text:
    HANNAH LINDEN, Respondent, v. DOROTHEA DOETSCH, Appellant.

      Pleading — what allegations a complaint must contain in an action to admeaswrQ donner— Code of Oiml Procedure, secs. 1647-1649.
    "Where the complaint, in an action brought to have the dower of the defendant, a widow, admeasured and set off to her, admits the defendant’s right to dower, it is not necessary that it should allege that the defendant claims to have such right in the property.
    Such an allegation is only requisite in those cases in which the plaintiff denies the right of the defendant to dower, and demands a judgment forever bamng her from claiming the same.
    Appeal by tbe defendant from an interlocutory judgment, entered upon tbe decision of tbe Erie Special Term, overruling a demurrer interposed to tbe complaint herein.

      E. L. Parker, for tbe appellant.

      A. O. Calkins, for tbe respondent.
   Bradley, J.:

Tbe complaint does not state facts sufficient to constitute a cause-of action in ejectment, but it docs allege tbat tbe defendant was tbé wife of Peter Koester up to the time of his death, that he died in 1872, seized of certain lands described, in which the defendant then became and was entitled to dower, and that the plaintiff is seized in fee of the premises, subject to such right of dower of the defendant, and amongst other things the relief asked for is that the dower of the defendant be admeasured and set off to her, and that the plaintiff have possession of the residue. '

The contention of the defendant’s counsel is founded upon the grounds of the demurrer, that the complaint does not state facts sufficient to constitute a cause of action, and that causes of action are improperly united. In pleading, every fact affirmative. and negative, requisite to the cause of action, must be alleged, else it cannot be supported against a demurrer going to its sufficiency, and no inferences not fairly within the averments will be taken to sustain it. And while proof of title will prima facie take with it the right of possession, the allegation of title in a complaint, without that also of the right to the possession of premises, is not sufficient to support it as a complaint in ejectment, and for that reason, at least, the pleading here fails to state facts sufficient to constitute that cause of action. And it is contended that because it does not allege that the defendant claims to have a right of dower in the premises the complaint does not contain allegations sufficient to support an action for admeasurement of dower. And this contention is founded upon the statute which provides that “ a person claiming as owner an estate * * * in real property may maintain an action against a woman who claims to have a right of dower in * * * the property, to compel the determination of her claim.” (Code Civil Pro., § 1647.) It will be observed that this section of the statute has relation to an action to determine the right to dower of a woman claiming it; and the purpose of an action within it may be to bring into controversy the question whether a right of dower is in the person who is alleged to have made a claim, or is ,the claimant to that effect. And “ where the plaintiff insists in his complaint that the defendant has not a right of dower in the property, he must demand judgment that she be forever barred from such a claim.” (Id., § 1649.) That is not the purpose of this action. The plaintiff admits and alleges that the defendant has a right of dower, and the relief asked is that it be admeasured. This gives application to section 1648, wbieb provides that “if the complaint admits the defendant’s right of dower in the property * * * it 'must demand judgment that her dower be admeasured.”

These three sections embrace the system for remedy in behalf of the owner of property to determine the claim of dower made when it is questioned, and for its admeasurement when it is admitted (which is as far as the provisions of those sections are applicable to the question here), and are a substitute for the provisions of the [Revised Statutes for admeasurement of dower on the application of owners and extend the remedy much further. (2 K.. S., 489, § 6.) Where the right of dower is admitted by the complaint, and the only purpose of the action is its admeasurement, the matter of claim, as such, by the defendant, as distinguished from the right to it, has no importance, The remedy and relief in such case are dependent upon the right of the defendant, and not upon her assertion of claim, which, as such, is not applicable to the action for mere admeasurement of an admitted right of dower. And the fact that no such claim is made does not defeat the remedy of the owner to have the admeasurement, if the right, which- is the basis of the relief, is admitted.

The admission in the complaint of her right of dower is, in legal import and effect, that the defendant claims that estate in the premises. If this were an action to compel the determination of a claim made by the defendant of dower in the land, in the sense imported by the term which, is the main purpose of that article fifth of the Code, the right to maintain it would depend upon a claim, having been in fact in some manner made by the defendant. The purpose of the action in such case is not only to ascertain the extent of the estate claimed, but whether such claim can be supported. And there the necessity of an allegation that a claim is made, is a requisite fact to be alleged in the complaint. All the facts necessary to support an action for admeasurement merely of an admitted right of dower, are alleged in. the complaint. It follows that the objection that the complaint does not state facts sufficient to constitute a cause of action, is not well taken by the demurrér.

.The other matters not necessary to the action are surplusage and rnight have been stricken out on motion. They constitute no ground for demurrer, unless they may be construed to allege another cause of action, and the two are not properly unitable in the same complaint. The test called for by the objection of misjoinder of causes of action is as broad as the objection itself, to support which the pleading-must be susceptible of such construction Ufe to give to it two causes of action not in harmony within the statute.

The complaint cannot be so construed as to contain the allegations requisite for a cause of action in ejectment, or any action other than that for the admeasurement of dower, and, therefore, is not within the objection of misjoinder of causes of action taken by the demurrer.

The remedy of the defendant, to reduce the complaint to the allegations legitimate to the cause of action alleged, is to trim it down by means of a motion to strike out the unnecessary matter, or to make it more definite and certain.

The judgment should be affirmed, with leave to the defendant to withdraw the demurrer and answer over within twenty days on payment of costs.

Haight and Coklett, JJ., concurred.

Judgment affirmed with costs, with leave to defendant to withdraw demurrer and answer over in twenty days, on payment of the costs of the demurrer and of this appeal.


source: Caselaw Access Project

author: Corlett, J. :

license: Public Domain

text:
    ORVIN C. DRYER and CHARLES A. DRYER, Appellants, v. THOMAS SEXSMITH, Respondent.

      Justice's Court — power of the justice to issue a commission to examine a witness — when he may refuse to do so — Code of Civil Procedure, sec, 2980.
    Although the right of a party to an action in a Justice’s Court to have the justice-award a commission to examine a witness not residing in the county, as provided in section 2980 of the Code of Civil Procedure, is a substantial one, and an arbitrary refusal of the justice to issue a commission would require a reversal of his judgment, yet the, power to issue the commission is a discretionary one, and the justice may properly refuse to issue it, when no possible benefit could accrue to the party applying for it; as for example, where he declines to ask for an adjournment until the examination can '.be had and a return thereto made.

      Appeal by the plaintiffs from a judgment of the County Court of Monroe county, reversing a judgment recovered by the plaintiffs in a Justice’s Court.

      J. A. Stull, for the appellants.

      T. E. Bramble, for the respondent.
   Corlett, J. :

On the 9th day of August, 1884, the plaintiffs commenced a suit against the defendant in a Justice’s Court to recover $160.07, balance due for coal and lumber sold and delivered to the defendant. On the return day of the summons both parties appeared by counsel. The complaint consisted of the items of the plaintiffs’ account, which was denied by the defendant, who also set up other defenses. After issue joined the defendant applied upon an affidavit for a commission to take the testimony of one James J. McQuestan, of Fairport, Chautauqua county. The proceedings upon that application are stated in the justice’s returns as follows: Defendant here asked for a commission and filed a written affidavit to obtain the said commission, which is hereto annexed and marked C.” Plaintiffs object to any adjournment without the undertaking required by the statute. Defendant says he does not ask for an adjournment., and said he would not give any security. Court declined to issue a commission as the defendant did not give the undertaking demanded by the plaintiffs.

Section 2980, Code of Civil Procedure, provides “ where it appears that a witness not within the county where the action is pending, or an adjoining county, is material jn the prosecution or defense of the action, the justice may award a commission,” etc.

It is very clear that in a proper case the right to a commission is a substantial one, otherwise the ends of justice might be defeated, at the same time the power vested in the justice to issue one is, in its broadest sense, discretionary. If, upon a proper affidavit, the justice should arbitrarily refuse to issue a commission when no good reason appeared to the contrary, the judgment would be reversed. (Parmelee v. Thompson, 7 Hill, 77; Eaton v. North, 7 Barb., 631.) But while it appears that no possible benefit could accrue to the party applying, it would be folly to grant it. In this case the action was before a Justice’s Court in the county of Monroe. The witness, to obtain whose testimony the commission was applied for, resided in the county of Chautauqua. It is self-evident that without an adjournment a commission would be useless. The learned counsel for the respondent so stated in his argument.

