plaintiff’s house, she told him he could have it, and he said he would take it. The defendant asked how long it would take to get the things together, and the plaintiff said two or three days. He wondered if he could get Watson, the plaintiff’s son, to bring it down; i. e., from her house to his. At a subsequent conversation the defendant said: “ Jane, about that furniture — I want you to get Watson to bring it down.” The plaintiff testified: “ I said I could not produce all the things; that some had been broken and some worn out. He said: No matter ; you send them on and all will be right.’ ” Or, as another witness for the plaintiff testified, the plaintiff said: “How about that furniture 1 I can’t deliver all the articles you bought of me; some are broken, some worn out while ma was living, and some are in the cemetery.” He replied: “Yes, Jane, I know all about that; see if you can’t trust me; you tell Watson to bring the things down for me; we won’t have any trouble about it.”
    The defendant denied this, and testified that he said he would take the furniture at that price, if she would deliver it in good order and give him notice before it was delivered; that if he had the furniture, she would have to trust the things in his hands,- and that he did not ask her to tell Watson to bring the things down for him.
    The day following this last conversation, Watson, the plaintiff’s son, took the goods down to the defendant’s house. The defendant was not at home, and Watson left them. The defendant refused to take them when he found that they had been left.

      Jacob I. Werner, for the appellant.

      Samuel Hand, for the respondent.
   Learned, P. J.:

It is well said, in Shindler v. Houston (1 N. Y., 261), that “ the acts of part payment, of delivery and acceptance, mentioned in the statute, are something over and beyond the agreement, of which they are a part performance, and which they assume as already existing.” And again, in the same case, “ there must be an actual acceptance by the latter [the vendee], with the intent of taking possession as owner.” Again, in Caulkins v. Hellman (47 N. Y., 449): “Even the receipt of the goods without an acceptance is not sufficient. ' Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required.”

What was there in the present case ? Only a verbal agreement.The plaintiff claims that the defendant accepted the furniture, because, in the presence of the furniture, he agreed to buy it, and then, that he received it the next day by its delivery to Watson, alleged to be his agent for that purpose. But the mere words of the contract for sale are not acceptance. Acceptance requires “ that the vendee should also act [not talk], and that his act should be of such a nature as to indicate that he received and accepted the goods delivered as his property.” (Rodgers v. Phillips, 40 N. Y., 519, 524.) In the present ease the defendant did no act whatever, except to make the contract. Some of the furniture was not even present; some was broken; some was in the cemetery. Even as to the contract actually made, if the matter of fact were before us for review, a fair understanding of the testimony, perhaps, would be, that he was not bound to the price of $125, if the furniture should prove to be in bad condition. But, however that may be, whatever the mere verbal agreement was, the defendant did no act which can be called an acceptance of the property. It may be that he agreed to accept the furniture. But, as a matter of fact, he did not accept anything. (Brabin v. Hyde, 32 N. Y., 519; Brand v. Focht, 3 Keyes, 409; Good v. Curtiss, 31 How., 4.)

It is said that the acceptance and the receiving may be at different times. (Cross v. O'Donnell, 44 N. Y., 661.) Even if this be correct, it cannot be said that, in the present case, there was any acceptance of the goods by the act of Watson. Assuming that the goods were to be delivered to the defendant at the plaintiff’s house, yet, as the contract was verbal, it was necessary that he should manifest his acceptance by some act. So that the delivery of the goods by the plaintiff to Watson, that they might be carried to the defendant’s house, was not an acceptance by him. And, indeed, the plaintiff does not argue that the delivery to Watson was an acceptance, but that the acceptance had preceded. No such acceptance, as is before said, had in fact taken place, and Watson had no authority from the defendant to accept. The plaintiff should have been nonsuited.

The judgment must be reversecf, with costs.

Present—Learned, P. J., Boardman and James, JJ.

Judgments of County Court and justice reversed, with costs.


author: Learned, P. J.

text:
    THE OGDENSBURGH AND LAKE CHAMPLAIN RAILROAD COMPANY, Appellant, v. THE VERMONT AND CANADA RAILROAD COMPANY and others, Respondents.

      Construction of agreement—right of corporation to maintain action for.

    Where a railroad corporation, organized under the laws of this State, has leased its road to a foreign corporation for a term of years, and subsequently an action is commenced against it by the attorney-general to have its charter forfeited on the ground that the agreement was illegal,, such corporation cannot bring an action against the corporation with which it has contracted, to have this court decide whether or not such contract was ultra vires, and, if it be so, to adjudge it entitled to recover possession of its property.
    Appeal from a judgment sustaining demurrers, interposed by the defendants.
    The complaint sets forth that the plaintiffs are a railroad corporation under the laws of New York, and the owners of a certain railroad therein; that from their organization until March, 1870, they used said road and performed their duties as owners of the franchise; that in February, 1870, they entered into a written agreement between themselves, as parties of the first part, and the Vermont and Canada Railroad Company, a corporation under the laws of Vermont, and the managers and trustees of the last mentioned railroad under the laws of that State and the decrees of the courts thereof, as parties of the second part, which agreement was executed by the plaintiffs, under their corporate seal, by the order of their board of directors; that the Vermont and Canada Railroad Company is not incorporated under the laws of New York; that it had made default on its bonds, and the other parties of the second part were, at the time of executing the agreement, acting as trustees, managers and receivers of said road, under some decrees of the courts of Vermont unknown to the plaintiffs; that as to the authority of such trustees, managers and receivers to enter into the agreement, the plaintiffs are ignorant; that, at that time, the Vermont and Canada Railroad Company was insolvent, and had little or no property beyond the incumbrances; that the Central Vermont Railroad Company, one of the defendants, a corporation under the laws of Vermont, claims to have succeeded to the rights of the parties of the second part in said agreement; that in March* 1870, the executive officers of the plaintiffs, in pursuance of orders of the board of directors, and in conformity with said agreement, delivered possession of the plaintiffs’ railroad to the said parties of the second part; that John Schrier, one of the defendants, residing in New York, is now superintendent of said railroad, in charge thereof; and that said Central Vermont Railroad Company and said John Schrier, claiming under said parties of the second part, have possession of said railroad.
    The plaintiffs further aver, that recently the people of the State of New York, through their attorney-general, have asserted and claimed that the aforesaid agreement was beyond the corporate powers of the plaintiffs; was illegal and void, and subjected the plaintiffs to a forfeiture of their charter; that the people, in 1874, commenced an action against these plaintiffs to declare such forfeiture ; that the plaintiffs have kept up their organization; that the amounts payable to the plaintiffs under said agreement have been paid, and that from these moneys they have paid interest on bonds and dividends; that, since the defendants have had possession of said railroad, they have worn out and consumed large portions of the rolling stock, etc., some of which they have replaced ; that the plaintiffs claim that that which has thus been supplied by the defendants has become the property of the plaintiffs by substitution.
    The agreement, which is set forth at length, is, in substance, a lease of the road by the plaintiffs to the parties of the second part, for twenty years, at a rent of $386,620 for each year for the first three years, and a larger sum for the succeeding years, payable monthly, besides taxes, and $15,000 per annum for the expenses "of maintaining the organization of the plaintiffs; the parties of the second part to keep up the track and equipment.
    The plaintiffs aver that the agreement was made in good faith, and on the belief that it was legal; that, if it be adjudged valid, the pecuniary result is not objectionable to them, and they would be content therewith; that if it be unauthorized, they desire to be relieved therefrom, to the end that they may resume and perform their duties. And they ask a judgment of the court, whether said agreement be beyond the corporate powers of the plaintiffs, or illegal; and that, if it be adjudged to be beyond such powers or illegal, they may recover possession of the railroad and equipment, together with all new or substituted rolling stock and equipment.
    The defendants severally and separately demurred; the defendant Schrier, generally, on the ground that the complaint did not contain facts sufficient to constitute a cause of action; the other defendants on the ground of a want of jiirisdiction of the persons of the defendants.
    The demurrers were sustained and the defendants had judgment, from which the plaintiffs appeal.

