text:
    ELIZA MICKLES, Respondent, v. HENRY A. DILLAYE, Appellant.

      Mortgage — merged when purchased by one who has conveyed with wawanty — . Foreclosure by advertisement — effect of failure to set've owner of equity of redemption.

    One Mickles conveyed land owned by him, by a deed, in which his wife did not ■ join,-containing covenants of warranty, and not subject, by its terms, to any mortgage. Subsequently, he purchased a mortgage existing thereon at the time of his conveyance, which mortgage he subsequently conveyed to one Townsend, who foreclosed the same by advertisement, no notice being served upon the then owner of the equity of redemption.

      Seld, that by the assignment of the mortgage to Mickles, after his conveyance with warranty, the same was extinguished and discharged, both as to his . grantee and as to his wife, then a tenant in dower initiate.

      Quaere, whether a foreclosure by advertisement, in which no notice is served upon the owner of the equity of redemption, is not a mere nullity as to all parties to the proceedings.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court at a Special Term and Circuit held in Onondaga county.

      Irving G. Vann, for the appellant.
    The foreclosure is valid as to those served with,notice, and as to those only. (Ilubbelly. Sibley, 5 Lans., 51; King v. JDuntry, 11 Barb., 191, 193; Robinson v. Ryan, 25 N. Y., 321; St. John v. Bumstead, 17 Barb., 100, 102; Benedict v. Gilman, 4 Paige, 58; Rooty. Wheeler, 12 Abb. Pr., 294; Crary on Special Proceedings, vol. 1, p. 243; Welm,ore v. Roberts, 10 Iiow., 51.) So it has been hold that, whore a mortgage was given by a person under the age required by the statute providing for the foreclosure of mortgages by advertisement, only the mortgagor could object that the statute foreclosure was irregular, and that the right to object was a personal privilege confined to him alone. (Ingraham y. Baldwin, 12 Barb., 9; affirmed in 5 Seld., 45.) See as to the effect of a foreclosure upon the rights of the parties who were served with notice. (Jackson v. Iloffman, 9 Cow-, 271; Braclcetty. Baum, 50 N. Y., 8; Warner <@ Co. v. Bliheman <& Go., 36 Barb., 501; Mitchell y. Mount, 31 N. Y., 356; Burkheady. Browne, 5 Sanclf., 134; Groff v. Morehouse, 51 N. Y., 503; Vandercamjp Shelton, 11 Paige, 28; Robinson v. Ryan, 25 N. Y., 320; Jackson v. Bowen, 7 Cow., 13; Vroom v. Bilmas, 5 Paige, 526.)
    IP. /A Gifford, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment ordered by one of the justices of this court, on a trial at a Special Term and Circuit in Onondaga county, a jury being waived by stipulation.

The action is brought by the respondent to recover dower as the widow of Philo D. Mickles, deceased, in lot No. 4 of block No. 10, in the city of Syracuse, which the said Philo D. Mickles conveyed while the respondent was his wife, she not having joined in the conveyance.

The conveyance of the husband was to Lovel G. Mickles, with a covenant of warranty, and was made on the 23d day of September, 1840, and was not, in terms, subject to any mortgage..

The defendant, Henry A. Dillaye, claims title to the premises under the following circumstances:

On the 4th of February, 1836, one David Hall was seized of the premises, and on that day conveyed to one George S. Fitch, Fitch executing back to said Hall a mortgage for the purchase-money, and the premises passed by a regular chain of conveyances down to the said Lovel G. Mickles. On the 23d day of September, 1843, and after the conveyance of the premises to Lovel G. Mickles, the said David Hall assigned the mortgage executed by Fitch to Philo D. Mickles, who, on the 8th of November, 1843, assigned the same to John Townsend. In 1846 proceedings were commenced in the name of said John Townsend, under the power of sale contained in the said mortgage, for a statutory foreclosure of the said mortgage given to Hall, notices of which foreclosure were served upon Philo D. Mickles and upon the respondent, his wife, and upon all the other parties who were by the statute entitled to notice as required by statute, except upon said Lovel G. Mickles, then the owner of the equity of redemption, upon whom no notice was served. And in pursuance of said proceedings for the statutory foreclosure of the said mortgage, on the. 23d day of September, 1846, the premises were sold to Charles A. Wheaton. On the 29th day of December, 1846, Challes A. Wheaton conveyed the premises to John A. Robinson. On the 19th day of November, 1852, John A. Robinson conveyed the premises to Henry A. Dillaye ■ the defendant and appellant, with warranty.

On the 23d of October, 1853, Lovel G. Mieiues commenced an action in the Supreme Court against John Townsend, Henry A.. Dillaye,- Charles-A. Wheaton, John A. Robinson, and James E. Heron, president of the Syracuse City Bank. The plaintiff in that action claimed'that by the purchase of Philo D. Mickles of the Hall mortgage, and-the assignment thereof to him, the said mortgage, was merged, extinguished, and discharged. Neither the respondent; nor Philo D. Mickles, her husband, were parties to that suit, and such proceedings were thereupon had that it was adjudged in the said action, that the said Hall mortgage became and was extinguished on the assignment thereof to the said Philo D. Mickles, and' that the said Charles A. Wheaton acquired no title to or interest in the said premises by the said statutory foreclosure thereof, and the sale to him upon such foreclosure, but that said foreclosure and sale were void. (See Mickles v. Townsend, 18 N. Y., 575.)

On the 8th day of March, 1841, Lovel G. Mickles gaveamortgage to Philo D. Mickles for partof the purchase-price of the said premises for-$2,000; and-on the 5th day of February, 1854, the said Henry A. Dillaye, the defendant and appellant herein, being then in the possession-of the said,premises under color of'the said foreclosure of, and sale under the Hall mortgage, and the conveyance by Wlieafon, the purehaser at the foreclosure sale, to John A. Robinson, and by said Robinson to said Dillaye, the said Lovel G. Mickles, as plaintiff, commenced an action in this court against Charles A. Wheaton, John A. Robinson, John Townsend, James E. Heron, and this defendant, Henry A. Dillaye, to redeem said premises from the mortgage given by Lovel G. Mickles to Philo D. Mickles ; and in that action, commenced on the 5th day of February, 1854, it was adjudged that the defendants therein successively took and held possession of said premises as mortgagees in possession under the mortgage made by Lovel G. Mickles to Philo D. Mickles ; that the said Lovel G. Mickles was the legal owner of the premises, subject to the lien of his mortgage to Philo I). Mickles, and that the said Lovel G. Mickles should pay to Henry A. Dillayo to redeem from his mortgage the sum of $1,885.99 within sixty days from December 1st, 1864 ; and in case he failed to do so, the complaint be. dismissed, which said judgment was afterwards modified by the Court of Appeals so as to require an allowance to Dillaye for certain improvements upon the premises, fixing: $4,000 as the amount to be paid to Dillaye on redemption, and limiting a time within which redemption should be made. (See Mickles v. Dillaye, 17 N. Y., 80.)

The said Lovel G. Mickles failed to redeem within the time fixed by the decree in the last, mentioned suit by the Court of Appeals, whereby the title of Lovel G. Mickles was foreclosed and passed to Henry A. Dillayo, who had been in the possession of said premises since November 19, 1852, the date of the conveyance by Johu A. Eobinson’s deed to said Dillaye. All the conveyances from George S. Pitch, the maker of the Hall mortgage, down to Lovel G. Mickles were with warranty, and the conveyance to Philo D. Mickles was not, in terms, subject to the Hall mortgage.

Philo D. Mickles, the husband of the plaintiff, died in April, 1874. On the 30th, day of April, 1874, the plaintiff demanded an assignment of her dower in the promises of the defendant which -was refused by him, he, being then seized of the said pro. mises under the .title derived as aforesaid.

On the 18th day of July, 1862, after the time for redemption under the decree as modified by the Court of Appeals had elapsed, the said Lovel G. Mickles convoyed the premises by quit-claim deed, to II. Ten Eyck Bobinson and others, sole heirs-at-law of the said. John A. Bobinson, who had died intestate; so that the title, whatever it was, remaining in Lovel G. Mickles, and which passed by the quit-claim deed to the heirs of John A. Bobinson, enured to the benefit of said Henry A. Dillaye, by virtue of the covenant of warranty in John A. Bobinson’s deed to Dillaye.

The justice at the Circuit held, as conclusions of law: “ 1st. That the dower of Eliza Mickles is not in any manner subject to said Hall mortgage. That said mortgage became and was satisfied and discharged by said assignment thereof from said Hall to said Philo D. Mickles.

“ 2d. That said Henry A. Dillaye takes title to said lands, not under said Hall mortgage, but under said conveyance of Philo D. Mickles to Lovel G. Mickles, and is discharged and free from any lien under said Hall mortgage, under and by virtue of said decree in said action in relation thereto.

“ 3d. That said decrees have operation upon the title to said lands, and bind all persons named as parties in said actions or in privity of title with them.

“ 4th. That said Eliza Mickles is entitled to recover and charge upon said lands and the rents, issues and profits thereof, her dower therein as widow of said Philo D. Mickles, and also for withholding the same, after demanded, to be estimated and charged,” etc.

The counsel for the appellant presents two points for considcra.tion on this appeal. 1st. That the foreclosure of the Hall mortgage cut off all claims to the property in question, excepting the equity .of redemption of Lovel G. Mickles.

2d. That the two judgments in favor of Lovel G. Mickles are ■not binding upon the plaintiff, because she was not a party to either action. As they are not binding upon her, she cannot invoke their aid in her favor.

As to the first point made by the appellant, we do not deem .it necessary to discuss the effect of a foreclosure and sale, by advertisement, upon the rights of persons who are made parties, of the omission to cause a notice of the sale to be served on the owner of the equity of redemption. The statute makes a foreclosure by advertisement equivalent to a foreclosure and sale under a decree in equity, and it is by no means certain but that a foreclosure and sale under the decree of a Court Equity, to which suit the owner of the equity of redemption is not made a party, is an entire nullity. (See Matter of Howe, 1 Paige, 125.) But in this case the facts are found which show that the attempted fore, closure, by advertisement, of the Hall mortgage, and the sale thereunder to Charles A. Wheaton, under which the appellant claims title, were ineffectual and void. The statute relating to foreclosure by advertisement only authorizes the proceeding in case the mortgage contains therein ‘1 a power to the mortgagee, or any other person, to sell the mortgaged premises upon default being made upon any condition in such mortgage ;” and section two of the statute provides that, “to entitle any party to give a notice, as hereinafter prescribed, and to ■ make . such foreclosure, it shall be requisite, 1st. That some default in a condition of such mortgage shall have occurred by which the power to sell became operative.” (2 R. S. [2d ed.], 450, § 2.)