After issue joined, and the plaintiffs had demanded an undertaking as a condition of the adjournment, which they could have insisted upon as a matter of right, the defendant, as the return shows, not only refused to give an undertaking, but distinctly stated that -he did not ask for an adjournment. When these facts'appeared, it became the duty of the justice, in the exercise of a wise discretion, to deny the application for a commission, the granting of which would not aid the applicant. It would be a useless ceremony, which in no aspect of the case could further the ends of justice. The complaint,' although informal, furnished full information to the defendant; no objection on that ground was raised upon the trial. The evidence on the part of‘the plaintiffs tended to show a balance due, as contained in the complaint. The proof given on the part of the plaintiffs, was general. The defendant made no objection and it is too .late to make it now. If, in any respect, the proof was defective, a specific objection would have furnished the plaintiffs an opportunity to supply the deficiency. The proof warranted the result.

’ The judgment of the County Court must be reversed and that of the Justices’ affirmed, with costs.

Present — Haight, Beadley and Coelett, JJ.

Judgment of the County Court reversed and that of the Justices’ affirmed.


author: Follett, J.:

text:
    JOHN W. DAVISON and VIOLET BUDLONG, as Committee, etc., of NELSON BUDLONG, a Supposed Lunatic, Respondents, v. ROBERT P. BUDLONG, LEROY BUDLONG and JEREMIAH KINNE, Appellants.

      Statute of limitations — when the right to sue on a note accrues — when the serviee ■ upon one defendant prevents the statute from running as to the others — Code of Civil Procedure, secs. 399, 400.
    On September 17, 1884, the summons in this action, brought upon a promissory noto made by the defendants Budlong, and indorsed by the defendant Kinne, which fell due on September 18, 1878, was issued by a justice of the peace of the town of German Plats, with a verified complaint annexed. On September eighteenth the summons was personally served on Kinne, at the town of German Plats, by a police constable of the village of Ilion, and on September 30,1884, the other defendants were personally served at their residences, at the village and town of Frankfort.

      Held, that as the right to sue the note did nor accrue until September 19, 1878, the summons and complaint were served on Kinne within six years from the day when the cause of action accrued, and that a delivery of the summons and complaint to the constable and their service on Kinne on that day prevented the statute of limitations from applying as a bar in favor of the defendants who were not served until the twentieth.
    Section 400 of the Code of Civil Procedure does not require that the summons shall be delivered to a constable of the town in which the defendant resides, but to a constable authorized to serve the summons in that town.

      Appeal from a judgment of the County Court of Herkimer county, affirming a judgment of a justice of the peace in favor of the plaintiffs.
    Le Roy Budlong and Robert P. Budlong were joint and several makers, and Jeremiah Kinne the indorser of a promissory note, which fell due September 18, 1878, for the recovery of the amount due upon which this action was brought in a Justice’s Court.
    September 17, 1884, the summons in this action was issued by a justice of the peace of the town of German Flats, to which was annexed a verified complaint. September 18, 1884, the summons and complaint were personally served on Kinne, at the town of German Flats, by a police constable of the village of Ilion, by whom also the summons and complaint were personally served September 20, 1884, on the other defendants, at their residences, at the village and town of Frankfort. Upon the return day the defendants filed a verified answer, setting up the six years’ statute of limitations and a counter-claim in favor of the makers of the note. Upon a day to which the cause was adjourned the defendants were allowed to amend their answer, by inserting: “ IV. The defendants, further answering said complaint, deny each and every, other allegation in said complaint contained, not hereinbefore admitted or answered.” The plaintiffs objected to the proposed amendment, upon the ground that it was insufficient and improper, which objection was overruled. The case was then adjourned, and afterwards tried, the defendants appearing and contesting, but offering no evidence. The justice rendered a judgment for the plaintiffs, which was affirmed by the County Court, and the defendants appeal from the judgment of that court.

      Reuben Wright, for the respondents.

      Smith & Steele, for the appellants.
   Follett, J.:

Chapter 414, Laws of 1881, prescribing the form and substance of denials in cases in Justices’ Court in which verified complaints are filed, is identical with section 500 of the Code of Civil Procedure, prescribing the form and substance of denials in courts of record. 'Without determining whether the denial interposed was technically sufficient under the rules applicable to pleading in Justices’ Courts, we are of the opinion that the evidence was sufficient to establish tbe due appointment of tbe plaintiffs as tbe committee of tbe person and estate of Nelson Budlong. Tbe order appointing them, wbicb is in proper form, and tbe undertaking, wbieb is in proper form, given pursuant to tbe order, were produced by tbe county clerk from bis office, proved and received in evidence, wbicb was sufficient.

Tbe demand of payment of tbe note at tbe time when and at tbe place where payable, and tbe refusal to pay, was duly proved, together with notice to tbe indorser, by tbe person who made tbe demand. One of tbe plaintiffs also testified that tbe indorser admitted receiving a notice of protest. Tbe evidence sufficiently established a cause of action against all of tbe defendants, and tbe remaining question is, was the action barred by tbe six years’ statute of limitations \

Tbe right to sue this note did not accrue until September 19, 1878. (Osborn v. Moncure, 3 Wend., 170 ; Edw. on Bills [2d ed.], 679, 958.) An action begun within six years after that date was in time. (Code Civ. Pro., §§ 380, 382.) In computing the time in wbicb an action may be brought, tbe first day upon wbicb it might have been brought is excluded. (Cornell v. Moulton, 3 Denio, 12; McGraw v. Walker, 2 Hilt., 404; Code Civ. Pro., §§ 380, 788.) Tbe summons and complaint were personally served on Kinne within six years from tbe day when tbe cause of action accrued. Tbe other defendants resided, and were served September 20,1884, in tbe town of Frankfort, by a constable authorized by chapter 191, Laws of 1877, to serve summonses in that town. Tbe summons and complaint were delivered to this constable September 18, 1884, for service, and served that day on one of tbe defendants, wbicb prevented tbe statute from applying as a bar in favor of tbe defendants served September twentieth. (Code Civ. Pro., §§ 399, 400.) Section 400 of the Code does not require that tbe summons shall be delivered to a constable of tbe town in wbicb tbe defendants reside, but to a constable authorized to serve tbe summons in tbe town in wbieb tbe defendants reside.

Tbe judgment should be affirmed, with costs.

HaRdot, P. J., and BoardmaN, J., concurred.

Judgment of the County Court of Herkimer county affirmed, with costs.


text:
    CHARLES B. EVERSON, Appellant, v. R. NELSON GERE and Others, Respondents.

      Guaranty — when itis transferable before a note, which it was giren to secure, becomes due.

    February 12,1884, a corporation made its promissory note to the order of its treasurer for $86,000, payable one year after date with interest, which was indorsed by the treasurer to “Jno. Crouse & Co., or order,” and delivered to that firm with a paper attached thereto, upon which was written the following guaranty: “For value received of John Crouse & Co., we do hereby guaranty to said John Crouse & Co. the payment of a note hereto annexed, made by,” then followed a description of the note and the signatures of the defendants. On February 18, 1885, John Crouse & Co. indorsed the note, without rccourso, to the plaintiff, and delivered it to him, together with a written instrument, by which they assigned the note, the guaranty and all claims against the corporation evidenced by it.
    In this action, brought against the guarantors, the plaintiff was nonsuited upon the ground that the guaranty was special or personal, and not assignable before the maturity of the note.