      Wm. M. Evarts and L. Hasbrouck, Jr., for the appellant

      Edward C. James, for the respondents.
   Learned, P. J.

The object of this action is to obtain the advice of the court. The plaintiffs do not allege that they have been injured, nor do they ask for redress. They wish to be informed whether a contract which they made was illegal; a matter about which neither they, nor the other party to the contract are alleged to be in doubt.

Executors and trustees are allowed to come into court for the construction of instruments and directions as to their duties. In a like manner, those standing as eestuis que trust, have had the same privilege. The general ground on which such actions are permitted, is, that the trustees or executors have, under some instrument, future duties to perform, about which they are in doubt; that there are conflicting claims as to what these duties are; that the duties are imposed on them by the words of some other person ; that in their trust capacity, they are entitled to protection in equity. Ho such circumstances exist in this case. Under this instrument, there is no doubt or misunderstanding as to the plaintiffs’ duties. They are simply to receive a sum of money monthly. There are no conflicting claims as to their duties under this instrument. Hone but the stockholders claim the money which they receive. The language of the instrument is their own, and their duties are not imposed lwsome other person. And the plaintiffs do not act in a trust c city, 'entitling them to the protection of equity. The corporation plaintiff is a person. It has its duties undoubtedly, like other persons, but the affairs which it manages are its own.

The case is simply this: Two persons have made a contract of lease, one to the other. A third person has alleged that the lease is illegal. And the lessors ask the court to say whether it is or not. The lessors do not allege its illegality, or ask to have it set aside. On the contrary the lessors aver that they are content. And the lessees are content. There is no controversy for the court to settle. Courts do not sit to lay down principles of law, but to decide controversies. And here is none. And it is not best that courts should lay down principles, except as the result of actual controversy. To take the present case, for illustration. The question we are asked to pass upon, is, whether such a lease is beyond the powers of a corporation: ultra vires. Now, both the' plaintiffs and the defendants apparently think that it is not; for they acted on that view; and even now they seem to desire a decision in the negative. There is no probability, therefore, that the arguments for the affirmative will be presented with that force which they would have in a real controversy. In fact, it looks much as if this suit were brought only to obtain a quasi decision, which might serve as a precedent in the action brought by the people, in which it is distinctly alleged that this lease was ultra vires, and worked a forfeiture of the charter.

Furthermore, it may be that, while such a contract is ultra vires, and while the State may thereupon allege a forfeiture, yet the contracting party shall not be allowed to set up the invalidity of his own act. Or again, if the contract were beyond the power of the directors, yet, possibly, the approval of the stockholders might be sufficient to affirm it. Or, once more, it might possibly be affirmed by some of the stockholders, while others might disavow it. We do not pass on these points. We suggest them to show the impropriety of our deciding a question presented in this manner. So long as the State does not enforce a forfeiture, why should the plaintiffs raise any question as to the legality of the contract? They made it, and, until somebody objects, they would best observe it. When the State shall attempt by action to enforce such forfeiture, it will be time enough to decide in that action whether the charter has been forfeited by reason of this lease. When a stockholder shall complain that the directors transgressed their powers in making this lease, it will be time enough to inquire whether he has not ratified their act.

And again: Whenever executors or -trustees, or the cestuis que trust, come into court for the construction of an instrument, they bring in as parties all who are affected by the conflicting construction. Now, in the present instance, if there be any one who claims that the lease is void, as ultra vires, it is the people; yet they cannot be heard in this action.

The plaintiffs have carefully omitted in their complaint any allegation that the lease is illegal, or that they desire to have it set aside. They only allege that, if it is illegal, they desire to be relieved therefrom.

It may be said that the plaintiffs, as a railroad corporation, have certain public duties, and therefore ought to be instructed as to the legality of their acts. It is enough to say, that if, before entering into this contract, they had brought an action similar to the present, stating their intention to enter into such a lease, and-the threat of the attorney-general that the lease would be ultra vires, and their desire that the court should adjudge whether or not such a lease would be valid, no one would have thought that such an action could be sustained. Now they have acted; if legally, it is all right; if illegally, they must, like other persons, take the consequences. Thus far the consequences have contented the plaintiffs and the defendants.

We may see that the view above taken of the nature of this action is correct, if we consider what judgment could be granted on default. (Code, § 275, sub. 1.) The plaintiffs could not have a judgment that the contract was.illegal, but only an adjudication whether or not it was illegal; and as none of the parties to the action aver its illegality, the court would be deciding a matter not disputed. It is possible that the plaintiffs are unwilling to aver that the lease was ult/ra vi/t'es, lest such an averment should be used to their prejudice in the suit of the people. But, however that may be, such unwillingness shows the absence of all controversy between the parties to this action. They seem to be in complete harmony, which the court ought not to disturb.

This action, then, cannot be maintained. There is nothing before us which calls on us to decide whether or not this contract was ultra vires. It is therefore unnecessary to decide the question of jurisdiction. In the general view taken by the Special Term of this matter we concur. In a proper action, brought by the plaintiffs to recover possession of property within this State, to which the non-resident defendants or the foreign corporation claimed some title or interest, we do not understand that the Special Term held that no jurisdiction could be obtained ; jurisdiction that is sufficient to enable the court to adjudge possession of the property. In accurate language, there is probably no action now (except in admiralty) which can be called an action im. rem. But some times the subject of the action is real or personal property in this State. Then the court can obtain a quasi jurisdiction of non-residents and of foreign corporations. (Code, § 135, sub. 4.)

The judgment and order appealed from should be affirmed.

Present — Learned, P. J., and Boardman, J.

Judgment affirmed, with costs.


text:
    JULIA A. C. PARHAN, Administratrix, and another, Administrator, of HENRY A. CLEVELAND, Deceased, Respondent, v. JOHN MORAN, Appellant.