Thus it appears that the existence'and validity of the power of sale is a prerequisite to the right to-commence a foreclosure by advertisement. It is found as a.fact, "inthis case, that David Hall (the mortgagee in what has herein,been termed the Hall mortgage) assigned said mortgage to Philo D. Mickles on the 23d day of September. 1843, which was., after the .conveyance by Philo D. Mickles to Lovel G. Mickles; with warranty; and, therefore, upon the principles laid down by the Court of Appeals in Mickles v. Townsend (18 N. Y., 575), the power of sale became extinguished; and so the justice, before whom this case was tried, found that the “ said mortgage became, and was, satisfied and discharged by said assignment thereof from said Hall to said Philo D. Mickles.”'

It was held, in Cameron v. Irwin (5 Hill, 272), that a statute: foreclosure of a paid mortgage confers no title — a fortiori, then, where the mortgage and power of sale became extinct by operation of law, by reason of conveyances appearing on the records anterior to such foreclosure.

In the case of Warner v. Blakeman, in the Court of Appeals (4 Keyes, 487), Judge Woodruff, speaking of the case of Cameron v. Irwin (supra), says that case “justifies a doubt whether, under circumstances such as these, the power of sale having been extinguished by payment of the mortgage, even a bona fide purchaser would have acquired a title.”. But the case of Warner v. Blakeman was decided upon the ground that Blakjemail was not a bona fide purchaser under the statute which protects such a purchaser at a sale under a foreclosure by advertisement.

This case comes up upon the pleadings and findings, of the court, and upon the exceptions to the conclusions of law, and there is no finding that the purchaser at the foreclosure sale, or any of his grantees, were bona fide purchasers. If the mortgage ■ and. power of 'sale were satisfied and extinguished against a subsequent grantee of Philo L. Mickles, they surely must have been so as against his wife, then a tenant in-doiver initiate.

The second point made by the appellant, to wit, that “ the two . judgments in favor of Lovel G. Mickles are not binding on the plaintiff, because he was not a party to either action, and as they are not binding upon her, ¿she 'cannot invoke their aid in her favor,” admits, as it appears to us, of this short answer. The plaintiff is not under the necessity of invoking the' aid of either of these decrees in 'this action. She docs not need it to 'avoid 'the effect (if the statute foreclosure, for the reason that the p'ó'wer ' of sale having been extinguished, the said'foreclosure was void'as to her. She-does not need the aid of anything in the decree m'ado in the suit of Lovel G. Mickles v. Henry A. Dillaye and others (17 N. Y. 80), for the reason that she does not claim under that decree ; but her title as dowercss is 'prior and-paramount to the title of Lovel G. Mickles, upon which he, in that-suit, sought to redeem from his mortgage to Philo D. Mickles. The conclusion of law of the justice at the Circuit, upon this branch of the case, 'is, “that said decrees have operation upon the title to said lands, and bind all persons named as parties, in said-actions, or in privity of title with -them.” This seems to be a correct statement of an abstractiprinciple of law.

In the case of Mickles v. Townsend (18 N. Y., 575), Judge Denio quotes from Co. & Litt., 352, a (3 Thomas’ Coke, 342, m), the well established rule of the common law: '“Privies in blood,'as the heir; privies-ih estáte, 'as the foofee, lessee, etc.; privies in law, ■ comprehending those who come in by "act of law, or in the-post, shall'be bound’by, and take advantage of, án estoppel.” So it is laid down in Comyn’s Digest. Tenant in dower ór by the curtesy is bound by estoppel. (Coin. Dig., Estoppel, B.)

Though it is not 'apparent that ;thc 'learned justicevat'the Circuit made any application of-this principlefo thccáse atibar, and we do not sec any necessity for such application, the marriage • of the plaintiff, the seizin and death of'the husband, find ’the facts showing the invalidity of the foreclosure-having been found without recourse to! the judgments in -the’two-suits'which were commenced by Lovel G. Mickles, so far ' as appears, ' the ‘ conclusion that the plaintiff was entitled to recover her dower was inevitable. If the foregoing views ■ are correct, they lead to an affirmance of the judgment.

Judgment should bo affirmed, with costs.

Present — Talcott, P. J., and Smith, J.; Haedin, J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Talcott, P. J.:

license: Public Domain

text:
    JAMES CAWLEY, Respondent, v. JAMES COSTELLO, Appellant, Impleaded with JAMES CAWLEY.

      Liability of one signing a non-negotiable note before the payee signs — what must be alleged in the complaint.

    Where the payee of a non-negotiable note seeks to charge one who has indorsed the -same prior to its delivery to him, he must allege in the complaint that such person indorsed the note with intent to become liable thereon, either as maker or guarantor.

      Qumre, whether the maker and guarantor could be joined as defendants in the same action, under section 120 of the Code of Civil Procedure.
    ■Appeal from an order made at the Onondaga Special Term, overruling the demurrer of the defendant Costello to the-plaintiff’s complaint, with liberty to defendant to answer, on payment of the costs of the demurrer. The notice of appeal in this case purports to give notice of • appeal ‘ ‘ from the interlocutory judgment entered in this action.” The case, however, contains no such judgment, the oi’der overruling the demurrer being apparently the last proceeding in the case prior to the - service of the notice of appeal.

      Butterfield <& Philips, for the-appellant.
    . Beach <£• Brown, for the respondent.
   Talcott, P. J.:

This is an appeal from an order made at the Onondaga Special Term, overruling the demurrer of the defendant, Costello, to the plaintiff’s complaint.

The complaint alleges that the defendant, Cawley, made his promissory note, “whereby by the name of James Cawley, for value received, he promised to pay James Cawley, two years after date, the sum of $200, with interest, at the Syracuse Savings Bank, and procured the same to be indorsed by said James Costello,, and then and there delivered the same to the said payee, who thereupon indorsed the said note for collection, and deposited the same,” and then avers the presentation of the said note for payment, and the demand and'protest of the same, and of all which the said defendant has due notice. The defendant, James Costello, aloné appeared in the action, and demurred to the complaint, because, as to him, the complaint did not state facts sufficient to constitute a cause of action, and that he was improperly' made a party defendant.

The note set up appears to be a non-negotiable note. (1 Daniel on Negotiable Inst., 86 ; Edwards on Bills, 165.) The note not being negotiable, the writing of the name of the defendant across the' back of it is not legally an indorsement of the note. (1 Daniel on Negotiable Inst., 524 : Waterbury v. Sinclair, 16 How. Pr. R., 344 ; Richards v. Warring, 1 Keyes, 576 ; Cromwell v. Hewitt, 40 N. Y., 491.)

The complaint seeks to charge the defendant only as indorser, but-the note not being negotiable, the' defendant, Costello, can only "be made liable as maker or guarantor; and if the plaintiff seeks to charge the defendant, Costello, in either of those charac- • ters; he must aver that he wrote his name on the back of the nota with intent to become liable thereon in such character. (See cases above cited, and Allen v. Patterson, 3 Seld., 478.)

The plaintiff, in order to maintain his action, must aver that the defendant indorsed the note with intent to become liable thereon, either as maker or guarantor, and the facts necessary to maintain the action against Costello should have been averred in the complaint. (Code of Procedure, § 142, subd. 2.) Even if, in such case, the maker and guarantor be joined in the same action as defendants, under section 120 of the Code of Procedure, upon which no opinion is expressed, yet a cause of action must be sufficiently stated as against each defendant.

The complaint also shows the note to have been made by the plaintiff and indorsed by said Costello. for his accommodation ; that is, the name of the maker of the note and the plaintiff being the same, without explanation, they are presumed to be the same ■ person, and the purport of the complaint is a suit by the maker of the note against his accommodation indorser.

No suggestion was made on the argument that an appeal does not lie from the order overruling the demurrer ; nor was the attention of the court called to the provisions of the Code on the subject of appeals from orders overruling a demurrer. The notice of appeal purports to be from an interlocutory judgment, though it docs not appear that one was entered, no point being made on the subject it will be presumed.

The order of the Special Term must therefore be reversed, with leave to the plaintiff to amend within twenty days after service of a copy of the order, on payment of costs.

Order of Special Term overruling the demurrer reversed, with leave to the plaintiff to amend within twenty days after service of a copy of the order, and on payment of costs.

Present — Talcott, P. J., Smith and Hardin, JJ.

■Ordered accordingly.


author: TaLcott, P. J. :

text:
    ALLEN BENEDICT, Appellant, v. S. MILLER BENEDICT and KATE BENEDICT, his wife, Respondents.

      Damages on undertaking for injunction — Code, § 222 — when motion premature.
    .In this action brought by the plaintiff to compel the specific performance of a verbal agreement by -which the defendant agreed to reconvey a farm and the personal property thereon to the plaintiff, from whom he had purchased it, but for which he had failed to pay the purchase-price, two preliminary injunctions were granted restraining defendant from incumbering the place or col-lee'ting the rents. Upon the trial the referee decided that the agreement was void, but held that plaintiff had. a vendor’s lien on the land, which he directed to be foreclosed and ordered a sale, as in cáse of a riiortgkge, making no reference or direction as to the injunctions.
    In an 'Application against the sCtretieh to the Undéñfcakitrgk giVen'oñ Obtaining the preliihinary injunctions, for a "reference to ascertain the damages sustained thereby, held, that the judgment did not decide that plaintiff was riot entitled to ’the "iñjúñfitions, as it was required that 'it should by the ’undertakings and 'byfoeoti&n 222 'of the Code, atiil thkt the‘mistión should bé denied.
    Appeal from an order, made at a Special Term ’in Oiieida coifnty, appointing a referee to assess and 'ascertain the damages Which defendant, S. M. Benedict, had sustained 'by reason of two •preliminaiy hijUn'etronis (granted 'in this 'actión.

      'üofnelms E. Stephens, 'for the 'appellant.

      O. D. Adams, for the respondents.
   TaLcott, P. J. :

This is an appeal from an order made at the Special Termifi Oneida county, directing "a reference to ascertain the damages sustained by the defendant, by reason of two certain injunctions issued in this action; the first of which injunctions restrained the defendant from selling or incumbering any of the real estate or personal property described in the complaint in the action, and the second of which injunctions restrained the defendant from selling or mortgaging any of the crops raised during the year 1876, on two certain farms in tire complaint described, and from collecting the rents of the farm known as the Salmon farm during the pendency of the suit.

The action was commenced to compel a-specific performance of a parol contract between the plaintiff and the defendant, S. Miller Benedict, by which the latter agreed to recohvey to the plaintiff certain farms in Lewis county with certain -personal property thereon, which the plaintiff had then recently conveyed to the defendant, S. Miller Benedict, but for which the defendant had never paid the purchase-money.