      Held, error; that the guaranty, being an absolute guaranty of a fixed, debt, was transferable by sale and assignment.
    That while parties may by express words limit the right to assign a guaranty before a cause of action arises upon it, yet the court will not presume that they intended to, or have in fact done so, when the guaranty relates to negotiable paper, unless the intention to render the guaranty unassignable clearly appears upon, the face of the contract or from the surrounding circumstances.
    Appeal from a judgment in favor of the defendants, entered upon a nonsuit directed at the circuit.
    February 12,1884, the Syracuse Iron "Works (a corporation) made its promissory note, whereby it promised to pay to the order of Charles E. Hubbell, treasurer, $36,000, one year after date, with interest,which was indorsed: “ Pay Jno. Crouse & Co., or order, Chas. E. Hubbell,. treasurer,” and the note was transferred, by virtue of the indorsement, to John Crouse & Co. Upon a paper attached to the note was written the following guaranty :
    Office of Syracuse Iron Wi “Syracuse, N. Y., February 12

      “ For value received of John Crouse & Co., we do hereby guaranty to said John Crouse & Co., the payment of a note hereto annexed, made by the Syracuse Iron "Works for thirty-six thousand’ dollars, said note being dated February 12, 1884, and payable twelve months after date at Merchants’ National Bank of Syracuse, with interest at six per cent per annum, payable semi-annually.
    “ R. N. GERE.
    “ CHAS. E. HUBBELL.
    “ C. 1). AVERY.
    “ W. H. H. GERE.
    “ J. FORMAN WILKINSON.
    “ GILES EVERSON.”
    February 13, 1885, the note was indorsed: “Pay Charles B„ Everson or order, without recourse to us in any event, John Crouse & Co.,” and the note was transfered to the plaintiff. On the same day John Crouse & Co. executed and delivered to the plaintiff the following assignment:
    “ For value received, we hereby sell, assign and transfer to-Charles B. Everson a certain promissory note, signed by R. N. Gere, president, and indorsed by Charles E. Hubbell, as treasurer, which note bears date February 12, 1884, and is a promise by the Syracuse Iron Works'to pay to the order of “ Charles E. Hubbell, treasurer, $36,000 at the Merchants’ National Rank, with interest at six per cent, and the same guaranteed, by a written guaranty attached thereto, and we also sell, and hereby assign said guaranty, as well as all claims against said Syracuse Iron Works arising out of the loan or loans of money which preceded said note and of which said note is the evidence of the last balance due, but this assignment is without recourse to the subscribers.
    “ Dated February 13, 1885.
    “JOHN CROHSE & CO.”
    The maker failed to pay the note, and this action was brought against the guarantors. The court nonsuited the plaintiff, upon the ground that the guaranty was special or personal and was not assignable before the note fell due. A judgihent was entered upon the nonsuit, from which the plaintiff appeals.

      M. M. Waters, for the appellant.

      Louis Marshall, for the respondents.
   Follett, J.:

Section 1910 of the Code of Civil Procedure provides that “any claim or demand can be transferred except in one of the following cases.” The case in hand is not one of those excepted. An expectancy in a potential demand and a demand resting on a ■contingency are assignable, and if they ripen into causes of action the assignee can recover them in his own name. (Field v. The Mayor, 6 N. Y., 179; Stover v. Eycleshimer, 3 Keyes, 620; Devlin v. The Mayor, 63 N. Y., 8-15.) Unless the possible or contingent right of action of John Crouse & Co. upon the guaranty is unassignable by its terms or nature, the plaintiff acquired title to the guaranty and a perfect cause of action under it and the assignment. A general guaranty is a security for all persons who deal upon its credit. A special guaranty is a security only for the particular person to whom it runs or to whom it is addressed. (Evansville National Bank, v. Kaufmann, 93 N. Y., 273, 276.)

A letter of credit addressed to a particular person, or an agree- ■ ment to pay for goods which a particular person may sell to another, are instances of special guarantees. In such cases the guarantor is deemed to have relied upon the character and discretion of the person addressed, and he cannot, by an assignment or an appointment, confer upon another the right to furnish the credit and recover of the guarantor. The cases arising under this class of guarantees need not be specially considered; as an absolute guaranty to pay an ascertained debt, evidenced by a written instrument, negotiable in its nature, rests upon a different principle, notwithstanding some of the cases have extended the rule applicable to special guarantees to absolute guarantees of fixed debts; nor is it necessary to consider the cases discussing the question, whether a guaranty like this, indoi’sed upon a negotiable note, is ipso facto transferred bv a transfer of the note -without an assignment of the guaranty; for in this case the note was transferred by indorsement, and the guaranty by assignment to the plaintiff. The question is not, therefore, whether this guaranty was negotiable, in the restricted •sense of the word, as applicable to commercial paper; but whether it is negotiable in the sense that it is capable of being negotiated and transferred by sale and assignment.

The guaranty being upon an allonge, it is to be construed and given tbe same effect as though written on the note. (McLaren v. Watson’s Exrs., 26 Wend., 425; Folger v. Chase, 18 Pick., 63.) And they are to be construed together. (Union Bank v. Coster’s Exrs., 3 N. Y., 203; Church v. Brown, 21 N. Y., 315; Marsh v. Chamberlain, 2 Lans., 287, 293.) Guarantees are governed by the rules of construction applicable to other contracts. (Belloni v. Freeborn, 63 N. Y., 383 ; Evansville Nat. Bank v. Kaufmann, 93 id., 273; Crist v. Burlingame, 62 Barb., 351; Baylies on Guarantors, 111.)

• It is conceded by the respondents that had the note and guaranty been transferred to the plaintiff after the note had been dishonored he would have acquired a perfect cause of action against the guarantors, but it is said that before that event the guaranty was not assignable. It must be conceded that parties may, by express words, limit the right to assign a guaranty before a cause of action arises upon it, but courts will not presume that they have done or intended to do so when the guaranty relates to negotiable paper, unless the intention to render the guaranty unassignable clearly appears upon the face of the contract, or from the surrounding circumstances. (Devlin v. The Mayor, 63 N. Y., 8, 17.)

The note and guaranty in this case, read together in the light of commercial usages, lead us to the conclusion that the parties to the guaranty did not intend to restrict its assignability, and that such is not the legal effect of the contract.

In Smith v. Starr (4 Hun, 123), the distinction existing between executory guarantees involving trust and confidence, and executed guarantees of the payment of a fixed debt was not observed. All of the cases cited in support of that decision arose over special executory guarantees.

The judgment is reversed and a new trial granted, with costs to abide the event.

HaRdiN, P. J., and BoaudmaN, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    CAROLINE LAWTON, Appellant, v. GUY SAYLES, as Survivor of the Firm of HENRY H. SAYLES & CO., Respondent.

      Evidence — when a witness is interested in the event within section 829 of the Code of Civil Procedure.

    On November 22,1882. the plaintiff assigned a bond and mortgage owned by her on which there was due $300, with interest from December 2,1870, to the firm of H. H. Sayies & Co., by an instrument absolute in form, but in fact intended to secure a debt due to the firm, from the plaintiff’s brother. The plaintiff claimed that the agreement, which was made between herself, her brother and H. H. Sayies, was that the firm should hold the mortgage as security for $300, with interest only from the date of the assignment, while the firm claimed that the full amount secured by said bond and mortgage, viz., $300 and interest from December 2,1870, was assigned. H. H. Sayies died on February 23,1883, ana on April 10, 1884, Guy Sayies, as surviving partner, recovered a judgment against the brother for the amount due the firm.
    Upon the trial of this action, brought by the plaintiff to compel the defendant, the surviving partner of the firm, to reassign the bond and mortgage to her upon payment of the amount which she claimed it was assigned to secure, the court refused to receive the testimony of the brother tending to show that it was agreed between the plaintiff H. H. Sayies and the witness that the mortgage was to be held as security for $300 and interest from the day of the assignment.

      Held, that the exclusion of the evidence was proper as the witness was interested in the event within the meaning of section 829 of the Code of Civil Procedure.

      Church v. Howard (79 N. Y., 415) followed.
    Appeal from a judgment dismissing the complaint with costs, entered upon a decision of the Chemung Special Term.
    The plaintiff was the owner of a bond and mortgage, upon which there was due $300, and interest from December 2, 1870. November 22, 1882, she assigned the bond and mortgage, by a written assignment, absolute on its face, to II. H. Sayies & Co. It is agreed that the assignment was, in fact, as security for the indebtedness of John J. Goldsmith, the plaintiffs brother, to the assignees. The plaintiff claims that it was agreed between Goldsmith, herself and the assignees, that they should hold the mortgage as security for $300, with interest from November 22, 1882. The defendant claims that the full amount secured by the bond and mortgage was assigned to secure the indebtedness of Goldsmith. The plaintiff tendered $300 and interest from November 22, 1882, and brought this action to compel a reassignment.
    It is alleged in the answer that April 10, 1884, Guy Sayles, as surviving copartner of H. H. Sayles & Co., recovered a judgment against Goldsmith for $1,013.82, which has not been paid, which fact is conceded by the plaintiff. Henry H. Sayles and Guy Sayles were the individuals who formed the copartnership of H. H. Sayles & Co. The oral agreement under which the bond and mortgage were assigned, was made between Iienry H. Sayles, Goldsmith and the plaintiff. February 23, 1883, Henry H. Sayles died, leaving Guy Sayles, defendant, the sole surviving partner. The sole issue is whether the full amount secured by the bond and mortgage, or but $300 with interest from November 22, 1882, was assigned for the security of H. H. Sayles & Co. This issue of fact was found for the defendant and a judgment entered dismissing the complaint, from which the plaintiff appealed.