      Letters of administration—effect of—Evidence— Oode, § 399.
    Where a plaintiff sues as administratrix, her representative character is sufficiently-established by the production in evidence of letters of administration, issued in proper form by any officer having jurisdiction.
    Where, in an action brought by one to whom letters of administration have been duly issued, the defendant claims that the person alleged to be dead is still alive, he cannot be allowed to testify as to conversations had with the alleged intestate, prior to the issuing of the letters of administration, which conversations tend to show that such person is still living.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      This action was brought to recover moneys collected by the defendant under a power of attorney, given him by Henry A. Cleveland, the plaintiffs’ intestate. It was admitted that the defendant, as such attorney of said Cleveland, had received and still had these moneys, and that a demand had been made by the plaintiff- prior to the action. Part of the moneys were Cleveland’s share of land sold • under a judgment in partition in 1867. The plaintiff gave in evidence her petition to the surrogate for the issue of letters of administration, and the letters issued thereon, May 17, 1871. By the petition, it appeared that Cleveland was a sailor, and went to sea in 1858, and that he had not been heard from since.
    The defendant was sworn on his own.behalf, and offered to show conversations between himself and Cleveland in 1858, in which Cleveland stated his intention of going abroad for a long time; the unfriendly terms on which he was with the plaintiff; and his desire that the defendant should take care of his property. The defendant further offered to show an understanding between Cleveland and his stepmother, in regard to a certain note, for the purpose of showing the feeling between Cleveland and his family when he left the country. The testimony was objected to as incompetent and inadmissible under section 399 of the Code, and was excluded.
    The defendant testified, on cross-examination, that he had not seen Cleveland since he left in April or May, 1858, or received any letters from him, and that the moneys received for the account of Cleveland were mingled with his own.
    The referee reported in favor of the plaintiff, and the defendant appeals.

      Samuel Hand, for the appellant.

      John B. Gale, for the respondents.
   Learned, P. J.:

First. The statute (2 R. S., [m. p.] 80, § 74) declares that letters of administration, granted by any officer having jurisdiction, shall be conclusive evidence of the authority of the persons to whom the the same may be granted. This, the revisers said, was declaratory of existing law. (Notes. See § 2, Phil. Ev. [4th ed.], 77; Noel v. Wells, 1 Levinz, 235.) In Belden v. Meeker (2 Lans., 470; affirmed 47 N. Y., 307), it was held that “ the letters of administration in due form, produced in evidence, are sufficient to establish the representative character in which the plaintiff assumes to sue.”

The plaintiff went further, and proved the petition presented to the surrogate. This showed that the deceased at, or immediately previous to, his death, was an inhabitant of Rensselaer county, and it alleged his death. By 2 Revised Statutes (m. p., 73, § 23), these facts gave the surrogate jurisdiction. By the subsequent section (26), the surrogate, before issuing letters of administration, is required to take proof of the fact of death and of intestacy. When he granted letters, therefore, lie made a judicial.decision, upon proof, of a matter over which he had jurisdiction. This must be conclusive, until reversed or vacated.

Second. But again, the defendant offered himself as a witness to . testify to conversations had by him with Cleveland prior to the issue of letters of administration. It was objected that he was inadmissible under section 399 of the Code. The defendant ingeniously answers this objection by saying that the object of his testimony was to prove that Cleveland was yet alive. As the case stood at that point of the trial, Cleveland was proved to be dead. Even assuming (which we do not decide) that in this action the defendant might- dispute the fact of Cleveland’s death, still the express language of the Code forbade him, a party called in his own behalf, to' testify to personal communications between him and Cleveland, against Cleveland’s administratrix. There could be no doubt that the plaintiff actually held that character; and therefore the statute protects her from the testimony of the opposing party as to such matters. The only condition which would allow this testimony to be received, is, that it should first be established, otherwise than by the defendant’s testimony, that Cleveland was not dead at the time of the trial, if, indeed, the conclusive effect of the letters of administration is open to contradiction. It should be particularly noticed, that the defendant offered no evidence of any communications between himself and Cleveland subseqxient to the issue of the letters. No such question arises, therefore, as an offer to show transactions with a living man, at a date after letters of administration had been issued on his estate.

Third. If the matters offered had been admitted, the result could not have been changed. The surrogate had decided (and we must presume on sufficient proof) that Cleveland was dead. In making that decision he was not limited to the evidence given by the petitioner. He was at liberty to take other proof. Whether he did so or not does not appear. Now the defendant offered to prove that, when Cleveland went away, he said that he intended to be gone a long time; that he was on unfriendly terms with his sister; and similar matters which might tend to account for a protracted absence. Suppose that these had been proved. Would they have authorized the referee to hold the letter» of administration null % For all that appears, these very facts may have been before the surrogate when he decided. For all that appears, he may have had positive proof of Cleveland’s death. It is not here a mere question of presumptions. A tribunal, specially charged with the duty, has decided that Cleveland is dead. This offer is an attempt to have this court come to a different conclusion on the same evidence, or part of the same. And the evidence now offered is quite insufficient. For it is not an offer to show anything which took place after the letters of administration were issued.

Fourth. The defendant further objects that the plaintiff is not entitled to the avails of the land, sold in 1867 under partition, because, as he avers, Cleveland must be presumed to have died in 1865, and the land must be presumed to have descended, then, to his heirs, before the sale.

There seems to be a slight inconsistency in these several positions of the defendant. He urges, first, that Cleveland is now alive, and secondly, that he was dead in 1865. But as the land was partitioned against Cleveland, and as the defendant, Cleveland’s attorney, received his share, it does not lie with him to deny that it was Cleveland’s money. He is estopped.

In regard to these objections, it may be said, that if the defendant had voluntarily paid the plaintiff, no one would probably doubt that such payment would be good.

It must be that a debtor may safely pay to the administrator, without inquiry as to the actual fact of the death of the alleged intestate. If this be so, it would seem that all these objections are quite immaterial to the defendant.

The judgment must be affirmed.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.


text:
    HIRAM B. THURBER and another, Respondents, v. JOHN M. CHAMBERS and others, Appellants.

      Devise of real estate — charge upon — “ Heirs ” — effect and meaning of— Code, § 270 — reference — effect of report.