The action was referred to a referee to hear, try and determine. The referee, after hearing the proofs and allegations of the parties, made a report in which, he found the fact of the verbiil contract between the plaintiff and the defendant, but held the same void under the Statute of Frauds, and therefore refused to decree a specific performance thereof, but held that the plaintiff had a lion on the real and personal property described in the complaint, for the unpaid balance of the purchase-money on the sale thereof from the plaintiff to the defendant, and ordered a foreclosure and saló thereof, as upon a mortgage from the defendant to the plaintiff, but ruled and decided nothing whatsoever in terms concerning the said injunctions, or either of them. And the judgment that was entered in the action upon the. order and .pursuant to the report of the referee, does not in any manner refer to the said injunctions', or either of them.

The security upon the granting of the injunctions was given under section 222 of the Code of Procedure, and is conditioned, ■ as required by that section, to pay such damages, not exceeding the amount specified therein, as the defendant may sustain by reason of the injunction, “ if the court shall finally decide that the plaintiff was not entitled thereto

No such decision has yet been made, nor does it necessarily follow from anything stated in the judgment, that “ the plaintiff was not entitled thereto.” Wo think, therefore, that the motion was at least premature. Non constat, that the referee thought or would have held that the plaintiff was not entitled to the injunction upon the facts as found by him. He has given the plaintiff the costs of the suit, and ordered a foreclosure of the purchase-money lien with a personal judgment for the deficiency if any there shall be. According to the conditions of the undertaking, there must be a final decision —• that is, one made at the termination of the action; and the decision, in order to authorize an action on the undertaking, must be in effect that the plaintiff was not a,t the time -of obtaining the injunction, entitled thereto. (Thompson on Prov. Rem, 341, § 22; Shearman N. Y. Central Mills, 12 How. Pr. R., 269; Weeks v. Southwick, 12 How. Pr., R., 170; Methodist Churches of New York v. Barker, 18 N. Y., 463 ; Palmer v. Foley, Court of Appeals MSS., for Abstract., see 5 Weekly Dig., 474; Leavitt v. Dabney, 9 Abb. Pr. [N. S.], 373.)

The order appealed from should be reversed, with ten dollars costs and disbursements.

Present — Talcott. P. J., Smith and Hardin, JJ.

Order appealed from reversed, with ten dollars costs and disbursements.


text:
    HENRY J. BOSTWICK, as Executor, etc., Appellant, v. LUCIEN H. BROWN, Respondent.

      Suit by executor — 'when he is personally liable for costs.

    This action was brought by the plaintiff, as executor, upon a promise made to him after the decease of his testator. A verdict having been rendered for the defendant, a judgment for costs was entered against the plaintiff, in the ordinary form, and without reference to his representative character, and an execution was issued against him cle bonis propriis.

      Held, that this was proper.
    Appeal from an order denying a motion to vacate a judgment, and set aside an execution issued thereon.

      Stilwell (& Roberts, for the appellant.

      O. F. Taber, for the respondent.
   Talcott, P. J.:

This is an appeal from an order made at the Erie Special Term, denying a motion to set aside and vacate a judgment and execution in this action.

The plaintiff commenced the action as executor of the last will and testament of John E. Willis, deceased, and the action appears • by the complaint, to have been founded upon a promise made after the decease of the testator. The cause went to trial, and the . jury found a verdict for the defendant. After the verdict, the .attorneys for the defendant went on and entered a judgment, in favor of the defendant for the defendant's costs $114.99, which judgment was entered against the plaintiff in the ordinary form, taking no notice of the representative character in -which the plaintiff had sought to maintain the action, and issued execution against the plaintiff de bonis propriis.

The plaintiff’s attorney made a motion to set aside and vacate the said judgment and execution, because the same was entered without an order .of the court charging the plaintiff personally with the costs. As we understand the rule now settled, after much diversity of opinion, it is as follows : “ Where it appears by the record that the cause of action, if any, arose after the death of the testator, such right of action rests in the executor in his private right, and he cannot in such case escape the penalty of costs by suing in form in his representative capacity. If he fails to obtain judgment In such case, no motion is necessary to charge such plaintiff with costs. Judgment therefore may be entered, of course, as in ordinary case, upon the clerk’s taxation.” (Holdridge v. Scott, 1 Lansing, 303; Smith v. Patten, 9 Abb. Pr. [N. S.], 205.)

The order of the Special Term appealed from is affirmed, with ten dollars costs and disbursements.

PresenN-TALcoTT, P. J., Smith and Hardin, JJ.

Order appealed from affirmed, with costs and disbursements.


text:
    JEROME B. ROSEBOOM, Respondent and Appellant, v. JOHN D. ROSEBOOM, Respondent and Appellant, and others.

      Construction of will— when widow takes an estate in fee — Liability of tenant in common to account for rents and, profits.

      A testator by his will provided “I give and bequeath to my beloved wife Susan one-third part of all my property, both real and personal, and to have the control of my farm as long as she remains my widow ; and I wish my son George ' to have the first privilege of carrying on the farm as my wife may see fit and proper; and at the death of my wife all my property, both real and personal, to be equally divided between my eight children.”

      Held, that the. widow took an estate in. fee in an undivided third of the farm, and not merely an estate for life therein.
    ■ Where one’ tenant in common enters into possession of a farm, and does nothing- , to prevent l}is co-tenants from occupying-the same with him, he is n,ot liable to account for the value of the rents, issues and profits thereof, nor for what he takes therefrom, but only for what he actually receives oyer, and above his just proportion.
    Appeals, from a judgment entered in Jefferson county upon 'the trial of this action by the court without a jury. By the plain.tiff, from sp much thereof as “ adjudged that the plaintiff and the defendants,, John D. Roseboom, Edgar Roseboom, George RoseIpoom, Nancy Dean, Jenevieve Underwood, Jozena Owen and 'Fannie Allen, are each the owner of an undivided one-eighth part of the premises in the, complaint mentioned, subject to, the inchoate 'rights of dower of- their respective wives, ancl ordering a distribution of the proceeds of sale of said premises accordingly; also adjudging that the plaintiff is only the owner of an equal share lof said premises in' common’ with the other defendants above, named, to wit: the owner of an undivided one-eighth part thereof 'only,'and this appeal is from every part of said decision and of said decree or judgment.” By the defendant, John D. Eoseboom, from so much thereof as “ adjudged and. decreed that, the defendant, John D. Eoseboom, is liable to account to the plaintiff and the, other defendants., for the reasonable value, of the use. and occupation of the premises described in the complaint herein, so long, as he shall occupy the same, at the rate of $325 per year; that plaintiff and the other defendants’ proportionate share of said use and occupation be deducted from the share of the said defendant, John D. Eoseboom, and paid to them by the referee making the sale herein, and ordering a distribution of the proceeds of the sale of said premises accordingly; and this appeal is taken from so much and such part of said decision, judgment and decree only.”
    [ O'Brien <p Emerson, for the plaintiff.
    The, general rule, in the construction of wills, is to ascertain and give effect to the, testator's intentions. (Crosby v. Wendell, 6 Paige, 543-; Parles v. Paries, 9 id., 117; Pqnd Y.Ber.gli, 10 id.., 152; Hatfield v. Snedpn, 42 Barb., 621; Sweet v. Chase, 2 N. Y., 283.) By the will, the testator provided for two distinct devises, and the court must give effect to both, unless so utterly inconsistent pud incompatible that in giving effect-to. one the other must necessarily fail. fTrusteqs y. Kellogg, IS N. Y., 84; VagiEfostrand v. Moore, 52. id., 12;, Van Vechten v. Keqtor., 6,3- id., 52; Taggart.v. Murray, 53 id., 233; Sweet, v. Chase, 2 id., 73; Everett v. Everett, 29 id., 3.9', 83.; Conover, v. Hoffman, 1 Bosw., 223.) The. rule that when two parts of a will are so totally inconsistent that they camiot b.e reconciled, the subsequent part is to be taken as evidence of a subsequent intention, is only adopted from necessity to prevent both provisions being avoided for uncertainty, (fjovenhoven v. Shuler, 2 Paige, 122; See, also, Oheeseboro v. Schoolcraft, 25 Wend., 632; Beardslee Y. Beardslee, 5 Barb., 3,24; Sioeet v. Chase, 2 N. Y., ,73; Everett v. Everett,, 29, id., 39, 83; Van Vechten v. Keator, 63 id., 52; Conover v. Hoffman, 1 Bosw., 223.) An express and positive devise cannot be controlled by subsequent words of uncertain import. (Corrigan v. Kiernan, 1 Brack, 210; 2 Jarman on Will, 742; Arcalariiis v. Geiserhainer, 3 Brack, 75; 1 Jarman op Wills, 161, 165, 414; Bedfieid pn Wills, page 447; Adams, v. Clarke, 9 Mod., 154; BrienY. Fender, 7 Simons, 549; BrownY, Lyon, 6 N. Y., 419.) An express and positive devise cannot be controlled by subsequent ambiguous words. (8 BUgh. [N. S..}, 88;, 2 Clark '& Einnélly, 22; 4 D© G. <& J., 30; 1 Yesey, £r., 268,; 8 Yesey, 42; Cowper, 99; Arnold v. Gilbert, 5, Barb,,’l9Ó, 202;! Quin v. Skinner, 49 ick, 134; Oxley y... Lane, 35 N. Y., 349; Floydv. Fletcher, 38 Barb., 409; JVomdsY. Beyea, 13, N„ Y., 273; Berry y. Merrit, 9 Eng. Bep., 792; Foe v. Sloggett, 5 Exch-, 107; BettisonY. Richards, 7 Taunt., 105.) Courts will so construe wills as to make the disposition of - property effectual. (Butler,, v. Butler, 3 Bárb. Ch., 305,; Du Boisy. Ray, 85. N. Y., 162;, Bof y„ Hover, 33 id., 593; MasonY. Jones, 2 Barb,, 23.0.) The, court committed no error in holding that the defendant, John D. Bogeboom, should account in this action for the use and occupation of the. farm during the pendency, of. tfie same. This bemg an equitable action, the court has ample power to do anything, that may. b,e, necessary to fully and finally adjust the rights of all the, parties. (Smith y. Smith, 10 Paige. 470; Bisphams Brin, of Equity, page 441; 27 Boav., 508; Story’s Eq. Jur., §§ 654, 655, 656.) It may be maintained upon the theory of mesne profits. This action is always maintainable, when there has been a wrongful holding. (60 Barb., 463, 478; 6 Iiill, 328; 2 Johns., 369; 3 id., 475; 6 id., 46; 6 Hill, 507; 1 Wend., 134; 36 N. Y., 647; 2 Johns. Cas., 438; 5 Corven, 264.) The proper measure of damages was the fair value of the use and occupation. (Van Derv.oort v. Gould, 36 N. Y., 647; Holmes v. Holmes, 19 id., 488; 8. O., 21 Barb., 488; Holmes v. Davis, 19 N. Y., 495.)