      Jacob Schwartz, for the appellant.

      Walter L. Smith, for the respondent.
   Follett, J.:

Hpon the trial Goldsmith was permitted to testify that it was agreed between himself, plaintiff and Henry H. Sayles, that the bond and mortgage were to be held by H. H. Sayles & Co., as security for $300 and interest thereon from November 22, 1882, and upon payment of that sum, the bond and mortgage were to be reassigned to the plaintiff. The defendant objected to this evidence upon the ground that the witness was interested in the event and incompetent to testify to a personal transaction with Henry H. Sayles, as against his surviving partner, under section 829, Code of Civil Procedure, which objection was overruled and the defendant excepted. Afterwards, and before the trial closed, the defendant moved, .upon t'he same ground, to strike out the evidence, which motion was granted and the plaintiff excepted. Whether Goldsmith was competent to testify to the agreement with Henry H. Sayles, is the sole question raised upon this appeal.

In Church v. Howard (79 N. Y., 415), the action was to recover of Fargo and Howard the amount due on a promissory note signed by Fargo as principal, and by Howard as surety. Fargo made no defense, and bis liability to pay tbe amount due on tbe note was-fixed. Howard defended on tbe ground that tbe note bad been materially altered by Fargo and tbe payee, without Howard’s consent, and that tbe six year's’ statute of limitations had applied as a bar. Neither of these defenses were available to Fargo, for tbe alteration was made by Fargo and tbe payee; and Fargo, bad made payments within tbe six years preceding tbe commencement of tbe action.

Fargo was permitted to testify that the note was altered by himself and tbe payee. This was held to be error, on tbe ground, that Fargo was interested in the event, and incompetent to testify under section 829, notwithstanding the fact that the defense was-not available to him, and notwithstanding tbe fact that his liability to pay the note was undisputed, and was then fixed by bis default in tbe action. Tbe decision was not placed upon the ground that Fargo was a party to tbe action, but solely upon tbe ground that be was interested in tbe event. Millee, J., in speaking for tbe court said : He (Fargo) was interested in avoiding a judgment against tbe defendant Howard, tbe surety, which would entitle such surety to prosecute and obtain a judgment against the- defendant Fargo,, which be might be compelled to pay. He (Fargo) would be affected by tbe legal operation- and effect of tbe judgment, and tbe record would be legal evidence in an action by tbe surety to recover tbe amount paid for bis principal.” (79 N. Y., 420.)

Howard bad promised to ■ pay a sum of money with and fox Fargo, and a judgment would have fixed the amount of Howard’s liability on his promise to the plaintiff, but it would not have fixed tbe amount of Fargo’s liability to Howard, unless Howard afterward paid the judgment, as a surety cannot i eco ver of bis principal until be has paid in whole or in part tbe sum for which bound, and can only recover the amount actually paid. (Powell v. Smith, 8 Johns., 249 ; Hannay v. Pell, 3 E. D. Smith, 432, 438 ; Elwood v. Deifendorf, 5 Barb., 398.)

In Church v. Howard, a judgment for either party would not enlarge or diminish Fargo’s liability. A judgment in favor of Howard would have left Fargo liable to Church for tbe full amount claimed. A judgment against Howard, and its payment by him, would have left Fargo liable to Howard, instead of to Churchy for tbe full amount claimed, a mere shifting of creditors.

In the case at bar a judgment for or against either party would not enlarge or diminish Goldsmith’s liability, which is $1,013.s2 and interest from April 10, 1884-, on the judgment. Had the plaintiff succeeded, Goldsmith would have become liable to plaintiff for $300 and interest from November 22, 1882, and his liability to defendant diminished by a like amount. The defendant having succeeded, Goldsmith’s liability to defendant is diminished by the' amount that may be realized by the defendant upon the bond and mortgage, a mere shifting of creditors.

In the case at bar the plaintiff had not promised to pay H. H. Sayles & Co. any sum, but had assigned the whole or part of the amount due on the bond and mortgage to secure the indebtedness of Goldsmith to the assignees, and there was no contract between Goldsmith and the plaintiff except the one implied by law, that the principal will indemnify his surety for all sums paid. The issue was, what was the ultimate sum which the plaintiff’s bond and: mortgage were assigned to secure, and the judgment fixes the ultimate sum which plaintiff may pay, and call upon Goldsmith for repayment. Just that, and only that could have been the effect of a judgment in favor of Church against Howard ; and if Fargo, the principal, was incompetent to testify for his surety in that case and .upon that issue, it follows that Goldsmith, the principal, was incompetent to testify for the plaintiff, his surety in the case at bar. Hill v Hotchkin (23 Hun, 414) need not be considered, for it was decided solely upon the authority of Church v. Howard. The judgment should be affirmed, with costs.

HaRdiN, P. J., and BoARdman, J., concurred.

Judgment affirmed, with costs.


text:
    JOHN H. EDMISTON and DAVID J. WADDELL, Respondents, v. GEORGE W. BRUCKER, Appellant, Impleaded with LUTHER MEYERS and Others.

      Chattel mortgage — right of the mortgagee to purchase at a sale thereunder.

    When a chattel mortgage contains a power of sale, and a sale thereunder is fairly made by public auction, upon duo notice to the mortgagor, his equity of redemption is cut off, although the chattels are purchased by the mortgagee. Buffalo Steam Engine Worlcs v. The Sun Mutual Insurance Company (17 1ST. Y., 401) distinguished and criticised, and JPuicer v. Richardson (3 T.. & 0., 436) not followed.
    Appeal from a judgment in favor ■ of the plaintiffs, entered upon.. a verdict directed at the Oneida Circuit.
    The action was brought to recover the amount due upon certain promissory notes.

      Beardsley & Beardsley, for the respondents.

      8. M. Lindsley, for the appellant.
   Follett, J.:

Appeal from a judgment, entered on a verdict directed for the plaintiff at the Oneida Circuit.

^Ihe defendants gave to the plaintiffs four promissory notes, dated December 20, 18S2, for $213.43 each, payable with six per cent interest from August 1, 1883, and exchange. One note was payable September 1,1883 ; one December 1, 1883; one February 1, 1884; and one May 1, 1884. To secure the payment of three of these notes L. Meyers & Co. executed an instrument to plaintiffs, which, in legal effect, was a chattel mortgage upon certain chattels. The instrument authorized the plaintiffs to sell the property in case of default in the payment of any of the notes and apply the proceeds upon the notes. The note falling due September 1, 1883 was paid, and August 1, 1883, seventy-one dollars was paid upon the three outstanding notes, for the recovery of the amount due upon which this action was brought.

In March, 18S4, the plaintiffs gave notice that they would sell the mortgaged chattels at public auction, which notice was posted in three public places in the town where the property was situated and sold, and published once in a daily newspaper published in a city adjoining said town. Seeger, one of the firm of L. Meyers & Co., the mortgagors, had notice- of and attended the sale. The mortgagees purchased at the sale, and applied the net proceeds upon the notes. It is contended by the appellant, that hy reason of their purchase, the mortgagor’s equity of redemption was not cut off, and that the appellant, who was their surety, should have been allowed the value of the property in reduction of the amount due on the notes. The first difficulty is, that the point sought to be raised is not presented by the evidence. The appellant did not offer to show at the trial the value of the mortgaged property at the date it was sold, March 7, 1881, or on any date except at the date of the mortgage, March 3, 1883, which was rejected. In this there was no error, for assuming the sale insufficient to cut off the mortgagor’s equity of redemption, the mortgagees were not liable for the value of the property a year before they sold it.