    A testator, after having devised certain real estate to his widow for life, remainder to an adopted son and his heirs, directed that certain legacies should be paid, and that one W. should be supported out of his estate for her natural life, and further provided as follows: “Theestate hereby devised to H. T. [the son] is charged with the payment of the bequests mentioned in this section of this will, and the same are a mortgage on the estate so devised.”
    The son died in the lifetime of the testator, leaving ten children, of whom the plaintiff was one. The plaintiff, after the death of the testator, expended $3,416.43 in the support of W. The plaintiff, claiming an interest in the land under the will, brought this action to secure a partition thereof, and to have the amount expended by him in the support of W. declared a lien thereon. The land was sold for $3,282.39. Held, that it was immaterial whether or not the devise to plaintiff’s father had lapsed, as the money expended by him in the support of W. was a lien thereon and exceeded in amount the value of the land.
    The effect and meaning of the word “ heirs ” considered.
    Under section 270 of the Code, the court may, by consent of the parties, order a reference to determine any issue or question of fact, instead of directing the same to be tried by a jury.
    When in such cases the referee is directed to report his proofs with his finding, his report has the same effect as the verdict of a jury would have, and the judge is at liberty to form his own conclusions of fact and of law upon the evidence, using the report as merely advisory.
    Appeal from a judgment in an action of partition, directing a sale of the premises and distribution of the proceeds.
    Two questions were presented by this appeal: First, whether or not certain real estate formerly owned by one Kelsey T. Thurber, and by him devised to an adopted son, who died during the lifetime of the testator, passed to his children or to the heirs at law of the testator ; and, second, whether or not the plaintiff was entitled to charge upon the said land the amount expended by him in supporting one Elsie Whitney, whose support and maintenance was provided for by the will. The clause charging the payment of the legacies, including the support of Elsie Whitney, upon the land, was as follows:
    “ And I also will and direct that Elsie Whitney, an aged lady who has resided with me for nearly forty years, shall be supported, maintained and provided for out of my estate during her natural life, and the estate hereby devised to Hiram B. B. Thurber is charged with the payment of the bequests mentioned in this section of this •will, and the same are a mortgage on the estate so devised to the said Hiram.”
    On the day of making his will the testator conveyed, by deed, one half of his real estate to his said son H. B. B. Thurber. By an order of the court, dated October 14, 1873, it was referred to Leslie W. Russell to take the proofs upon the issues and report the same with his findings of fact; and also to take and report the proofs on the default as required by the seventy-ninth and eightieth rules. The referee made his report with proofs annexed, dated March 28,1874. There was no conflict of testimony. The plaintiffs filed exceptions to this report, because, as they claimed, it omitted to find material facts established by the evidence; also, because it found certain facts which were not proven; and also because it contained conclusions of law which the referee was not authorized to make, and which were erroneous. The plaintiffs brought the cause to final hearing upon the report, proofs and exceptions. On this trial the original will was put in evidence. The court gave judgment May 5, 1874, allowing plaintiffs’ exceptions and modifying the report accordingly.

      Vary & Stone for the appellants.
    The Special Term had. not authority to change the findings of fact made by the referee. The Special Term has not the right to change, modify or reverse the finding of a jury or referee, so as to conform the facts to the opinion which the judge holding such term may entertain of the case. It was not the practice in chancery for the court to reverse or alter the finding of the facts made by a master. The practice was to refer back to the master to amend his report according to the exceptions as allowed. (Demott v. Benson, 4 Edw., 297, 307; Clark v. Willoughby, 1 Barb. Ch., 68.) If incorrect in part, it might be recommitted for correction of errors and established as to the residue. (Callender v. Cosgrove, 17 Conn., 2.) The most a Court of Chancery would do was to correct mere errors of calculation. (Utica Ins. Co. v. Lynch, 2 Barb. Ch., 573.) The devise of real estate to Hiram B. B. Thurber lapsed by the death of said Hiram before the death of testator. At common law all devises lapse by death of the devisee before the testator. (2 Black. Com., 513; Chrystie v. Phyfe, 22 Barb., 195; Campbell v. Rawdon, 19 id., 499; Bishop v. Bishop, 4 Hill, 138; Van Buren v. Dash, 30 N. Y., 393.)

      Edward C. James for the respondents.
    The appellants never had any interest whatever in the property in question. At the time this will was made, Hiram. B. B. Thurber had ten children living on the adjoining farm. They answered the description of the words “ and his heirs,” and as such took a vested remainder under this devise. (Moore v. Littel, 41 N. Y., 66; Sheridan v. House, 4 Abb. Ct. of App. Dec., 218; 4 Keyes, 569; House v. Jackson, 50 N. Y., 161, 165; Campbell v. Rawdon, 18 id., 412; Chinn v. Keith, 4 N. Y. S. C., 126; Vannorsdall v. Vandeventer, 51 Barb., 137; Heard v. Horton, 1 Denio, 165.) The word “ heirs ” will be construed “children” whenever that appears to be the intention of the testator. (Taggart v. Murray, 53 N. Y., 233, 238; Bundy v. Bundy, 38 id., 410, 421; Kiah v. Grenier, 56 id., 220; Prindle v. Beveridge, 7 Lans., 225.) Even at common law, a devise to “A and his children” vested an estate in them as a class with their father, if he had any children living at the time. (Wild’s Case, 6 Coke, 17; Oates v. Jackson, 2 Strange, 1172; Ex parte Williams, 1 Jac. & Walk., 91, note; Cook v. Cook, 2 Vern., 545; In re Sanders, 4 Paige, 293, 297; Hannan v. Osborn, id, 336, 341, etc.; O’Brien v. Heney, 2 Edw. Ch., 242, 248, 249.) It is quite immaterial in this case, whether the estate in remainder in the Kelsey T. Thurber half, passed to the heirs of the adopted son or to the heirs of the testator, for it is expressly charged with the money legacies, and mortgaged for the support of Elsie Whitney,t and these claims amount to nearly double the sum which it produced on the sale. There is nothing left for the owners of the fee. The support of Elsie Whitney is charged upon the estate devised, and not on the devisee; upon the remainder, and not on the life estate; and it, together with the legacies, is declared to be a mortgage on such estate .in remainder. (Godard v. Pomeroy, 36 Barb., 546; Birdsall v. Hewlett, 1 Paige, 32; Hogeboom v. Hall, 24 Wend., 146.) “An equitable mortgage may be created by any writing from which the intention to- create it may be shown.” (Chase v. Peck, 21 N. Y., 581, 583.) The obligation to pay it is imposed by statute upon the devisee or heir, and not on the personal representatives. (1 R. S., 749, § 4.) If the devise did not lapse the plaintiff is entitled to pay on the principle of contribution. (Stevens v. Cooper, 1 Johns. Ch., 425, 430; Cheesebrough v. Millard, id., 400.) But if the devise lapsed, equity does not allow the heirs to take the land and defraud the plaintiff of all compensation. In such case the party who has paid the mortgage is entitled to enforce the lien, on the principle of equitable assignment or subrogation. (1 H. & W. Lead. Cas. in Eq. [3d ed.], 152-156; 2 id., 230, 231 ; Matthews v. Aiken, 1 N. Y., 595, 600, 604, 605; Carter v. Jones, 5 Wend., 193; Croft v. Poole, 9 Watts, 451, 455.)
   Learned, P. J.:

Kelsey T. Thurber, in 1850, made his will. 1st. He gave his personal estate to his wife. 2d. He gave her a life estate in his land. 3d. He gave as follows : “ At the decease of my said wife I give, devise and bequeath to my adopted son Hiram B. B. Thurber and his heirs, all the real estate of which I may die seized, so that at my wife’s death he and his heirs shall be seized thereof in fee.” 4th. He gave some small legacies, and charged them and the support of Elsie Whitney on “ the estate hereby devised to Hiram B. B. Thurber.” 5th. In case he should survive his wife, he gave all his estate, real and personal, “ to my said adopted son Hiram B. B. Thurber and his heirs,” subject to said charges.