      L. J. Dorwin, for the defendant.
    John D. Roseboom was not chargeable with the rent of the premisés from the death of Susan Roseboom to the time of trial, and thence to the day of sale, at the rate of $325 per year. (Wooliver v. Knapp, 18 Barb., 265; Dresser v. Dresser, 40 Barb., 300; Hlwell v. Burnside, 44 Barb., 447; Wilcox v. Wilcox, 48 Barb.. 327.)
   Talcott, P. J.:

This is an appeal from a judgment entered on the decision of a justice at a Special Term in Jefferson county.

The action is for the partition of a farm, situated in Brown-ville, Jefferson county, and the case requires a construction of the will of Isaac L. Roseboom, who died at Brownville aforesaid in October, 1871.. The disposing portions of the will are as follows: After providing that all his debts shall be paid and discharged, the testator proceeds to dispose of his estate in these Avords, viz.:

“I give and bequeath to my beloved wife, Susan, one-third part of all my property, both real and personal, and to have the control of my farm as long as she remains my AvídoAV ; and I wish my son George to have the first privilege of carrying on the farm as my wife may see fit and proper, and at the death of my wife all my property, both real and personal, to be equally divided betAveen my eight children.”

On the 27th day of August, 1874, after the will had been admitted to probate, Susan Roseboom, the AvidoAV, duly conveyed to the plaintiff all the rights Avhich she had acquired to the property of Isaac L. Roseboom, under the said last will and testament. The farm in question Avas all the real estate of Avhich Isaac L. Roseboom died seized.

Tho said Susan Roseboom died February 20, 1877, and the plaintiff commenced this suit for a partition of the farm in the same month. The plaintiff claimed, in his complaint, to be the owner of an undivided five-twelfths of the said farm, to wit: One-third thereof by virtue of the said conveyance from Susan, the widow, and one-twelfth as devisee of Isaac L. Roseboom.

The complaint also alleged that one of the defendants, John D. Roseboom, was, at the time of commencing the suit, in possession of the farm, and receiving the rents and profits, “ or mesne profits” and enjoying tho use and occupation thereof, and prayed for an accounting for such use and occupation, and rents and profits; and if partition could not be made without great prejudice and injury to the rights of tho parties, or some of them, then that the premises be sold under the order and direction of the court, and that the proceeds of the sale, after paying the costs and expenses, be divided among the parties according to their respective rights and interest in tho premises.

The parties defendant were the other seven children, and their respective wives and husbands. The defendants all appeared and answered, and ask for a construction of the will, claiming that the effect of it was to give Susan Roseboom, the widow, an estate for life in the one-third of the real and personal property, with tho use of the remainder so long as she remained the widow of tho testator, and that each of the said children is entitled to an undivided eighth of the whole farm.

The answer of the defendants also set up that the deed from Susan Roseboom to the plaintiff was obtained by fraud and unduo influence, but of this they gave no evidence on the trial. The justice at the Special Term held upon the construction of the will, that the defendants were correct in claiming that each was entitled to one-eighth of the farm, upon the theory that tho provisions of the will whereby tho testator gave one-third thereof to the said Susan, and afterwards directed the division of his entire property equally among his eight childi’en after the death of Susan, -were inconsistent, and irreconcilable, and that the last clause of said will controlled the foregoing, and evinced an intent on the part of testator to give the said Susan only a life estate in the one-third.

To the conclusion of law thus found the plaintiff excepted, and appealed from, so much of the judgment as is founded thereon. The justice also found that the defendant, John D. Eoscboom, had received the rents, issues and profits of the premises, and enjoyed the use and occupation thereof since the death of the- widow, and that the reasonable value “ of such use and occupation,” was the sum of $325 per year, and that he, said John D. Eoscboom, account to the other parties to the action “ for said use and occupation and the mesne profits so received by him at the said rate of $325 per year,”' in the manner thereinafter stated.

The defendant, John D. Eoscboom, excepted to this portion of the findings and conclusions of law, and appeals from so much of the judgment as is founded thereon. The said justice also directed the said premises to be sold, and the proceeds of the sale, to be divided upon the principles set forth in said findings and conclusions of law.

The question first presented is upon the construction of the will. Did the devise to Susan, the widow of the testator, convey to her the one-third part of the farm in foe, or only a life estate ? The Eevised Statutes provide (1 E. S. [2d ed.] 739, § 1), “ The term ‘heirs,’ or other words of inheritance, shall not be requisite to create or convey an estate in fee ; and every grant or devise of real estate, or any interest therein hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant.” The devise, therefore, of the one-third part of all the testator’s real property to his wife Susan, in form absol-ute; conveyed to her the fee, unless the intent to pass a less estate is necessarily implied in the terms of such devise or can be gathered from the other provisions of the will. A will is to be construed according to the intentions of the testator, so far forth as. they are indicated by the language which he has used. “ If two parts of a will are irreconcilable with each other, the last part is generally to be taken as evidence of the latest intention of the testator; but this rule is only applied in those cases where the two provisions are totally inconsistent with each other, and where the intention of the testator cannot be ascertained. * * * This rule is only adopted from necessity, to prevent the avoiding of both provisions for uncertainty.” The testator’s intention, in harmony with which a will is to be construed, is to be derived from the language of the will, and is not to be founded- on any outside, speculation as to his motives, or. to be raised by what appears to us to be the injustice of the disposition of the property which the will clearly indicates.

The intention of the testator is to be derived from an examination of the whole will, though, in giving it such a construction as will accord with that intention, it may be necessary, to depart 'from the strict grammatical construction of the words, and to supply, transfer or reject.

By the will, in this case, the testator provides for two distinct ■devises, and in construing it we must give effect to both, unless •they are so entirely inconsistent and incompatible that in giving effect to the one the other must necessarily tail-. (See Trustees, etc., v. Kellogg, 16 N. Y., 84; Van Nostrand v. Moore, 52 id., 12; Taggart v. Murray, 53 id., 233; Everitt v. Everitt, 29 id., 39, o.p. 83; Van Vechten v. Keator, 63 id., 52.)

■ The use of the expression by a testator denoting, a gift of all his property, is in general- to be understood as. excluding such of his -property as had, by previous provisions of his will, been specifically disposed of.

In the case .of Covenhoven v. Shuler (2 Paige, 122), a testator bequeathed one-third of his personal property to his widow, and the use of. the residue of his personal- property and his farm so ■long as she remained his widow, and after the youngest child •became of age, all of his real and- personal- property to be divided equally among his children ; and it was held that the widow- took an absolute title to one-third of the personal property. The devise and bequest were, in substance, like those in the case at bar, the pnly difference being that in the case at bar the devise and bequest to the wife embraces one-third of the real estate as well as one-third of the personalty.

As we have seen, since the Revised Statutes, no words of inheritance are requisite to make a devise in fee, but in that respect realty stands' on the same footing as personal property. We do not find that the case of Covenhoven v. Shuler has ever been overruled or questioned upon this point, and it seems, to us a decisive and controlling authority in the case, at bar. (See, also, Chesebro v. Schoolcroft, 25 Wend., 632 ; Beardslee v. Beardslee, 5 Barb., 324.)

We are, therefore, of the opinion that the widow, Susan Rose-boom, took an estate in fee in one undivided third'of the farm-, under the wilL of Isaac L. Roseboom, and that the same passed to the plaintiff by her deed, the same not having, so far as the case shows, been obtained by any fraud, imposition or undue influence. The appeal of the plaintiff, therefore, is sustained.

The next question is as to the liability of John D. Roseboom to account for the supposed rents, uses and profits of the farm since the death of his mother, Susan. We think the learned justice, at the Special Term, erred in holding the defendant liable to account to the plaintiff or any of the other tenants in common for the rents, issues or profits of the farm while it was in his possession.

' At common law it resulted from the nature of the tenure, that one tenant in common was not liable to his co-tenant to account even for the rents, issues and. profits received by him from the premises held in common, in the absence of an express agreement,' but by Statute (4 Anne, ch., 16, § 27, re-enacted in this State; 1 R. S. [m. p.], 750, § 9 [2d ed],), a joint tenant or tenant in common is given an action of account or for money had and received against his co-tenant, where the latter has received more than his just proportion. It was not, in this case, alleged in the complaint that the defendant, John D. Roseboom, occupied the premises under any agreement with his co-tenants or any of them. Nor was it proved that he had actually received any rents or profits from the premises, but the court found the annual value of the premises to have been $325, and held John D. liable to account for the use and occupation of the premises owned in common, upon that basis. The tenant in common is under the statute, liable to- account only for what he receives, not for what he takes. (Washburn on Real Property, 420; Wilcox v. Wilcox, 48 Barb., 327; Joslyn v. Joslyn, [4th Dept.], 9 Hun. 388.) .

. There was never any demand upon John D. Ros.eboom by his co-tenants or any of them to permit their joint occupancy, and ho alleged ouster shown. J ohn D. Roseboom, it is admitted, was the owner of an undivided part of the premises. Ho was' seized per my expectant. His right was diffused throughout the whole. The other tenants stood aloof, and did not attempt to occupy with him. What, was he to do ? Either abandon the premises, or account for what his co-tenants might be able to prove the rental of the whole was worth. He was not driven to do either. He might remain in the occupancy of the whole, so long as he did nothing to prevent his co-tenants from occupying with him and did not deny their title. We think, therefore, that the appeal of John D. Roseboom must be sustained, and upon each of these appeals the judgment must be reversed.

Judgment reversed and new trial ordered, the costs to be awarded after the event.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment reversed on each appeal and new trial ordered, question of costs reserved till final determination, including costs of the appeal.


text:
    In the Matter of the Assignment of GEORGE W. NICHOLAS, an Insolvent Debtor, for the Benefit of Creditors, PHINEAS PROUTY and ALEXANDER L. CHEW, Appellants, v. JANE R. CLAGGETT, Respondent.

      Assignments for benefit of creditors — jurisdiction one!', conferred upon County Courts — Supreme Court has no original jurisdiction over proceedings thereon by petition.