When a chattel mortgage contains a power of sale and a sale thereunder is fairly made by public auction upon due notice to the mortgagor, his equity of redemption is cut off, though the chattels are purchased by the mortgagee. (Hart v. Ten Eyck, 2 Johns. Ch., 62; Charter v. Stevens, 3 Denio, 33; Patchin v. Pierce, 12 Wend., 61; Olcott v. Tioga R. R. Co., 40 Barb., 179; affirmed, 27 N. Y., 546; Hall v. Ditson, 55 How., 19; S. C., 5 Abb. N. C., 198; Richards v. Holme, 18 How.U. S., 143; Thomas on Mort., 454.)

In the Buffalo Steam Engine Works v. The Sun Mutual Insurance Company (17 N. Y., 401) it did not appear that the mortgagor had notice of the sale, and besides it was said in Olcott v. Tioga Railroad Company (27 N. Y., 566) that the case is not an authority on this question. Pulver v. Richardson (3 T. & C., 436) was decided upon the remark in the Buffalo Steam Engine Works v. The Sun Mutual Insurance Company {supra), and the cases above cited were not called to the attention of the court, and being in conflict with the cases cited, must be disregarded.

The judgment should be affirmed, with costs.

BoabdMAN, J., concurred; HaediN, P. J., concurred in the result.

Judgment affirmed, with costs.


text:
    RICHARD CARTER, Appellant, v. JULIA L. DE CAMP, FLORENCE L. MERRIAM and MARY FISHER, Respondents.

      Demurrer — can only be sustained for a defect specially stated in the demurrer.

    The defendants demurred to tlie complaint, specifying as the sole ground thereof that an equitable cause of action triable by the court, and a legal cause of action triable before a jury, were united. The Special Term sustained the demurrer upon the ground that a cause of action for an injury to real estate, and a cause-of action for the conversion of personal property, could not be united although both causes of action arise out of the same transaction.

      Meld, that as the defect specified in the demurrer was not a ground of demurrer, the court should have overruled it.
    That it could not sustain it because of another defect in the complaint not specified in the demurrer.

      Qumre, as to whether the defect specified by the Special Term was a demurra-ble one.
    Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer to tbe complaint, and from a final judgment entered in Lewis county dismissing the complaint.

      Gurdon G. Shrauder, for the appellant.

      G. D. Adams, for the respondents.
   Follett, J.:

“ The demurrer must distinctly specify the objections' to the complaint.” (Code Civ. Pro., § 490.) In considering a demurrer the court is confined to the grounds specified in it, and a demurrer cannot be sustained upon unspecified demurrable defects appearing upon the face of the complaint. (Berney v. Drexel, 33 Hun, 419; Nellis v. De Forest, 16 Barb., 61, 65 ; 2 Wait’s Pr., 454; Boone’s Code Plead., § 44.) ■ In Nellis v. De Forest (supra), it was held that a demurrer on the ground that the facts stated are insufficient to constitute a cause of action for certain specified reasons, excludes from consideration all other grounds of demurrer arising out of the insufficiency of the facts pleaded. The sole defect in the complaint specified in the demurrer is, that an equitable cause of action, triable by the court, and a legal cause of action, triable before a jury, are united, which is not a ground for demurring. (Code Civ. Pro., § 484; Bradley v. Aldrich, 40 N. Y., 504, 512 ; Lattin v. McCarty, 41 id., 107; Sternberger v. McGovei'n, 56 id., 12.) The Special Term sustained the demurrer upon the ground that a cause of action for an injury to real estate, and a cause of action for conversion of personal property, cannot be united, though both causes of action arise out of the same transaction. Assuming this to be a demur-rable defect, which is not considered (Colton v. Jones, 7 Robt., 165; Polley v. Wilhisson, 5 Civil Pro. R., 135), it was not raised by this demurrer.

The demurrer might as well have been sustained upon the unspecified ground that inconsistent causes of action are united, the first count alleging a cause of action arising upon defendants’ breach of contact, to leave as many and as valuable logs as they floated away prior to May twenty-fifth, and the second count alleging a cause of action for converting the same logs and other logs floated away after May twenty-fifth.

The interlocutory judgment sustaining the demurrer and granting plaintiff leave to plead anew within twenty days upon paying costs, was entered November 11, 1885, and the plaintiff appealed therefrom November 30, 1885. An interlocutory judgment sustaining or overruling a demurrer is appealable to the General Term. (Code Civ. Pro., § 1349 ; Cambridge Valley Nat. Banh v. Lynch, 76 N. Y., 51a) December 24, 1885, defendants filed with the clerk an affidavit stating that more than twenty days had elapsed since the entry and service of the interlocutory judgment, and that the plaintiff had not paid costs, and thereupon a final judgment was entered dismissing the complaint, with costs, from which the plaintiff also appeals, claiming that it was irregularly entered. The record does not disclose whether the defendants’ proceedings were stayed pending the appeal from the interlocutory judgment, nor that a motion to vacate the final judgment for irregularity has been made. Put the question is of no moment, as the final judgment falls with the interlocutory judgment, which is reversed, and, as both parties have slipped in their practice, without costs to either party.

HabdiN, P. J., and Boardmajt, J., concurred.

Judgment reversed, without costs to either party, and demurrer overruled, with leave to defendants to answer in twenty days.


author: Follett, J .:

text:
    THE SINGER MANUFACTURING COMPANY, Appellant, v. GILBERT D. DRUMMOND, Respondent.

      Conditional execution of a bond by a surety — when a failure of'the principal to comply with it is not available, as a defense to the surely, in an action by the obligee.

    One Jones, who was employed by the plaintifl: to sell property and collect money, delivered to it a joint and several bond, executed by himself as principal and by the defendant as surety, conditioned that Jones would pay over to the plaintifl all moneys received by him as its agent. After the bond was executed it was left with Jones, upon the agreement between him and the defendant that it should not be used or delivered to the plaintifl until the father or uncle of Jones executed the bond as a co-surety. The bond which was regular on its face, containing nothing to suggest a suspicion that it was not complete, was delivered to the, plaintifl without being signed by either the father or uncle, and was received by it without notice of the agreement.

      Meld, that the violation of the agreement furnished no defense to an action brought by the plaintifl to recover money collected by Jones and wrongfully appropriated by him to his own use.

      People v. Bostwick (32 N. Y., 445; S. 0., 43 Barb., 9) and Qrimwood v. Wilson (31 Hun, 215) distinguished and criticised.
    Appeal from a judgment in favor of the defendant, entered in the Oneida County Court upon the report of a referee.
    Morell A. Jones was employed by the plaintiff as an agent to sell property and collect money. March 31,1879, Morell A. Jones, as principal, and the defendant as surety, executed a joint and several bond to the plaintiff, conditioned that Jones should pay over to plaintiff all moneys received by him as agent. After the bond had been executed it was left with Jones, upon the agreement between Jones and the defendant that it should not be used or delivered to the plaintiff until the father or uncle of Jones executed the bond as co-surety. The bond was delivered to plaintiff without having been executed by either the father or uncle. The plaintiff had no notice of the secret agreement between Jones and defendant; the bond was regular on its face, and there was nothing to suggest a suspicion that it was not complete, or that it was to be executed by another. Jones collected and wrongfully appropriated to his own use $487.35 of plaintiff’s money, for the recovery of which this action was brought on the bond. The sole defense was, that the bond was delivered in violation of the agreement between tlie principal and surety, and tliat tlie surety was not bound.
    Tlie referee held that the agreement was a good defense, and ordered judgment for tlie defendant, which was entered; from which the plaintiff appealed.

      William Townsend, for the appellant,

      Seriptwre c& Backus, for the respondent.
   Follett, J .:

The judgment in this ease was ordered upon the authority of People v. Bostwick et al. (43 Barb., 9; affirmed, 32 N. Y., 445), and Grimwood v. Wilson (31 Hun, 215).

In People v. Bostwick et al., Bostwick, one of the obligors, did not defend, and it was proved by the defending obligors that they executed the bond upon condition that it should be executed by Dickinson before delivery. The report of the case (43 Barb., 12) shows that “ he (Bostwick) told the auditor (who accepted the bond) that Dickinson would call and sign the bond, and the auditor replied that it was good enough as it was.” In that case the auditor had notice that another person was to sign, -which was sufficient to put him upon inquiry as to the rights of those who had signed. In Russell v. Freer (56 N. Y., 67) the defendants executed a bond to secure the faithful discharge of the duty of a deputy collector of internal revenue to his principal. "When defendants executed it the name of James Dolson was written iu the body of the bond as a co-obligor, and they executed and delivered it to the deputy, upon the expectation that it was to be signed by James Dolson before delivery to the collector. Subsequently James Dolson’s name was stricken from the bond without defendant’s knowledge, and in this condition delivered to the obligee.