Hiram B. B. Thurber died in 1851, leaving ten children, of whom plaintiff is one. Kelsey T. Thurber died in 1857. His heirs at law are the descendants of four sisters, who are parties to ■) this action. Hiram B. B. Thurber was no blood relation to Kelsey T. Thurber.

The heirs at law of Kelsey T. Thurber claim that the devise to Hiram B. B. Thurber lapsed by his death before the testator. The plaintiff claims that it did not. The Special Term held that the words, and his heirs,” meant “ and his children; ” that they were intended to designate the ten children of Hiram B. B, Thurber, then living, and to vest an estate in them as a class with their father. And the Special Term held the devise did not lapse by the death of Hiram B. B. Thurber, but that it vested in his children, and that the heirs of the testator took nothing.

There is no evidence what children of Hiram B. B. Thurber were living when the will was executed. One of his children died before the testator. Hiram B. B. Thurber was not a descendant of the testator. There is no question, then, that the devise was not prevented from lapsing by the statute. (2 R. S., [m. p.] 66, § 47; Van Beuren v. Dash, 30 N. Y., 393.)

The common mode of expressing a devise,. or a grant in fee, whether it be a fee simple, or a fee in remainder, is to devise or grant to A and his heirs. It was by statute that the use of' the word “ heirs ” became unnecessary. (1 R. S., [m. p.] 748, § 1; Vanderzee v. Vanderzee, 36 N. Y., 231.)

If Hiram B. B. Thurber had survived the testator, it does not seem to me that any one would have doubted that he took a fee in remainder after the widow. In the case of his thus surviving, it would have been, as I think, impossible to hold that he and his ten children took an estate in common in the remainder. It is true that in this view of the case, the words, “ and his heirs,” are surplusage. But the experience of every lawyer tells him that their use is more common than their disuse, when a fee is to be devised or conveyed. And this is especially true when the draughtsman’s experience goes back of the Revised Statutes. There are cases in which a testator has plainly used the word heirs ” with the meaning of children. But they are cases very different from the present.

In Bundy v. Bundy (38 N. Y., 410), the devise was' to C, “ and in ease the said 0 should die without heirs,” then to certain persons. And the question was, whether the testator probably meant lineal heirs, or collateral as well as lineal. And it was held that he meant lineal heirs or descendants. And the reason given was, that, in another similar clause in the will, the devise over was to the collateral heirs of the devisee; and they could not therefore have been intended by the words, “ die without heirs.”

In Vannorsdall v. Van Deventer (51 Barb., 137), a testator devised to the legal heirs of A, deceased,” and, in a subsequent clause, “ to the heirs of Y. D.” Y. D. was living, and it was held that the devise was to his children.

In Taggart v. Murray (53 N. Y., 233), the devise was to C, and at her death to pass to her heirs, and if she leaves no heirs,” to be disposed of by her will. It was held that heirs meant issue. It was not to be supposed that the devisee’s power over the property depended on the remote contingency of the extinction of heritable blood.

This is not a case which is aided by the abolishment of the rule ■ in Shelley’s case. (1 B. S., [m. p.] 725, § 28.) It cannot be claimed that (after the life estate of the widow), a life estate was given to Hiram B. B. Thurber, and the remainder to his heirs. There is nothing to indicate this. And, indeed, the Special Term did not take that view, but held the devise to be to Hiram B. B. Thurber and his children, as tenants in common. It seems to me that such an intention, by which Hiram B. B. Thurber and each of his children were to have one twenty-second part of a farm of about 170 acres, could not have been in the mind of Kelsey T. Thurber. It would have been so strange a disposition of the land, that, if it had been adopted by him, he .would have expressed it unmistakably.

But I do not think that this question is material in the disposition of this case. The property has been sold. The avails of the half of the real estate which passed by the will are only $2,282.29. It is found by the referee that the value of the support of Elsie Whitney was $3,416.43. The plaintiff supported her; and her support was a charge on the land; and, on a fair construction, it was a charge on the remainder, after the estate of the widow. I think he is equitably entitled to be paid from the avails, as a quasi assignee of Elsie. There remains nothing therefore for the appellants.

An important question of practice has arisen in this case. The action is for partition, and for the enforcement of the equitable claim of the plaintiff to be repaid for his support of Elsie Whitney. Partition was equally an equity, as a common-law proceeding (2 R. S., [m. p.] 329, § 93, from the Laws of 1813); and the claim to enforce the plaintiff’s lien was properly equitable. Issues therefore were triable by the court, and the parties had no right to a jury trial. (Code, 254; McCarty v. Edwards, 24 How., 236.) In this present case there were some issues, perhaps not very important, and some defendants, absentees, were in default. The proper course, therefore, as to the absent defendants, was a reference under Rules 79 and 80. As to the issues, by consent of parties, the referee was to take proof of the respective parties, and to report with his findings of fact.

By reference to section 254, it will be seen, that, in equity cases, the court may order the issue, or any question of fact, to be tried by a jury. This is a practice corresponding to the old feigned issue in chancery. Or the court may refer, as provided in sections 270, 271. Section 271 provides for compulsory references, where an account is involved, and is not of general application. Section 270 provides for references by consent. Therefore, in an equity action, the court, by consent of parties, instead of the feigned issue to* be tried by a jury, may order a reference. It is a reasonable construction then, that the effect of the referee’s report in such a case — that is, where he is to report the proof with his findings,, in an equity action — should be substantially the same with that of a verdict of a jury in a similar action.

What, then, was the effect of a verdict, on a feigned issue out of chancery? It was simply to assist the chancellor’s conscience. “ The jury and the verdict are things which the court may use or let alone as it sees good.” (Lansing v. Russell, 2 N. Y., 563 ; Marvin v. Marvin, 4 Keyes, 9; Armstrong v. Armstrong, 3 My. & K., 45.)

In the present case, therefore, although it may not have been strictly right to “ strike out ” a part of the referee’s report, yet I think that the judge at the Special Term was authorized to form his own conclusions of fact and of law upon the evidence, using the referee’s report as only advisory. (Moore v. Metrop. Bank, 55 N. Y., 41; Brinkley v. Brinkley, 56 id., 192.) And the appeal to the court comes up from the conclusions of fact and of law found by the judge at Special Term, and not from the referee’s report. The judgment should be affirmed.

Present — Learned, P. J., and Boardman, J.