    One Rogers, the assignee for the benefit of the creditors of one Nicholas, applied, by petition, to the Supreme Court for, and procured an ■ order appointing a referee to take and state his accounts. Upon the coming in of the referee’s report, the assignee was directed to sell the interest of the debtor in certain lands in Pennsylvania, and subsequently, upon a report being made showing the disposition made of the proceeds of the sale, the assignee was discharged.

      Held, that under chapter 466 of 1S77, as amended by chapter 318 of 1878, the entire original jurisdiction over these proceedings, by petition, was conferred upon the County Court, and that the Supreme Court had no authority or jurisdiction to make the orders appealed from, and that the same were therefore void.

      Appeal by the purchasers from an order made at the Special Term, setting aside an order confirming a sale made by an assignee for the benefit of creditors.

      Hehry JR. Selclen, for the appellants.
    Proceedings can be be instituted by petition only “in a causé” (that is, in ah action ■as defined in the Code of Procedure), “ or in a matter over which the court has jurisdiction under some act of the Legislature or other special authority.” (1 Barb. Oh. Pr. [1st ed.], 578.; 2 id. .[2d. Rev. ed.], 579; Van Santvoord’s Eq. Pr.-, Í23-; 2 Daniel’s Ch. Pr. [Perkin’s ed.], 1603; Matter of Pet. of Livingston, 34 N. Y., 569.) If there was a fund in court, or under its control, there might be more propriety in the courts acting ripon an original petition without suit; but even in such cases the English Court ’Of Chancery has always debliued to act upon original ¿petition 'without suit, ekcbpting in cases where the estáte wás very small. (Ex parte LarJcin, 4 Russ., 307 ; In re Moleswotth, id/, note; Corbett v. Tottenham, 1 Ball & Beatty, 60 ; Mountfort, Ex parte, 15 Ves., 448 ; Ex parte Salter, 2 Dick., 769 ; S. 01, 3 Bro. C. C., 500 ; Ex parte Brown, Cooper, 295.) There are no statutory provisions which give the Supreme Court any summary power to direct or control the conduct of trustees under assignments for the benefit of creditors. (Burrill on Assignments, 536, 537 ; Rogers v. Rogers, 3 Paige, 379 ; Lewin on Trusts, infra.) Special jurisdiction over this subject has recently been given by statute to the county judge, but it is not given to the Supreme Court. (Laws of 1860, chap. 348, p. 594; Laws-of 1867, chap. -860, 'p. 2163 ; Laws Of 1870, chap. 92, qx 297 ■; Laws of 1872*, chap. 838, p. 1993 ; Laws of 1877, chap. 466, p. 543.)

      E. M. Morse, for the respondent.
   Talcott, P. J.:

ít appears in this case that George W. Nicholas, an insolvent debtor, and resident of Geneva, in this State, made a voluntary ’assignment, for the benéfit of creditors, to one Frederick W. Prince, of the sáme place ; find Prince, failing to give the bond required by the statute, one Erastus" I. Rogers was substituted as such assignee, presumably by the order of the county judge or County Court of Ontario county. That on the 30'th day of July, 1877,' at a Special Term of the Supreme Court, held at Rochester, on the petition of the said Rogers, as such assignee, an order was made by Mr. justice Rawson, appointing Wn’i. H. Smith, Esq., a referee to take and state the account of said Rogers as such assignee. The matter of the accounting proceeded before the referee, and he made his report thereon to the Supreme Court, which was presented to a Special Term of the Supreme Court, held at Rochester on the 27th of August, 1877, and a motion was thereupon made to confirm the said report, and the same was thereupon confirmed, in pursuance of a stipulation between the attorneys of such of the creditors as had appeared upon the said accounting; and it appearing by the said report that there remained of the assigned estate the undivided half of certain lands situated in Potter county, Pennsylvania, the said order of confirmation further directed that the said interest in the said lands .should be sold at public auction, in the village of Geneva, on a notice of six days, to be once published in the Geneva Courier, and to be posted in three public places in said village of Geneva, and the funds realized from such sale be distributed as specified in said order ; and that after the payment of the final dividend, the said assignee render a final account, to be taken and stated by and before the said William H. Smith, who was continued as a referee for that purpose; and that, upon the final passing of said account by the said assignee, he be finally discharged from his trust and his bonds ordered to be canceled. The assignee proceeded to make a sale of the undivided interest of the said Nicholas, in the said lands in Pennsylvania, and proceeded to make his final account before the referee, who ’reported the saíne, and that said assignee was entitled to a discharge from the duties of his trust, as such assignee, and that his bond should be canceled.

Afterwards, at a Special Term of the Supreme Court held at Rochester, on the fii-st day of November, 1877, on the petition of Mrs. Jane R. Claggett, as one of the creditors of said George W. Nicholas, the said Special Term made an order, setting aside the sale of the said lands as against the appellants, Prouty and Chew, on certain terms and conditions therein mentioned. Erom this order of the Special Term the said Prouty and Chew, the purchasers at the sale of the Pennsylvania lands, appeal to this court.

It does not appear to us that the Supreme Court had any jurisdiction of the subject-matter, in reference to which, by the several orders purporting to have been made by it, it appears to have ■undertaken to deal. The entire jurisdiction over this subject is conferred on the County Court. (See Laws of 1877, ch. 466, amended by the act of 1878, ch. 318.) No action was pending in this court when the said orders were made, but the orders were made simply on the petition of the parties -who applied for them; and admitting that in case of an action pending in this court for an accounting by the assignee in a voluntary assignment such orders would have been properly made, yet, under the statutes referred to, the whole original jurisdiction in such matters is conferred upon the County Court, and we know of no authority by which the Supreme Court is authorized to make orders in such matters, without any suit in that court, except upon appeal from an order or determination previously made by the County Court, in pursuance of the statutes referred to.

We think the counsel wholly misapprehended the law as regards the forum to which they are entitled to resort, by original petition in such cases, and that all the orders which appear to have been made in the Supreme Court on petition were without authority or jurisdiction, and are void.

The order appealed from is l’eversed, with ten dollars costs and the disbursements for printing.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.


text:
    WILLIAM D. WHIPPLE, Appellant and Respondent, v. ASBURY CHRISTIAN, Appellant and Respondent.

      Mechanic’s lien law — chapter 305 of 1844 not affected by chapter 402 of 1854, and chapter 204 of 1858 —filing of notice.

    Chapter 305 of 1844 providing a mechanic’s lien law applicable to all the cities of the State and certain villages, including the village of Canandaigua, was not repealed or affected by the passage of chapter 402 of 1854, as extended by chapter 204 of 1858; and the notice, in order to create a lien on land in Canandaigua, was, after the passage of the acts of 1854 and 1858, still required to be filed in the office of the clerk of the county, as provided in the first act, and not in the office of the town clerk, as prescribed in the two latter statutes.
    Appeal by defendant from a judgment, entered upon the trial of this action by' the court at the Ontario Special Term, and an appeal by the plaintiff from so much thereof as requires him to pay the defendant $6,308.04

      John Gillette, Jr., for Whipple.

      Thomas M. Howell and 8. M. Godiny, for Christian.
   Talcott, P. J.:

This is an appeal from a judgment rendered in this action in favor of the plaintiff at the Ontario Special Term. The action is to redeem certain premises situated in the village of Canandaigua, in said county, from the defendant, who claims title to them as a purchaser on the foreclosure of certain mortgages upon, said premises aiid a sale thereof on the 17th of January, 1868. The mortgages were made to J. & A. McKochnie, in August and September, 1858. The foreclosure was commenced in August, 1867.- The plaintiff, claiming to have a. debt against Joshua Tracy, the owner of the equity of redemption in said premises, for lumber furnished at his request, to be used in repairs on a, certain building on said premises known as the Tracy House, on the 10th day of September, 1866, filed a notice of his claim in the town clerk’s office of the town of Canandaigua; and afterward, on the 16th day of July, in the year 1867, commenced an action in the Supreme Court for the purpose of foreclosing the lien supposed to have been created by the filing of the said notice; and on the 29th of August, 1867, obtained a judgment therein by default for the sum of $285.40; and on the 19th day of September, 1868, purchased the said premises on an execution issued on-the said judgment, and no person having redeemed the same on the 28th day of December, 1869, the said premises were conveyed to the plaintiff by the sheriff of Ontario county, in pursuance of said judgment and execution sale.

The notice of lis pendens in the suit to foreclose the McKechnie mortgages was filed in the office of the clerk of Ontario county on the 6th day of August, 1867, but the plaintiff was not made a defendant in the said action. The defendant, having purchased the said premises at the foreclosure sale, went into possession of the said promises, and has made valuable and permanent improvements thereon, and had no notice of any claim of the plaintiff thereon, until on or about the 6th day of October, 1874, just prior to the commencement of this suit, when the said plaintiff served on the said defendant a written notice claiming that he was the owner of the premises, and giving an account of'what he claimed to be his title, and demanding of the defendant that he should render an account of the amounts ho had received as the rents and profits of said premises, and offering to pay the $8,000 purchase-money paid by the defendant on his purchase at the foreclosure sale, less the amount of such rents and profits, and demanding the possession of the premises on such payment being made.

The first and most important question which is presented is, whether, by the filing of such notice in the office of the clerk of the town of Canandaigua, the plaintiff acquired a lion under the mechanic’s lien law, and by the sale, on execution issued on his judgment and the sheriff’s deed, acquired the title to the promises in question.

This depends upon the construction and effect of the various lien laws bearing upon the question. The plaintiff’s judgment was recovered on the 24th day of August, 1867, which was subsequent to the filing of the notice of Us pendens in the foreclosure suit.,, .By chapter 220 of tiro Laws of 1844, there was a méchame’'' lien law enacted for the city of New York. By chapter 305 of ' the Laws of the said session, there was enacted a mechanic’s lien law applicable to all the cities of the State (except the city of • New York), and to the villages of Syracuse, Williamsburgh, Geneva, Oswego, Auburn and Canandaigua. By this act it was provided that 1 ‘ any person who shall hereafter, by virtue of any ' contract with the owner the reofor his agent, * * * perform ■ any labor or furnish materials in building, altering or repairing ’ any house * * * in the several cities in this State (except ■ the city of New York), and in the villages of Syracuse, Williams- • burgh, Geneva, Oswego, Auburn and Canandaigua, shall have a' lien,” etc. And by the second section of the same act it was provided as follows : “The person performing such labor * '* # ” shall cause to be drawn up specifications of the work by him contracted to be performed, or materials to be furnished, and stating the price or prices agreed to be paid therefor, and shall file them, ' or if there be a contract, a true copy thereof, if the same be in writing, in the office of the cleric of the county in which the city or - village may be situated, and serve a notice thereof personally on such owner or his said agent,” etc. And section three of the act provides that “the lien so created by this act shall take effect from such filing'and such service of the said notice, and shall continue ■ in full force for the space of one year thereafter.” This act was amended by the Laws of 1845, by giving to the Court of Common Pleas jurisdiction of the docket of liens and judgments filed’ with the county clerk in the same manner as judgments recovered in said court.