It was held that these facts constituted no defense, upon the ground that defendants, by executing and leaving the bond with the deputy, placed it within his power to deliver it as a valid and complete instrument; and that it was a case for the application of the maxim that when one of two innocent parties must sustain a loss from the wrongful act of a third, the loss must be borne by the one who has enabled the wrong-doer to commit the act. This case wat decided upon the authority of Dair v. The United States (16 Wall., 1), and State v. Peck (53 Me., 284), both of which criticise People v. Bostwick. Judge Grover, in speaking for the court in Russell v. Freer (all concurring), said that it may well be questioned whether People v. Bostwick was well decided. In Grimwood v. Wilson (supra) an undertaking, o-n appeal to the Court of Appeals, was executed by one surety upon condition that another surety should execute it, which the appellant and principal obligor in the undertaking failed to have done, but filed it as executed. Section 335, authorizing undertakings on appeal, provided that they must be executed by “ at least two sureties.” The court held the surety was not liable upon the ground that the obligee was presumed to know the law, and that the circumstances were sufficient to put him to an inquiry as to whether the surety executing it consented to assume the whole responsibility. Neither of the cases relied upon control the case at bar. In this case the bond was perfect on its face as found by the referee and as it appeal’s to us upon an inspection of the original. The obligee was without notice that it was executed conditionally and without knowledge of any fact which should have put him upon inquiry, and under such a state of facts we think he was bound. (Dair v. The United States, 16 Wall., 1; Butler v. United States, 21 id., 272; Richardson v. Rogers, 50 How. Pr., 403; Tidball v. Halley, 48 Cal., 610; State v. Peck, 53 Me., 284; Murfree on Bonds, §§ 44, 166.)

In many cases an agency is implied by law from the relation of parties or from necessity. (Story’s Ag., §§ 58, 89.) When several joint and several obligors entrust one of their number with the possession of a bond, perfect in form and substance, which is accepted and acted upon by the obligee in good faith and without sufficient notice to cause a prudent man to inquire into the circumstances of its execution or to suspect the existence of collateral infirmities, the obligors will be presumed to have authorized its delivery and estopped from proving the contrary. Bonds in legal proceedings, by trustees, guardians, public officers and by private individuals, have become important and necessary instruments without which public and private business cannot well be carried on ; and a rule requiring obligees to have a delivery from all of the obligors or run the risk of having the security destroyed by secret •oral agreements between tbe obligors, will- be productive of great •embarrassment in public and private affairs.

The judgment is reversed and a new trial granted, with costs to abide the event.

HaediN, P. J., and BoakdMAN, J., concurred.

Judgment of Oneida County Court reversed and a new trial ordered in that court, with costs of the appeal to abide the event.


author: Hardin, P. J.:

text:
    JACKSON S. CARPENTER, Appellant, v. MARGARET CARPENTER, Respondent.

      ■Covenant by a woman to release Tier right of dower — when it may be enforced by a purchaser from the husband — what facts will support an action to remove a cloud upon title.

    One Azel Carpenter and the defendant, being about to many, entered into a written agreement under seal which provided that Carpenter should pay, or cause to be paid to the defendant the sum of $2,000 at his decease, the defendant agreeing to receive and accept the said sum in full satisfaction of her dower right to the property of Carpenter as his wife or widow, and agreeing, if necessary, to execute a full discharge or release of her said dower right on payment of the said sum. After the marriage of the parlies to this agreement Carpenter died, leaving the defendant him surviving, to whom he had, during his lifetime, paid the said sum of $2,000 in full satisfaction of said agreement. After the marriage Carpenter conveyed a parcel of real estate by a warranty •deed to the plaintiff. After the death of Carpenter the plaintiff demanded of the defendant that she execute a release of her dower in the said premises, which she refused to do in any manner. Thereafter the plaintiff brought this action to compel the defendant to execute a proper release of her dower to thé end that the plaintiff’s title might be dischai’ged from the cloud resting thereon.

      Held, that the court erred in dismissing the complaint upon the ground that these facts did not show any cloud upon the plaintiff’s title that a court could remove, and that they did not constitute a cause of action authorizing equitable relief.
    That the covenant in the agreement ran with the land conveyed to the plaintiff and that the plaintiff was entitled to maintain the action to enforce its specific performance.
    That the refusal of the defendant to execute a release was tantamount to an assertion on her part that she claimed dower in the premises, and that as the defense would rest partially on parol evidence, a court of equity should grant equitable relief.

      'Wood v. Seely (32 N. Y., 114) followed.

      Appeal from a judgment, entered in Herkimer county upon the trial of the action at a Special Term held on the 30th of June, 1885.
    As a conclusion of law it was found by the trial judge: “ That the proofs in this case do not show any cloud upon the plaintiff’s title that a court can remove by the exercise of its equitable jurisdiction. Second. That the facts proven do not constitute a cause of action authorizing equitable relief.”
    On the 20th of September, 1866, Azel Carpenter entered into a written and sealed agreement with the defendant, which contained the following provision: “ That whereas, a marriage is about to be had and solemnized between the said parties, and the said party of the first (Azel Carpenter), being desirous of making suitable and proper provision for said party of the second part, and in consideration of said marriage the said party of the first part doth hereby promise and agree that if the said marriage shall be solemnized as aforesaid lie will pay, or cause to be paid, to the said party of the second part the sum of two thousand dollars at the decease of the said party of the first part; and the said party of the second part, in consideration of said sum of two thousand dollars and of said marriage, doth hereby promise and agree to receive and accept of said sum of two thousand dollars in full satisfaction of her dower right to the property of said party of the first part, as his wife or widow, and the said party of the second part agrees, if necessary, she will execute a full discharge or release of her said dower right on the payment of said sum of two thousand dollars.
    “This agreement is tobe binding on the parties thereto, and on their or either of their legal representatives.
    “ In witness whereof, the parties have hereunto set their hands and seals the day and year first above written.
    “AZEL CARPENTER. [l. s.]
    “ MARGARET MUMEORD. [l. s.]
    “ In the presence of L. I. Bueditt.”
    After such instrument was executed, and prior to June 3,1873, the parties thereto intermarried. On the 3d day of June, 1873, Azel Carpenter was the owner of the real estate described in the complaint, situated in the town of Norway, Herkimer county, and on that day he executed a conveyance of the said premises to the plaintiff, being an ordinary warranty deed. On the 19th of June, 1876, Azel Carpenter died leaving the defendant, his widow, him surviving. It is found as a fact, that: “ Said Azel Carpenter, during bis lifetime, paid to the defendant the said sum of 'two thousand dollars in full satisfaction of said agreement;” also, that “after thé death of said Azel Carpenter, which occurred June 19, 1876, and about the 2d day of March, 1880, the plaintiff demanded of the defendant that she execute a release of her dower in said premises, which she refused to do in any manner.”
    In defendant’s answer she “ denied the performance of said agreement on the part of said Azel Carpenter.” The complaint avers, “that on or about the 2d day of March, 1880, the plaintiff demanded of said defendant that she execute a release of her dower interest in and to the real estate described; .that she refused to execute said release, and refused to release her dower interest in said real estate in any manner.” That allegation of the complaint is not denied.

      Charles J. Palmer, for the appellant.