Judgment affirmed, with costs.


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    JACOB CLEARWATER, Jr., Plaintiff, v. CYRENIUS F. BRILL, Defendant.

      Execution — when constable bound to execute it — Proof of judgment not requwedin action for wrongful taking of goods levied on.

    A constable, having an execution valid on its face, and issuing from a competent authority, is bound to execute it, even if he have knowledge of facts rendering the execution void.
    A constable, being in actual possession of goods by virtue of executions valid on their face, is not bound, in order to maintain an action against a stranger for taking the goods, to prove the judgment. Proof of the execution is sufficient.

      Earl v. Camp (16 Wend., 562) explained.
    This case came before the General Term, under an order made at the Ulster Circuit, directing a verdict for the plaintiff, subject to the opinion of this court. The action was for the wrongful taking from the plaintiff, a constable, certain personal property, held by him under certain executions issued by a justice of the peace against one Dolson. The defendant, the sheriff of Ulster county, avers that he took the same by virtue of an attachment in the Supreme Court against the same Dolson. On the trial the plaintiff gave in evidence five executions against Dolson, issued by a justice of the peace, and also proved the taking of the property by the defendant, and rested. ' The defendant gave in evidence the attachment issued in the Supreme Court against Dolson, and the plaintiff gave in evidence the affidavits on which it was obtained, to show its invalidity. The defendant also gave in evidence the affidavits and proceedings and judgments under which the executions in the Justice’s Court were issued, in order to show the invalidity of the executions. It was admitted that the defendant took the property by virtue of the attachment. There was no dispute as to value, and, as the case presented only questions of law, the court directed a verdict for the plaintiff, subject to the opinion of the court at General Term.

      F. L. Westbrook, for the plaintiff.
    The motion for nonsuit was properly denied. The plaintiff, having not only levied on the property, but having taken and being in the actual possession of it, was not required, in order to maintain this action, to prove a valid judgment. (Baker v. Miller, 6 Johns., 195; Spoor v. Harlow, 8 Wend., 445 ; Earl v. Camp, 16 id., 569 ; Johnson v. Carnley, 6 Seld., 577, 578.) The justice was sufficiently satisfied of the facts to issue his warrant, and third parties cannot attack it collaterally. (Bascom v. Smith, 31 N. Y., 605 ; Van Alstyne v. Erwine, 1 Kern., 340; Reinmiller v. Skidmore, 7 Lans., 164.) Besides, the defendant was a stranger to those proceedings, and therefore cannot question their validity. (Moore v. Graves, 3 N. H., 413 ; Isham v. Ketcham, 46 Barb., 43; Van Arsdale v. Krom, 9 Mo., 397.) The rule is well settled that property, having been taken into possession by one officer, by levy under attachment or execution, cannot be taken from him by another officer under another attachment or execution, and such second taking is void, and subjects such second officer to suit for value of property at instance of the the officer who made first levy. (Freeman v. Howe, 24 How. [U. S.], 450 ; Moore v. Graves, 3 N. H., 414; Vinton v. Bradford, 13 Mass., 114; Robinson v. Ensign, 6 Gray, 300; Thompson v. March, 14 Mass., 269; Benson v. Berry, 55 Barb., 620.) The defendant’s remedy, or that of Freer and Hasbrouek, whom he represented, was not by levy on property already in legal custody and taking it out of such custody, but by action to remove the alleged illegal or inequitable obstruction in the way of his levying on and selling the property in question, or to reach its proceeds if it had been sold. (McElwain v. Willis, 9 Wend., 548, 561; Bank v. Dakin, 51 N. Y., 519; Crippen v. Hudson, 3 Kern., 166; McCartney v. Bostwick, 32 N. Y., 59 ; Code, § 232; Kelly v. Lane, 42 Barb., 607; 2 R. S. [Edm. ed.], 4, 5, § 8.)

      M. Schoonmaker, for the defendant.
   Learned, P. J.:

It is important to notice that, at the time of the alleged wrongful taking of this property by the defendant, the plaintiff had actual possession of it, by virtue of five executions, each of which was valid on its face. Whatever may have been the irregularity or imperfection of the proceedings before the justice, the constable, having these executions, valid on their face, and issuing from a competent authority, was bound to execute them, and to take the property of Dolson (Savacool v. Boughton, 5 Wend., 170), even if he had known the facts alleged to render the proceedings void. (People v. Warren, 5 Hill, 440.) Being thus in the actual possession, by virtue of executions valid on their face, the plaintiff, in order to maintain an action against a stranger for taking the goods, was not obliged to prove the judgment. Proof of the execution was sufficient. (Spoor v. Holland, 8 Wend., 445.) And, therefore, as against a stranger who takes the goods from the constable’s actual possession, the validity of the judgment is not necessary to the action. (Barker v. Miller, 6 Johns., 195; Blackley v. Sheldon, 7 id., 32 ; Coon v. Congden, 12 Wend., 496).

This matter is examined in the case of Earl v. Camp (16 Wend., 562). In that case it is said, in general words, that the rule protecting an officer who acts under an execution valid on its face, is one of protection merely; that he is not to be sustained and protected in whatever actions he may bring. But it will be found, upon an examination of that case, that no actual possession was taken by the plaintiff. “ He seems to have rested his title on his own return to void process.” The ground of the action seems to have been the alleged lien, acquired by the process in the hands of the officer; and the court says: “I am aware, all this time, that the case might have been differed, by showing an actual prior possession in the plaintiff.” So that nothing therein decided affects the force of the rule above stated, which is also laid down in Parker v. Walrod (16 Wend., 514).

If, then, the plaintiff, by virtue of these executions, |vas bound to levy on property of Dolson, and to take theusame ifito his possession, it seems to follow that, when he has done this, and is in actual possession, he may maintain an action against any one who takes the property from him, unless such person shows a better title. In order then for the plaintiff in the first place to show a right to recover, it was not necessary for him. to prove the proceedings before the justice and the judgment. The question then ailses, does the defendant stand in such a position that he is entitled, as against the plaintiff, to show that the proceedings before the justice were void for the insufficiency of the papers ? It is not pretended that these proceedings were fraudulent as against other creditors. There is nothing to show that they were not taken in good faith. Dolson, against whom the proceedings were had, makes no complaint. If he does not, why should the defendant ?

In Isham v. Ketchum (46 Barb., 43), it was held by the General Term, that a subsequent attachment creditor could not move to set aside a prior attachment on the ground that it was irregularly issued; and the reason given is, that “ if the defendant in the action choose to waive such irregularity, and thus in effect secure the payment of the debts on which the first actions were brought, what had the plaintiff in the last two actions to do with that.”