The next act to be noticed is chapter 402 of the Laws of 1854, entitled, “An act for the better security of mechanics and others erecting buildings in the counties of Westchester, Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, :■ Lewis, Orange and Dutchess.” Section 1st of this act provides that ’ “ any person who shall hereafter perform any labor in erecting * * * any house * * * in either of the counties mentioned * * * shall, on filing with the town clerk of the town in which the ’ property is situated, the notice prescribed in the fourth section of this ■ act, have a lien for the value of such labor and materials, upon such-' house, * * # and upon the lot, parcel or farm of land upon: which the same shall stand to the extent of the right, title, and interest of the owner of the property existing at the time of the filing of the said notice.”

The fourth section of this statute provides that “ within thirty days, after the performance and completion of such labor or-the final furnishing of such materials, the contractor * * * * shall serve a notice in writing upon the town cleric of the town where the property is located, specifying the amount of the claim. and the person against whom the claim is made, the name of the. owner of the building; and if in a city or village, the situation of the-building by street and number, if the street be known. * * * The town clerk shall enter the particulars of such notice in a book to be kept in his office, to.be called the “ Lien Docket,” * * * and -no lien shall attach to said land, buildings or appurtenances, unless such notice be served and filed by said clerk, and said notice when so filed shall thereafter operate as an incumberance upon said property.” Section 24 provides, that “all acts heretofore passed for the better security of mechanics. * * * in either of the above counties are hereby repealed,” and contains a. provision, saving pending -proceedings commenced under any former acts. Clearly the act of 1854 did not alter or otherwise effect the act of 1844 as applicable to .the village of Ganandaigua.

• Chapter 204 of the Laws of 1858 briefly declares that the provisions of the act of 1854 are extended and deemed applicable to all. the counties of the State, except New York and Erie. And. sec-, tion 2 of the act of 1858, provides that all acts and parts of acts; inconsistent with the said act of 1858 are thereby repealed. This is the only legislation that can in any way affect the act of 1844, as applicable to the village of Canandaigua.- The object of the. act of Í854 was to extend the benefits of the mechanic’s lien law to the counties named in its title, and it provides for the filing of notice of the lien in the town clerk’s office .of the towns in such-counties. When this act was by the statute of 1858 extended to all the counties of the State, it simply repealed “ all acts and parts of acts inconsistent with this act.” There was no inconsistency between the acts of 1858 as applicable to the county of Ontario; and the act of 1844, which had provided a hen law expressly for. the cities of the State except New York, and for certain villages, including Canandiagua.

The Legislature passed an act, chapter 489 of the Laws 1873, purporting to amend the act of 1854 (which act of 1873 was amended by chapter 551 of the Laws of 1874 and by chapter 233 of the Laws of 1875), and which extends to all the counties of the State, except Kings, Queens, Erie, New York, Onondaga and Rensselaer, repeals all acts theretofore passed for the better security of mechanics and others erecting buildings and furnishing materials in either of the counties of the State except those named. (Laws of 1873, ch. 489, § 24.) This act provides for the filing of the notice of lien in the office of the clerk of the county where the property is situated. (§ 4.)

All the legislation affecting the question down to the time when the plaintiff filed his notice of lien affected only counties as to which no mechanic’s lien law existed, and was presumably intended only to embrace such counties. The law of 1844 was special and local as to the cities and villages embraced withiu its provisions. The act of 1858 was a general law, and it is a well-established rule for the construction of statutes that a general law does not repeal a local law relating to the same subject, unless the intent to repeal the local law is clearly manifested. (Smith’s Commentaries, § 757, pp. 87, 98; § 788, p. 905.)

In Bowen v. Lease, 5 Hill, 221, the court says: “As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence a repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law if the two acts, may well subsist together.” (Op., p. 226, and see Van Denburgh et al. v. The President, etc., of Greenbush, 66 N. Y., 1, Op., p. 3.)

It cannot be presumed that by the act of 1854, extended by the act of 1858, the Legislature intended to repeal the law of 1844, as by such a construction there would have been left no lien law applicable to any portion of the State except the city of New York; and town clérk’s offices are not known in cities. ■ ■

The act of 1844 had no reference to the county of Ontario; it gave a mechanic’s lien as to property situated within the village .of Canandaigua, whilst the act of 1854, extended by the act of 1858, was intended to give to mechanics power to create a lien . on buildings situate in the comity of Ontario, and without the .limits of the villages of Geneva and Canandaigua, and there is nothing inconsistent in the two laws, and no such repugnancy between the two as makes it necessary to hold that the law of 1844 , was repealed by the extension of the law of 1854 to the several , counties of the State.

, If these views are correct, they lead to a reversal of the judg.rnent, because the-notice of the lien claimed by the plaintiff was not filed in the office of the clerk of Ontario county, and therefore .. he acquired no title as against the purchaser on the foreclosure of útho prior mortgages, by a sale on his execution, because ho had no lien when the notice of lis pendens was filed in the action to ; foreclose the mortgages.

i Judgment reversed and complaint dismissed, with costs to the ■ defendant.

The effect of tho reversal of the judgment in the above case is to reverse all the proceedings on the reference for the accounting, . which arc accordingly reversed without costs to either party.

Haemk, J., concurred ; Smith, J., not sitting.

Judgment reversed and complaint dismissed, with costs to the ' defendant. Decision of referee on accounting reversed, without costs.


text:
    In the Matter of the Accounting of ALPHEUS C. BECKWITH, as Assignee, etc.

      Deoree on final accounting of assignee — -appeal from — the security required by section 1341 of the Code of Civil Procedure must be given.

    An appeal from a decree of a county Judge, made upon the final accounting of an assignee for the benefit of creditors, is subject to the rules governing appeals from final judgments rendered by the County Court under section 1340 of the Code of Civil Procedure, and to be effectual the security required by section 1341 must be given.

      Motion to dismiss an appeal from the decree of the county judge of Onondaga county, on the final accounting of Alpheus C. Beck-with, as assignee of Harlow A. Pierce and Thomas J. Haegerty, insolvent debtors, on the ground that no security had been given on the appeal.

      Beardsley, Goolcingham & Burdiclc, for motion.

      Risley, iSloddart & Matteson, opposed.
   Talcott, P. J.:

We think the decree rendered by the county judge in this case is in the nature of a final judgment, and is not an interlocutory order. (Chap. 466, of Laws of 1877, §20, subd. 4, 5 and 7.) The statute evidently contemplates and provides for a final determination by the county judge of the matters committed to his cognizance. The twenty-fifth section of the said act provides that any proceedings under the act “ shall be deemed for all purposes, including a review by appeal or otherwise, to be a proceeding had in the court as a court of general jurisdiction,” and the section declares that the couz't may exercise the powers of a court of equity in reference to any matters involved therein.

Section 22 of the act declares that all orders or decrees in these proceedings shall have the same force and effect, and may be entered, docketed and enforced, and appealed from, the same as like orders or decrees of the County Court in an original action brought therein.

We are, therefore, of the opinion that the appeal from the adjudication of the county judge in this case is to bo governed by the rules governing an appeal from a final judgment rendered by the County Court under section 1340 of the Code of Civil Procedure, and that in order to render such appeal effectual, the appellant should have given such security as is provided for in section 1341; consequently, that the appellant, not having furnished such security, the appeal is irregular, and should be dismissed. But, as this is a new question, we will give the appellant leave to remedy .the defect, if he desires to do so.

Appeal dismissed, unless the appellant give to the respondent the security required under section 1341 of the Code of Civil Procedure, to stay execution, and to perfect the appeal within ten days from the service of a copy of this order, in which case tho appeal is to stand as originally taken ; the appellant to pay the costs, $10, of this motion.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.


author: Hardin, J.:

text:
    PLATT C. VIELE, Appellant, v. JUNIUS JUDSON, Impleaded with others, Respondent

      Assignment of mortgage — neglect of county cleric to note it on the side of the record, of the mortgage — Laches — when a party loses rights by.

    November 4th, 1870, one Decker executed a bond and mortgage, to one Vaughn for §1,200, and on the same day the latter executed a paper, purporting to be an assignment of the same to plaintiff. Both papers were recorded, but the assignment, was not noted on the side of the mortgage, because it was so vague that the mortgage to which it referred could not be determined. March 13th, 1873, Vaughn executed a satisfaction-piece, and the mortgage was discharged of record. Plaintiff knew that the mortgage was so discharged, but took no steps to have it restored. September 20th, 1875, Ludlam, the then owner of the property, executed a mortgage for §5,000 to Hubbard, who assigned the same to the defendant Judson. Ludlam and Hubbard both knew that plaintiff’s mortgage had not been paid, but Judson purchased in good faith, and without knowledge of its existence.

      •Held, that plaintiff was guilty of laches in not taking steps to have his mortgage restored on the record, and that defendant Judson’s mortgage was entitled to priority over his.
    ■ Appeal from a judgment, entered in Monroe county upon tho trial of this action by the court without a jury.
    The judgment ivas entered upon findings and a decision of the Special Term in an action to foreclose a mortgage. On the 4th day of November, 1870, Eranldin Decker executed the bond and'’ mortgage for $1,200, described in the complaint, to Evan D. Vaughn. On the same day Vaughn executed a paper called an assignment, and delivered it to the plaintiff. Both the mortgage and said paper were recorded on the same day and hour in the Monroe county clerk’s offLe. The clerk failed to note any memorandum of assignment of the mortgage in the hook containing the record of said mortgage. It w«s insisted that the paper was insufficient and indefinite, and that the clerk was not apprised by it what mortgage was intended, and was .therefore excusable for not entering a note in the book where the $1,200 mortgage was recorded. The disputed assignment was in the following words, viz:
    This instrument, made this 4th day of November, 1870, between Evan C. Vaughn, of the city of Rochester, county of Monroe, and State of New York, of the first part, and Platt C. Viele, of the same place, of the second part, witnesseth: That the party of the first part, for a good and valuable consideration to him in hand paid by the party of the second part, have sold, assigned, transferred and convoyed, and docs hereby sell, assign, transfer and convey to the party of the second part a certain mortgage, bearing date the 4th day of November, 1870, made by Franklin Docker, recorded in the clerk’s office of Monroe county, in liber — of mortgages, at page-, on the-day of-■ 18 — , at — o’clock —. M.; together with the bond accompanying said mortgage, and therein referred to, and all sums of money due and to grow due thereon. And the part— of the first part hereby covenant that there is due on said bond and mortgage the sum of $1,200.
    In witness whereof, the party of the first part have hereunto set my hand and seal the day and year first above written.
    EVAN D. VAUGHN, [l. s.]
    State of New York, >
    Monroe Countv. \

    On this fourth day of November, in the year one thousand, eight hundred and seventy, before me, the subscriber, personally appeared Evan D. Vaughn, to me known to be the same person described in and who executed the within instrument and acknowledged that he executed the same.
    JNO. BANCKER,

      JSiotary Public.