      M. S. Cook and George W. Smith, for the respondent.
   Hardin, P. J.:

Inasmuch as Azel Carpenter, in his lifetime, was seized of the premises in question and died leaving his widow, the defendant* him surviving, she was presumptively and apparently entitled to a dower interest in the premises. “ Her dower right was an absolute right, which was assignable.” (Payne v. Becker, 87 N. Y., 153; Pope v. Mead, 99 id., 204.) Such dower interest, although before assignment a mere right or chose in action (Tompkins v. Fonda, 4 Paige, 448), was a cloud upon ilie plaintiff’s title. After the defendant received payment of the $2,000 mentioned in the anti-nuptial agreement, she was under an absolute obligation to- “ execute a full discharge or release of her said dower right.” She so obligated herself in the covenant inserted in the anti-nuptial agreement. That covenant ran with the land and passed by the conveyance executed by the husband to plaintiff. (Dolph v. White, 2 Kern., 301; Trustees of Watertown v. Cowen, 4 Paige, 510 ; Beddoe's Exrs. v. Wadsworth, 21 Wend., 120.) Plaintiff is entitled to maintain this action to enforce a specific performance of the defendant’s agreement. (Malins v. Brown, 4 Comst., 403.) It appears by the averment in the complaint, not denied by the answer, and by the finding of the trial judge, that she refused to execute a release when proper demand was made upon her for that purpose. We are inclined to think that such refusal is tantamount to an assertion on her part that she claimed dower in the premises. To maintain an action for dower the defendant would only be required to prove that she was the widow of Azel Carpenter and that he had been seized during coverture, and to defeat such an action it would not' have been, sufficient for the plaintiff to produce the anti-nuptial agreement. In addition thereto he would have been called upon to prove by parol the payment of the $2,000 mentioned in the anti-nuptial agreement; because he would thus be obliged to make proof by parol, he had a right to bring an action in equity, and a court of ■equity had jurisdiction to give the proper relief. ( Wood v. Seely, 32 N. Y., 114.) In considering a similar question to the one now before us the conclusion was reached in that case, that a court of equity had jurisdiction to give relief in a case where the defense to a claim of dower would rest partially in parol evidence and it was said, viz.: Evidence which exists only in the memory of living witnesses, who may be removed from life in the natural course of events before the defendant proceeds to assert her claim by an action in the courts. To purchasers and all others who may be led to examine the title to the lands, the cloud will be patent and apparent, while the means of removing it will not be manifested. The plaintiff not only anticipates an injury from the pretentions and attitude of the defendant, but he actually suffers one in the prejudice to his title. I arrive, therefore, at the conclusion that upon the principle of the cases referred to, the plaintiff is entitled to maintain this action.” In delivering the opinion of that court, Chief Judge Dismo observed, viz.: “ But in the absence of such an action he was not obliged to remain passive until the defendant should move. The allegations upon which his equity is based rest upon the oral testimony of a witness who may die or whose testimony it may hereafter be impracticable to procure. In such cases the party expecting to be challenged may take the initiative by bringing an action in the nature of a bill quia timet.” (Scott v. Onderdonk, 14 N. Y., 9; Fonda v. Sage, 48 id., 173, follows and approves of the doctrine of Wood v. Seely.)

From the quotation thus made from the opinion in Wood v. Seely it is apparent that the trial judge fell into an error in supposing that the doctrine of Scott v. Onderdonk stood in the way of the plaintiff’s right to maintain this action. That case recognizes the doctrine that where a party must prove, by parol, facts to establish his defense or to make out his right to remove a cloud upon its title as it is said in the language of Desiio, judge, “ the party is not compelled to take the hazard of a loss of his evidence, but may, while it is attainable, call the party holding such a document into court and have the matter determined at once so that the cloud upon his title may be dispelled.”

Judge Denio, in his opinion in Heywood v. The City of Buffalo (14 N. Y., 540), recognizes the same doctrine, where he approves of the decision in the court below, on the ground that it appeared •on the face of the proceedings that the tax was illegal, and, therefore, the plaintiff could not be injured by the apparent cloud. In stating the ground for equitable interference, and of the jurisdiction of a court of equity in regard to such cases, Judge Folger, in Marsh v. The City of Brooklyn (59 N. Y., 281), says, viz.: “ "When the claim or lien purports to affect real estate, and appears on its faceto be valid when the defect in it can be made to appear only by extrinsic evidence, which will not necessarily appear in proceedings by the claimant thereof to enforce the lien, there is a case presented for invoking the aid of a court of equity.” This doctrine was approved in Guest v. The City of Brooklyn (69 N.Y., 514), and the same doctrine was asserted by Earl, J., in Townsend v. The Mayor (77 N. Y., 542), where he says, viz.: The law generally concerns itself only with actual wrongs, and not with such as are merely potential. But there are some exceptions to this rule. Courts will, under certain circumstances, entertain actions to remove a cloud upon title to land, to prevent future harm. It is not sufficient that there is a formal title or lien creating the cloud.' Where the cloud is claimed to be created by a lien, the lien must be apparently valid, and must exist under such circumstances that it may in the future embarrass or injure the owner or endanger his title.”

The same doctrine is approved in Schroeder v. Gurney (73 N. Y., 435), in the language of Miller, J., who said that fhe case then before the court “does not come within the rule that relief will be granted by a court of equity where extrinsic evidence,, which will not necessarily appear in the proceedings by the claimant to enforce the lien, is required to show the invalidity of an instrument, which-constitutes an apparent cloud upon a title.”

It was said in Field, v. Holbrook (14 How., 106) that equity takes jurisdiction and gives relief “ where the plaintiff claims to have a defense valid in law, but which rests upon evidence which he is in danger of losing, if the adverse party is suffered to delay the prosecution of his claims.”

In Miner v. Beekman (50 N. Y., 337) Judge Greover says, viz.: “It is a right inherent in the owner of the fee to have clouds removed, and apparent but not real incumbrances discharged of record at all times.”

W e are of the opinion that the facts and circumstances disclosed upon the trial were entirely adequate to bring the plaintiff’s action within the equity jurisdiction of the court, and therefore the trial judge erred in dismissing the plaintiff’s complaint. It seems the refusal of the defendant to execute a release under the admissions in the pleadings and facts found by the trial judge should be treated as equivalent to an assertion of dower in the premises owned by the plaintiff and described in the complaint. It seems, also, the case made at the trial was such a one substantially as is referred to in sections 1647, 1648 and 1649 of the Code of Civil Procedure; Upon a second trial the facts and circumstances attending the defendant’s refusal to execute a release may be made to more fully appear, and whether or not she has actually asserted her right to dower in the premises by claiming the same before the commencement of this action, may bear upon the question of costs. Upon that subject, however, we find no occasion to express an opinion. Suffice it to say that we are of the opinion that the trial judge erred in dismissing the plaintiff’s complaint and finding as a conclusion of law, viz., “ that the facts proven do not constitute a cause of action authorizing equitable relief.”

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

Boardman and Follett, JJ., concurred.

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


text:
    CHARLES W. CRONK, Respondent, v. ELVIRA F. WILSON, Appellant.

      •Construction of a deed— when parol evidence is admissible to aid in its construction— when courses and distances must yield to monuments.

    This action was brought to recover damages for an alleged breach of the covenants of warranty and quiet enjoyment contained in a deed executed by the defendant on September 1, 1881, by which she conveyed to the plaintiff “all that tract or parcel of land situate in the village of Canastota, Madison county, N. Y., on'the east side of North Main street, in said village, and described as follows: Beginning at the south-west corner of the lot hereby conveyed, and running thence northerly along the east line of North Main street, seven rods, to the south line of a lot owned by first party, known as the ‘Rose property’ (so called); thence easterly, nine rods three and one-half feet, to a point seven rods and three feet north from Lewis street; thence southerly seven rods and three feet to the north line of Lewis street, at a point six rods and twelve feet east of North Main street; thence westerly, six rods and twelve feet, to the east line of N orth Main street, being the place of beginning. Bounded on the west by the east line of North Main street, on the north by the above mentioned Rose property (so called), on the east by land of Henry Taylor and on the south by . north line of said Lewis street.”
    The plaintiff claimed to recover damages because of his alleged eviction from a gore of land lying along Taylor’s west line, which he claimed was included within the measurements and was conveyed by the deed. It appeared that Taylor was in possession of the lot, adjoining on the east that conveyed to the plaintiff, under a deed from the defendant executed in May, 1881; that at the time of the plaintiff’s purchase he was cultivating’ and using the said gore of land; that there was no fence between the two lots on Taylor’s west line; that the plaintiff and the defendant attempted to survey the lot and measure the lines thereof, and that from their data the description was prepared. The court directed a verdict for the plaintiff for damages for the gore of land which had been conveyed to Taylor.