It is true that in that case the attachments spoken of were issued under the Code in an action. Therefore the court speak of the attachments being irregular, and not of their being void. But the general principle is affirmed, that the subsequent attaching creditor cannot take advantage of defects which would be fatal as against the debtor. So in Bascom v. Smith (31 N. Y., 595), in speaking of an affidavit in a case similar to the present, an affidavit plainly insufficient, the court say: “ As against third parties the affidavit is sufficient to sustain the jurisdiction of the justice.” By this qualification it is implied that an affidavit which would not give jurisdiction as against the defendant in the proceedings, may be sufficient as against others. In Clapp v. Graves (26 N. Y., 418) there is an attempt to distinguish between an irregularity and a nullity; and it is said that if the party can waive the objection, it amounts to an irregularity; if he cannot, it is a nullity. There would be no doubt that if Dolson had appeared on the return day of the attachment and answered without objection, he would have waived the defect. (Stevens v. Benton, 2 Lans., 156; Malone v. Clark, 2 Hill, 657.) In this view of the case there is nothing to conflict with the doctrine, that, on a question as to the title of the property in question, between a purchaser at the constable’s sale and Dolson himself, the sufficiency of the affidavits to give jurisdiction might be raised. The difference between that case and the present is, that the defendant here is not authorized to put himself in Dolson’s place, and to say that the defects in the affidavits shall not be waived. He does not represent Dolson, but other creditors of Dolson.

The case of Rinchey v. Stryker (28 N. Y., 45) is not in conflict with these views. That only holds that a sheriff, who has attached goods, may show that the title of a plaintiff, claiming by assignment from the defendant in the attachment, is fraudulent as^against the attaching creditor. That decision belongs .to an entirely different class of cases from the present..

There is another point in this.case, and that is, that, inasmuch as the property was in the hands of an officer by levy under execution, no other officer has a right to take it away, although he may levy. (Benson v. Berry, 55 Barb., 620; Freeman v. Howe, 24 How. [U. S.], 450; Peck v. Jenness, 7 id., 624.) This seems to be a wise principle to prevent confusion or unseemly strife. But without passing on this point, we prefer to rest our decision on the other ground, that the defendant, as an officer with attachments against Dolson, had not a right to show, as against the plaintiff, who was in actual possession of the goods by virtue of executions against Dolson, that the affidavits on which the proceedings were based were defective, although the defect was such that Dolson might claim that the proceedings were void.

The plaintiff must have judgment on the verdict.

Present—Learned, P. J., Boardman and James, JJ.

Judgment ordered for plaintiff on the verdict, with costs.


text:
    SARAH C. HAYES, Respondent, v. MICHAEL PHELAN, Appellant.

      Laws of 1873, chap. 646—when action lies under, against vendor of intoxicatinq liguor.

    A complaint, alleging that the death of plaintiff’s husband was caused by intoxication, caused by liquors sold to him by defendant, and that by his death plaintiff had sustained damages, in being deprived of the companionship of her husband and of the customary support and maintenance of herself and children, does not state a cause of action under chapter 646 of the Laws of 1873.
    The meaning of the statute is to throw the responsibility for injurious acts of an intoxicated person on the vendor or giver of the intoxicating liquor, but not to make him liable for all results arising from the sale or gift of the liquor.
    A right of action exists against the vendor or giver of the liquor only in cases where it lies also against the intoxicated person.
    A statute should receive a strict construction, which imposes a liability for injuries indirectly, if at all, occasioned by an act which is not forbidden by law.
    Appeal from an order overruling a demurrer to the complaint.

      A. Schoonmaker, Jr., for the appellant.
    It is a fundamental rule of law that no person is liable.in damages for the necessary or natural consequences of a lawful act. (Radcliff's Executors v. Mayor, etc., 4 Comst., 185; Bellinger v. N. Y. C. R. R. Co., 23 N. Y., 42, 47; Selden v. Del. and Hud. Canal Co., 29 id., 634, 642; Kellinger v. Forty-second St. R. R. Co., 50 id., 206, 210; Townsend v. N. Y. C. R. R. Co., 56 id., 295.) There is no allegation that the earnings of the deceased were applied by him to the support of his wife, nor that the plaintiff had any title to such earnings, nor that if plaintiff had lived he would have earned anything, or that such conjectural earnings would have belonged to the wife, or have been applied to her support; nor is the amount or nature of his earnings anywhere alleged. (Schneider v. Hosier, 21 Ohio, 98.) The complaint does not show where the sale of liquor was made; whether in the State of New York or out of it. This is a jurisdictional fact and must affirmatively appear. (Beach v. Bay State Co., 30 Barb., 433; Whitfields v. Panama R. R. Co., 23 N. Y., 465.) The act does not contemplate nor create a cause of action founded on the death of any of the persons named therein. The act is in derogation of the common law, and must be strictly construed. (Freese v. Tripp, Chic. Leg. News, Aug. 1, 1874; cited 5 N. Y. S. C., 105.) The damages claimed as the result of plaintiff’s husband’s death are of two kinds: 1. Loss of companionship and society, and the grief and distress of mind thus produced. 2. Loss of means of support. The. first class of damages finds no sort of warrant in the statute, and has been adjudged not to be recoverable in the Illinois case, before cited, of Freese v. Tripp. The second class — “ means of support ” — the statute provides for. What is meant by this phrase ? The plaintiff says, the earnings of the husband, and must maintain that proposition. In Ohio such a loose construction has been approved. (Schneider v. Hosier, 21 Ohio, 98.) But in the State of New York no such transcendental and socialistic construction can be sanctioned. The act cannot be presumed to contemplate damages under' this description, which have no foundation in common sense or in law. By “means of support” the act can only refer to something which belongs to the party thus injured, or to which he is entitled by law; which he can control and sue for in an ordinary action. The husband’s earnings do not belong to the wife in any legal sense. (Kilburn v. Coe, 48 How. Pr., 144-147 ; 3 R. S. [5th ed.], 746, § 1; Nash v. Russell, 5 Barb., 556.) The fact that under certain circumstances the husband may be compelled to support his wife does not help the case. That gives her no title to his property. (Tilley v. The Hud. R. R. R. Co., 24 N. Y., 471.)

      M. Schoonmaker, for the respondent.
    The relation of wife ; the dependence upon her husband for support; the sale of liquor by defendant; intoxication caused thereby; death caused by such intoxication, and injury to her means of support resulting therefrom, are all alleged and plainly stated in the complaint. Such statement covers all the grounds specified in the statute as necessary for the maintenance of the action. It is not necessary that the sale of liquor should be alleged in the complaint to be an illegal sale. (Baker v. Pope, 5 N. Y. S. C., 103.) The statute is applicable, and the right of action thereunder accrues to the wife in a case such as this, where death is the result of the intoxication, and is not confined to cases where an injury has been received not producing death. The statute makes no such restriction; the cause of action is given for the damages sustained by reason of the intoxication. The statute expressly provides and sets up the deprivation of support and maintenance as a cause of action in behalf of the wife, and we allege such injury.
   Learned, P. J.:

The substance of the complaint is, that Andrew B. Hayes, the plaintiff’s husband, died early in the morning of July 5, 1874; that he was intoxicated in the evening and night of July fourth ; that his death “ was occasioned or caused in whole or in part by such intoxication; ” that the defendant, by the sale and delivery to said Hayes, on the evening or night of July fourth, of intoxicating liquors, caused, in whole or in part, such intoxication; that by means of such death plaintiff has sustained damages, in being deprived of the companionship of her husband, and of the customary support and maintenance of herself and children.