      Endorsed — Monroe County, ss: Recorded on the 4th day cf November, 1870, at 2 o’clock p. m., in liber 10 of assignments and mortgages, page 172, and entered in liber — of mortgages, at page —, and examined.
    CHARLES J. BOWEN, Cleric.

    Bancker, the attorney, who drew the paper, received from the plaintiff, $1,100' on said bond and mortgage by Decker, and delivered it to Vaughn. The plaintiff then put the papers on record. On the 13th day of March, 1873, Vaughn, executed, under his hand and seal, and duly acknowledged a regular discharge of said mortgage, and the same was recorded in said clerk’s office on the 29th day of March, 1873, and was noted at the foot of the record of said mortgage. The plaintiff, “ during the summer of 1873, and at all subsequent times had full knowledge of the said discharge of the mortgage by Vaughn, and of the record of the same, and took no steps to reinstate the said record.”
    In September, 1875, M. C. Ludlam purchased the promises of M. N. Hubbard, and gave to Hubbard a mortgage of $5,500, executed September 20th, 1875, and recorded September 22d, 1875. This $5,500 was duly assigned by Hubbard to the defendant, Junius Judson, who became the owner, advancing cash upon his purchase thereof, having no knowledge or information sufficient to put him on inquiry as to the prior mortgage, the discharge thereof, or any invalidity in the discharge thereof; and he relied upon the abstract of title of said premises, made and certified by the clerk of Monroe. At the time of 'the execution of said mortgage of $5,500 from Ludlam to Hubbard, Ludlam and Hubbard both knew that the discharge executed by Vaughn was invalid, and that the mortgage of $1,200 to plaintiff was unpaid. Hubbard had no interest in the $5,500 mortgage, and it was negotiated by Ludlam to Judson, and Ludlam received the money upon it advanced by Judson. Hubbard took no part in the negotiation, and received no part of the money. The trial judge found that the $5,500 should have preference over the plaintiff’s mortgage; and as to the other defendants, that the plaintiff was entitled to a foreclosure, and awarded costs to Judson.

      J. C. Cochrane and Davy & Ducky, for the appellant.

      F. A. Macomber, Satterlee & Yeoman, for the respondent, Judson.
   Hardin, J.:

The record of the plaintiff’s mortgage was marked discharged March 29th, 1873, by the clerk, when he recorded the discharge executed by Vaughn bearing date March, 1873, acknowledged the 28th of March, 1873. When the clerk noticed the entry of the discharge, he found no entry of any assignment of the plaintiff's mortgage. Therefore the discharge executed by the mortgagee Vaughn was properly entered of record by the clerk. Had the paper called the assignment of the mortgage, executed by Vaughn to plaintiff, been noted at the foot of the record of the plaintiff’s mortgage, it would have been irregular for the clerk to enter the discharge. The trial judge has found that the paper called an assignment, “ does not contain sufficient description of, or enough statements of facts concerning the mortgage to designate or describe the same.” Whether that finding is correct, is not important to be determined here. For it appears the plaintiff more than two years prior to the purchase by Judson of the mortgage held by him, knew of the discharge of his mortgage. The trial judge has found, viz : “ That the plaintiff Platt C. Viele, had, during the summer of 1873, and at all times subsequent thereto, full knowledge of the said discharge of the mortgage set forth in the complaint, and of the record of the same, and tooh no steps to reinstate the said record.” The evidence supports this finding. If the plaintiff as soon as he learned in the summer of 1873, that the mortgage had been discharged of record, had been active and vigilant, the discharge could have been vacated and innocent purchasers in good faith would not have parted with their money upon the faith of the record freed of the mortgage. Instead of being vigilant, as soon as he learned of the discharge, the plaintiff slept two years, and was culpably negligent, allowing the record to appear to be clear of his mortgage.

When Judson took an assignment of the $5,500 mortgage, a clerk’s search showing the record free of any mortgage to the plaintiff, was produced and acted upon, and in good faith without notice, Judson parted with his money and became the assignee of the mortgage made by Ludlam to Hubbard. The laches of the plaintiff, his negligence and the good faith of Judson parting with his money without notice of the plaintiff’s mortgage, work an estoppel upon the plaintiff in favor of Judson. Prompt and decisive action upon the part of the plaintiff, by suit to foreclose . his mortgage, if over duo with Us pendens filed, or if not over due, a suit to cancel the discharge, and to reinstate the record, would have saved the plaintiff’s mortgage, as well as prevented Judson or any one else from being deceived by the record. The observation of Van Vorst, J., in Costello v. Meade (55 How. 358), is applicable, to wit: “ For if a man so conducts himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists,and acts on that inference, he shall be afterwards estopped from denying it.” (Cornish v. Abington, 4 Hurl. & Norman, 556; Schafer v. Reilly, 50 N. Y., 67 and 68, and cases there cited of Jackson v. Van Valkenburgh, 8 Cowen, 260; Jackson v. Henry, 10 John, 185; Varick v. Briggs, 6 Paige, 323; Fort v. Burch, 5 Denio, 187.)

By failing to act the plaintiff identified himself with Vaughn, and must abide by his act so far as the subsequent purchaser is affected. (Bank v. Anderson, 14 Iowa, 544; and also close of opinion of Dwight Com. in Trustees of Union College v. Wheeler, 61 N. Y., 112.) Judson was, therefore, a subsequent purchaser,” in .good faith, without notice, parting with fresh consideration, and must be permitted to hold his mortgage as a prior and superior lien in equity to the mortgage of the plaintiff. ( Van Keuren v. Corkins, 66 N. Y., 77; DeLancey v. Stearns, 66 N. Y., 157; Trustees of Union College v. Wheeler, 61, N. Y., 89.) It follows from, these views, that the result reached at the trial was correct, and the judgment should be affirmed, with costs.

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

Judgment affirmed with costs.


text:
    AARON WHITE, Respondent, v. THE UTICA AND BLACK RIVER RAILROAD COMPANY, Appellant.

      Railroad company — failure of, to maintain cattle-guards near highway — Rate of speed of train — when immaterial.

    Where a railroad company has failed to construct and maintain suitable and sufficient cattle-guards near the outer line of the highway, they being thirty-five feet from such outer line, it is not relieved from liability for a cow killed by one of its trains, by the fact that the cow was running at large and strayed upon the track at the highway crossing.
    Upon the trial of this action brought to recover damages for the killing of plaintiff’s cow caused by the defendant’s not maintaining proper cattle-guards, one of plaintiff’s witnesses was allowed to state, against defendant’s objection and exception, that the train was running at the rate of fifteen miles an hour. The defendant’s counsel asked the court to charge “that, in view of the facts of the case, the rate of speed had nothing to do with this case.” Reid, that it was error to refuse so to charge.
    Appeal from a judgment, in favor of tbe plaintiff, entered in Oneida.county upon the verdict of a jury.
    The action was brought to recover damages for a cow of plaintiff killed by defendant. The cow was running at large m the highway and strayed to the crossing, and was in the centre of the track and in the highway when the whistle was blown. She was startled by the whistle, and stai-ted along the highway toward one Davis’ house, and his dog started after her and drove her back, and she tinned down the track and was struck by the engine. She was about to jump the cattle-guard, when she was struck by the pilot. Evidence was offered, on the part of the plaintiff, tending to show that the guard east of the highway was not at the road crossing but some thirty-five feet from the outer line of the highway. Evidence was offered by the defendant tending to show that the cattle-guard was properly constructed and maintained, and had been maintained there for years, and was proper and suitable for the purposes of its construction.
    . A. M. Beardsley, for the appellant.
    P. O. J. Be Angelis, for the respondent.. ,
   Hardin, J.:

The trial court submitted to the jury the question of fact, made by the evidence, as to whether the cattle-guard was suitable and sufficient for the purpose of answering the requirement of the statute, and also a question as to whether the plaintiff’s negligence contributed to the result which happened.

If the first proposition had been found in favor of the plaintiff, it was not necessary upon the facts disclosed that the other should have been submitted to the jury. (Corwin v. N. Y. and Erie R. R. Co., 3 Kern., 42; sec. 8, chap. 282 of 1854; Tracy v. Troy and Boston R. Co., 55 Barb., 532.) In Spinner v. N. Y. C. & H. R. R. R. Co., which was tried at the Circuit before me, it appeared that plaintiff’s cattle escaped from his close into the highway, and from the highway through a gate maintained by the defendant along tire highway and left open by its agents. Upon the finding of those facts by the jury, a judgment was directed by me for the plaintiff for the value of the cattle killed by the defendant. That was affirmed by this department and is reported. (13 N. Y. S. C., 600.) It was hold there, viz.: “ The mere fact that cattle are found upon the track, without evidence of any right or authority from the company, does not, of itself, establish negligence on the part of the owner of the cattle.”

The case was affirmed by the Court of Appeals, and is reported in 67 N. Y., 153. Forger, J., in that case (page 159), says : “ The learned judge at Circuit was right in holding that if the defendant had not performed the duty put upon it by the ■ statute, a right of the plaintiff to recover arose therefrom, and that the negligence of the defendant in not keeping the gate closed at night, was a failure to maintain and keep in good repair a fence at the side of its track, and not a negligence in the use of its property, such as renders it liable to one injured by its act, in person or estate, only when he is without fault of his own.” If ■ the cattle-guard is not duly made, the liability is declared by the statute. (Fawcett v. The North Midland Railway Co., 2 Eng. Law & Eq. R., 289.)

Upon the trial the plaintiff offered evidence of the speed at which the train passed over the crossing, and it was objected to by the defendant as immaterial, and the objection overruled, and witnessed answered: “About as usual — fifteen miles an hour;” and the court was requested to charge: “That in view of the facts of the case, the rate of speed has nothing to do with this case." The court replied: “ I think I Avill alloAV them to take the Avhole facts, and decline to charge as you request.”

The defendant Avas entitled to have the jury instructed that there could be no recovery predicated upon the idea that the rate of speed had anything to do with establishing the defendant's liability. (1.) It was no greater than the defendant had a right to run its cars at that point. (2.) It did not by any evidence appear to bo unusual. (3.) It did not appear that the rate of speed could have made any difierence as to the liability of the defendant. (Warner v. N. Y. C. R. R. Co., 44 N. Y., 465.)

The language of the trial judge, in refusing the request, may have left the idea in the minds of the jury, that though they found the cattle-guard ample and in compliance with the statute, that the rate of speed at the crossing was a fault of the defendant, lor A\rhich a recovery could lie had.

The defendant was entitled to a definite and specific instruction-up on the subject of the speed. It did not have the law laid down in that regard, and the omission may have influenced the jury adversely to the defendant. Therefore the verdict should be set aside and the judgment reversed, with costs to abide a new trial. A new trial should be ordered in the County Court, with costs to abide the event.

Tahcott, P. J., and Smith, J., concurred.

Judgment and order reversed, and neAV trial ordered in the. County Court, with costs to abide event.


text:
    EUNICE B. LAMBERTON, Appellant, v. JOHN VAN VOORHIS and QUINCY VAN VOORHIS, Impleaded with others, Respondent.

      Equitable lien for unpaid purchase-money — when superior to lien of judgment.

    April 1, 1869, Steitzor and wife conveyed certain real estate to Fleischer, who, on January 9, 1872, executed and acknowledged a deed thereof to William Huelr tinsmidth, and gave the same to Steitzor, who, without the knowledge or consent of Fleischer, changed the name of William to Frederica, and the deed was recorded May 14, 1872. April 29, 1872, Frederica conveyed the same to Steitzor’s wife by deed, recorded May 13, 1S72, and Steitzor and wife con-, veyed the same to H. Butler by deed, dated May 4,1872, and on September 24, 1872, Butler conveyed to Darrow, who, September 25, 1872, executed a moi'tgage thereon, which was subsequently assigned to the plaintiff', who brought this action to foreclose!the same. .Two thousand dollars of the consideration price was not paid to Steitzor by Fleischer, and neither Frederica Hueltinsmidth or Steitzor’s wife were purchasers for value. May 10, 1872, a - judgment was recovered against Fleischer, Steitzor and Van Yoorhis, and on September 22, 1873, another judgment was recovered against Steitzor.

      Held,, that even if the deed executed by Fleischer was avoided by the unauthorized alteration of the name, yet Steitzor had an equitable lien upon the ' premises for the unpaid purchase-price, and that such lien passed to Butler by the deed executed by,Steitzor and his wife, and from Butler to Darrow»
    . and that by the mortgage from him it passed to the mortgagee, and was by him transferred to the plaintiff, and that such equitable lien of the plaintiff-was superior to the lien of the judgments recovered against Fleischer and • Steitzor. ■
    Appeal by plaintiff from a judgment entered in Monroe county upon the report of a referee, dismissing the complaint as to defendants, John and Quincy Van Yoorhis. The action was brought to foreclose a mortgage upon premises described as about sixty-two acres in Monroe county. The referee found- that- the- judgments held by John and Quincy Yan Yoorhis were prior and superior liens to the lien and rights of the plaintiff as mortgagee.
    Originally, the title to the premises was in Michael Twoomley in fee, and he and his wife, conveyed to Henry Steitzor, April 1, 1878; Steitzor and wife conveyed April 1, 1869, to John Fleischer. In January 9, 1872, John Fleischer prepared and executed and acknowledged a deed thereof to William Hueltinsmidth, and put the same in the hands of Steitzor. This deed was altered by striking out the name of William and inserting Frederica Hucltinsmidth, and put on record without the knowledge or authority of John Fleischer; it iras recorded May 14. 1872. Frederica ivas induced by Steitzor to convey by deed, dated April 29, 1872, to Mrs. Steitzor, wife of Henry Steitzor, which was recorded May 13, 1872. May 4, 1872, Mrs. Steitzor and her husband executed a warranty deed of the premises to Harriet Butler, which was recorded May 13, 1872. Harriet Butler by warranty deed, dated September 24, 1872, conveyed to Agnes Barrow, by deed recorded September 26, 1872. Agnes Harrow, September 26, 1872, made the bond and mortgage set out in the complaint to Fisk and Clark for the benefit of her separate estate. The mortgagees, for a good consideration, assigned the bond and mortgage to Smith and Perkins & Co. as collateral security in September, 1872.
    Subsequently, and on the 10th of January, 1873, Fisk and Clark, and Smith and Perkins & Co. assigned the bond and mortgage to the plaintiff. November 27, 1872, Agnes Harrow and her husband conveyed the premises to Alexander B. Lamberton, the husband of the plaintiff, and he assumed the mortgage, and he and his wife, the plaintiff, February 1, 1873, conveyed the pi*cm-. ises to Wm, L. Calvert, and he assumed the mortgage. Calvert, by warranty deed, March 8, 1873, conveyed the' premises to' Marion L. Nickols, and he assumed the mortgage. April 30, 1873, Nickols and wife conveyed them to Mina A. Garlock, and she assumed the mortgage. Mrs. Garlock and husband, by warranty deed, August 4, 1874, conveyed them to Magdalena Rummell, who assumed the mortgage. Mrs. Rummell and her husband, by deed dated November 12, 1874, conveyed them to Romania Borschcll, the present owner, who did not assume the mortgage. May 10, 1872, the Farmers and Mechanics’National Bank of Rochester recovered a judgment for $113.60 against John. Fleischer, Henry Steitzor and John Van Voorhis. Van Voorhis was an accommodation indorser on the note on which the judgment was recovered, and subsequently paid it, and took an assignment of the judgment, with the privilege of enforcing it in the name of the bank or otherwise.
    On the 22d day of September, 1873, the defendants, John and Quincy Van Voorhis, recovered a judgment in this- court for $836.15 against John Fleischer. On the 30th day of September, 1873, John Fleischer, at the request ef M. L. Nichols, then grantee of the premises, executed á quit-claim deed thereof to Nichols,- and declared in it that- it was to confirm the deed to Frederica Hueltinsm idth.
    When Henry Steitzor conveyed- to John Fleischer, on April 1, 1869, Fleischer did not pay $2,000 of the purchase-price. The referee found that there was no evidenc'o that it was ever paid, “ and that this sum was an- equitable lien on said premises, as against John Fleischer, in favor of Henry Steitzor, until the recovery of the above-named judgments; but that they became liens superior to said equitable lien from the time of their rendition respectively''

      Angus McDonald, for the appellant.

      John Van Voorhis, for the respondents.
   Hardin, J.:

Assuming that the referee is correct in finding that the altered deed, from John Fleischer of the-premises to Frederica Huelti'nsmidth, did not pass any title from him to her, the judgments held by the respondents would be a general 1-ion upon the legal estate of Fleischer, being prior, in point of time, to the plaintiff’s mortgage, and presumptively a superior charge upon the premises covered by the mortgage. (Chauncey v. Arnold and Wife, 24 N. Y., 330.) But the deed from Frederica Iluoltinsmidth to Mrs. Steitzor was without consideration, as was also the deed to her, and she was not a pur-chaser in good faith for a valuable consideration, and she would not, for that reason, be entitled to hold the title she thus derived, if any, as against the judgments of the respondents. Nor would the facts, which are claimed to effect an estoppel as to Henry Steitzor, avoid the effect of the lien of the judgments. However, when Henry Steitzor, May 4, 1872, joined with his wife in a conveyance to Harriet Butler, he had not been paid the purchase-price in full by John Fleischer. The referee has found that Fleischer was indebted to Steitzor for some $2,000 for unpaid purchase-money of the premises. Such indebteclñess for purchase-price constituted an equitable liéii1 ití favor of Steitzor. When life joined with his wife in a warranty deed of the premises to Mrs. Butler, he transferred such equitable interest to her ; it attached to the premises, and passed under his ébiivéyanee to her. (Arnold v. Patrick, 6 Paige, 310 ; Fisk v. Potter; 2 Keyes, 72 ; Hulett v. Whipple, 58 Barb., 227.)

When Mis. Butler took the deed from the Steitzórs, she took under it all the title and estate aiid equitable interest,■ which they or either of them had in the premises, including StoitzOr’s' vendor’s lien for unpaid purchase-price of the premises. Steitzor had not, before joining in such deed, been paid, as* the referee' finds'; and he had done nothing to waive the lien upon the premises, and therefore it passed to Mrs. Butler- — his grantee., John Fleischer, took the estate cum omre,- at- least to the extent of the unpaid purchase-money: (2 Story’s Eq., § 1232; White v. Williams, 1 Paige, 502; Fisk v. Potter, 2 Keyes, 72; Hulett v. Whipple, 58 Barb., 227; Stoddard v. Whiting, 46 N. Y., 627.) This équit-able interest passed from Mrs. Butler by her warranty deed to Agnes Darrow, and was covered and carried by her mortgage, which the plaintiff now holds and seeks to enforce against the ■premises.

To the extent of that unpaid purchase-money the mortgage- of the plaintiff attaches, and is prior in point of time, and higher in equity than the general lien of the judgments recovered against Fleischer, who took the legal title charged with the equitable interest of Steitzor for unpaid purchase-money. The judgments Should, therefore, be subordinated to the plaintiff’s mortgage to' the extent of such unpaid purchase-price. (Cook v. Kraft, 60 Barb., 409; Hallock v. Smith, 3 id., 267; Wood v. Robinson, 22 N. Y., 567.) If the lands should sell for more than-sufficient to satisfy and discharge the equitable interest, represented by such' unpaid purchase-ínóney, the judgments would then conks in for such surplus. (Arnold v. Patrick, supra.)

It might be held, upon the facts found by the referee, that Steitzor was estopped from questioning the mortgage given upon the premises by Mrs. Darrow subsequent to her taking title under the deed of Steitzor; and .that, as to him, the purchase-money due him was carried by his deed; and that he so intended, if any-question was made by him, and that view of the case would carry to the plaintiff all the equitable interest he had in the premises ¿t the time of docketing the judgment in favor of the bank against Steitzor, as well as Fleischer. (House v. McCormick, 57 N. Y., 311.) But a mere transfer of his equitable interest, would be sufficient to give the plaintiff, under her mortgage, that equity as against the judgment; for when the judgment was docketed in favor of the bank on the 10th of May, 1872, against Steitzor, he had no legal estate that the judgment would become a lien upon. As we have seen, his deed to Mrs. Butler was made on the 4th day of May, 1872.

These views lead to the conclusion that the referee was in error in holding that the judgments “ were prior and superior to the lien of the plaintiff’s mortgage,” therefore the judgment entered upon his report, holding the plaintiff’s mortgage void as against the judgments, should be reversed and a new trial granted before another referee, with costs to abide the event.

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

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