This is a statutory action, under Laws of 1873, chapter 646. No injury to person or property is alleged. No injury by an intoxicated person is alleged. Deprivation of companionship is not by the statute a ground of action. The claim here must be that, by the death of the husband, a wife is “injured in means of support.” Condensing the language of the statute (as it is claimed to be applicable to this case), we have : Every person who shall be injured in means of support, in consequence of the intoxication of any person, shall have a right of action against any person who shall, by selling or giving away intoxicating liquors, cause the intoxication, in whole or in part, of such person. The statute has been held by this court to be constitutional. (Baker v. Pope, 5 N. Y. S. C., 102.) It does not make the liability to depend on the unlawfulness of the sale. And no statute has declared giving away liquor to be unlawful. It follows, therefore, that, by this statute, the man who has done a lawful act, is required to pay damages for injuries which are not even caused thereby. This peculiarity is still more striking, in that the owner of the building in which the liquor is sold, is made liable for these injuries. It may at least be said that this statute is in derogation of common law, and should be construed strictly. Any statute should receive a strict construction, which imposes a liability for injuries indirectly, if at all, occasioned by an act which is not forbidden by law. The question here is not whether a cause of action, arising during the life of the husband, would be lost by his death. The death is the alleged injury. No previofis loss of means of support is alleged. None could have occurred. The complaint says, that by means of such death, etc., this plaintiff hath sustained,” etc. We have a statutory provision, giving a right of action in the case of death by wrongful act. (Laws 1847, chap. 256.) That act and the amendments thereto provide who shall have such right of action, and its extent, and for whose benefit. That action must be brought by the personal representatives, and must be based on a wrong committed. If the present action will lie, three more like it (one for each child) may be brought; there is no limit to the amount of recovery; and the defendant is liable, although he has done nothing unlawful. It should need unmistakable language in the statute to justify this result. The statute says that every person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication of any person, shall, etc. Now, certainly, to be injured in person by an intoxicated person, or in consequence of the intoxication of any person, implies that a wrongful act is done to the party suffering the injury. So, too, injury in property implies that a wrongful act is doue in respect to the property. Mere loss of property, unaccompanied by any wrongful act, cannot come under the head of injury. One who can be said to be injured in person or property by an intoxicated person, must then be one who has a right of action therefor against such intoxicated person. So, too, one who is injured in person or property, in consequence of the intoxication of a person, must be one who has a right of action therefor against such person. Otherwise, the loss sustained would be what is called danmum absque injuria. The same meaning, too, must apply to the expression, injured in means of support by an intoxicated person, or in consequence of the intoxication of a person. That is to say, one who can be said to be injured in means of support by an intoxicated person, is one who has a right of action against such person for such injury. And one who is injured in means of support, in consequence of the intoxication of a person, is one who has a right of action therefor against such person.

What then is the meaning of the statute ? This: It is intended to throw the responsibility for injurious acts back to what is considered to be the original cause. It seeks to make the vendor or giver responsible for the injurious acts of the intoxicated person. In other words, the remote cause, that is, the vendor or the giver, is declared to be liable to make compensation for injuries, for which, previously, the proximate cause only, that is, the intoxicated person, was responsible. The statute was not intended to make those acts “ injuries,” which had previously not been such, but it intended to fasten the responsibility for these injuries on the vendor or giver of the liquor, instead of leaving it solely on the intoxicated man.

Thus, the kind of acts for which a right of action exists is not increased. Only there is an increase of the persons against whom the actions may be brought. Therefore, the statute, without specifying in detail for what acts of an intoxicated person, or for what acts done in consequence of intoxication, the vendor or giver is liable, says that when a person is “ injured ” (meaning by this when he has suffered a wrongful act, or one for which he might have maintained an action against the doer), then the sufferer may go back of the doer of the act, and may seek redress from the vendor whose sale of liquor was the remote cause. If this be not the correct meaning of the statute — if the phrase, injured in person or property or means of support is not to be construed to mean such loss as, aside from the statute, is caused by wrongful acts — then the statute is utterly vague. This construction appears to be in harmony with the ideas which led to the passage of the statute. It was seen that intoxicated men often committed great wrongs for which they were utterly unable pecuniarily to respond, and that great injury was often occasioned in consequence of their intoxication, which they could not make good in damages. And it was thought reasonable that the vendor who sold, as well as the drunkard who drank, should be liable to an action for what were “ injuries ” in the legal sense. We take, then, the word “injured ” to imply a wrong, in the legal sense of the word, done by the intoxicated person, or done in consequence of intoxication: and in that sense this plaintiff has not been injured. “ The parent cannot, at common law, recover for the loss of the services of his child, nor the wife or child for the loss of the care, support and nurture of the husband or father, where the death has been brought about by the act of another, whether negligent or willful.” Green v. Hudson R. R. R. Co. (2 Keyes, 294; S. C., 28 Barb., 9), where the court say: “The mere death of a human being cannot be complained of as a civil injury, to be compensated in damages.” If, then, the plaintiff’s husband, being sober, had been killed by a-person who was intoxicated, the plaintiff would have had no right of action for such death against that intoxicated person. Would it be reasonable to construe the statute that, although she had no right of action against the intoxicated person for the loss, yet she has such an action against the vendor who sold the liquor which remotely caused the loss ? The death of the plaintiff’s, husband was not, therefore, a civil injury.' And this statute makes the vendor and giver 'of liquor liable only for civil injuries caused, or supposed to he caused, remotely by the sale or giving away by them of liquors.

It is not, probably, necessary to pass on the question, whether in any case the wages of a husband can be said to be the wife’s means of support, in the sense that they belong to her, and that a diminution thereof gives her a right of action. That view was taken in Schneider v. Hosier (21 Ohio St., 98), where the court held that, as the husband was morally and legally bound to support his wife, she had a pecuniary interest in his resources. That reasoning, if carried out consistently, would seem to result in the doctrine" that the wife had an interest in the property of the husband, so that she could maintain an action for injury to his property. For he is bound to support her as much out of his property as out of his wages. It would seem also to result in the further doctrine that a creditor was injured in “means of support” by the intoxication of a debtor. For the debtor is as much legally and morally bound to pay his creditor as to support his wife. But, without passing on that question, for the reasons given above, the demurrer should be sustained.

Present — Learned, P. J., Boardman and James, JJ.

Order overruling demurrer reversed, with fen dollars costs, and demurrer sustained, with leave to plaintiff to amend on usual terms.