      Held, that evidence of the facts and circumstances relating to the negotiations, and the taking of the deed and the occupation of the premises, were properly received in evidence to aid in the construction of the deed.
    That upon the parol evidence given of such facts and circumstances, coupled with tiie description in the deed, it was error to hold, as a matter of law, that the plaintiff was entitled to recover.
    That a fair interpretation of the description used in the deed of the defendant to the plaintiff, in the light of the surrounding circumstances and the parol evidence given, would tend to the conclusion, as a question of fact, that the defendant did not assume or intend to convey any portion of the Taylor lot to the plaintiff.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury in Madison county, for sixty-four dollars-damages.
    The action was brought to recover damages for an alleged breach of the covenant of warranty of title and quiet enjoyment contained in a deed executed by the defendant on the 1st of September, 1881, to the plaintiff, conveying a parcel of land in the village, of Canastota, situated on the north-east corner of Main and Lewis streets, in that village. The description contained in the deed, was as follows: “ All that tract or parcel of land situate in the-village of Canastota, Madison county, New York, on the east side of North Main street, in said village, and described as follows: Beginning.at the south-west corner of the lot hereby conveyed, and running thence northerly along the east line of North Main street seven rods to the south line of a lot owned by first party, known as the ‘ Rose property ’ (so called); thence easterly, nine rods three- and one-half feet, to a point seven rods and three feet north from Lewis street; thence southerly, seven rods and three feet, to the north line of Lewis street at a point six rods and twelve feet east of Noi’th-Main street; thence westerly, six rods and twelve feet, to the east line-of North Main street, being the place of beginning. Bounded on the west by the east line of North Main street, on the north by above mentioned £ Bose property ’ (so called), on the east by land of Henry Taylor, and on the south by north line of said Lewis-street.”
    The plaintiff claimed that he had been unable to get possession of a gore of the land described- within the measurements of the deed lying along Taylor’s lot, because it was occupied and claimed by him under a prior deed from the defendant.
    When the plaintiff rested the defendant moved for a nonsuit, upon the grounds:

      First. That the complaint did not state facts sufficient to constitute a cause of action.

      Second. That the] plaintiff admits that he is in possession of all the land which the deed conveys, and upon the ground that the plaintiff has not shown that he has been evicted or ever dispossessed of the premises or of any land described in the grant.
    The motion was denied and the defendant excepted.

      At the close of the defendant’s evidence, the defendant renewed his motion for a nonsuit on the same grounds as before stated. The court denied the motion and the defendant excepted. “ Court then directed the jury to find a verdict for the plaintiff, and to assess his damages at sixty-four dollars,” to which direction the defendant’s counsel duly excepted. The defendant’s counsel then requested the-court to direct the jury to find for the defendant no cause of action, which the court declined, and the defendant’s counsel duly excepted.
    By the evidence it appeared that on the 21st of May, 1881, the defendant conveyed to Henry H. Taylor, by deed recorded on the 24th of May, 1881, a village lot of fifty feet front and rear, bounded as follows: “ Beginning at Mrs. Lightheart’s south-west corner on Lewis street, thence westerly on Lewis street fifty feet; thence northerly parallel with the west line of Mrs. Lightheart’s lot to the south line of the Bose lot (so called), about 118 feet; thence easterly along the south line of said Bose lot to the north-west corner of Mrs. Lightheart’s lot fifty feet; thence southerly on (her) Mrs. Lightheart’s west line to the place of beginning, be the quantity more or less.”
    It was shown that Mrs. Lightheart took title from Thomas Barlow June 18,1880, and that her deed was recorded July 29, 1880. The case shows that it was conceded, as a matter of fact, that Taylor was in possession of his lot at the time the Wilson deed to Cronk was delivered. It was admitted that at the time of the conveyance-by Wilson to Cronk the property marked Bose lot was owned by Wilson. Plaintiff then testified “ that at the very time he purchased Taylor was cultivating the land covered by the gore on the-map, having planted it to corn and potatoes, and was living in the-house on the lot. ‘ I had no knowledge of the line except as Mr. Wilson pointed and measured;’ that there was then no fence on Taylor’s west line; that Taylor built a board fence there in February or March, 1882, which has been there ever since, and that Taylor and William Bullard had possessed the property up to the commencement of this action.” He also testified that prior to the purchase he and the defendant’s son took a tape line and undertook to ascertain the boundaries of the lot proposed to be purchased by him.
    In connection with John H. Wilson, the defendant’s son, he testified that the son pointed out the line, and it came to the northeast corner next to Mrs. Liglitheart’s, and that he took down the measurements and that they were put into the deed. John H. Wilson was sworn, and he sa,ys that “ they ran north from Lewis street to the Rose line, as nearly parallel to the east line of Taylor’s lot as possible; that he thought they ran west of Taylor’s house as much as fifteen feet or more, and parallel with the east and west lines of the house; that this course measured seven rods and three feet, and ran to the Rose fence on the south line of the Rose lot; that there was no mark on the Rose fence which indicated Taylor’s north-west corner; that Wilson told Oronk that to determine that point they would have to measure clear through from Taylor’s east line, and then take out the distance across Taylor’s lot; that the width of Taylor’s lot was then mentioned as being forty or fifty feet wide; that in measuring the third line, the nine rods, three and one-half feet, they commenced at Taylor’s north-east comer and measured through to the fence on the east side of North Main street; that they then measured the line on North Main street, Wilson holding the ring at the north-west corner of the lot, and Cronk going ahead and measuring off six rods; that Wilson then measured off another rod, •commencing where Cronk said the end of the six rods came, and that the seven rods came to the fence on the north side of Lewis street; that there was then a fence on three sides of the lot in •question, and that it measured just seven rods between the Rose fence and the fence on the north side of Lewis street; that the •defendant, his mother, went down and executed the papers with the plaintiff, and that she knew nothing about the measurements.”

      J. C. Fowler, for the appellant.

      Forbes, Brown & Tracy, for the respondent.
   Hardin, P. J.:

Upon the trial both parties gave evidence of facts and circum stances relating to the negotiations for and the taking of the deed and the occupation of the premises. Apparently neither side •objected to such evidence being received in aid of the construction to be givenjo the deed in question.

In Atkinson v. Cummins (9 How. [U. S.], 479) it is held, viz.: "In all cases where a difficulty arises in applying the words of a will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be granted or devised.”

In Pritchard v. Hickes (1 Paige, 273) the chancellor says, viz.: Where the subject of the devise or legacy is described by reference to some extrinsic fact, extrinsic evidence must be resorted to for the purpose of ascertaining that fact, and thus to ascertain the Bubject of the lestator’s bounty.”

That case was referred to by Judge AlleN with approbation, in delivering his opinion in Mason v. White (11 Barb., 187), where he says, viz.: “Were this a question upon the construction of a devise, or of a deed inter partes, it is possible that evidence of intent might be received to control the application of the description of the subject-matter of the devise or grant.”

In Pettit v. Shepard (32 N. Y., 103) it was held, viz.: “ When the description of land conveyed by deed is vague and uncertain, parol evidence of the intention of the parties as to the real boundaries is admissible. Parol evidence is admissible, not to contradict or vary the deed, but to identify the subject-matter.” Campbell, J., says: “ The evidence was not given to vary or contradict the deed, but to'identify the subject-matter, and to show what the grantor intended by ‘the west half of lot No. 76.’ In this view the evidence was rightly admitted. It tended to show the location and boundaries of the piece of land which the grantor intended to convey, and did convey, by the description, or rather the designation, ‘ the west half of lot No. 76.’ ” lie further added, that after that evidence was received there was a question of fact proper for the jury.

In Green v. Collins (86 N Y., 254), Pettit v. Shepard is referred to approvingly as sanctioning parol evidence to ascertain what the grantor intended by “ general designation of a particular portion ” of land conveyed.

In Barclay v. Howell's Lessee (6 Pet. [U. S.], 499) it was said, viz.: “The right of the court to decide on the legal effect.of written instruments cannot be controverted; but the question of boundary is always a matter of fact for tbe determination of tbe jury.”

Judge McLean says in bis opinion: It is tbe province of a court to instruct tbe jury tbat they should fix tbe boundaries of tbe tract in controversy by an examination of tbe whole evidence, and tbat artificial or natural boundaries called for, control a call for course and distance. But it would withdraw tbe facts from tbe jury if tbe court were to fix the boundaries called for, and then determine on tbe legal effect of tbe instrument. * * * It is as much tbe province of a jury to determine the limits of a lot in a city or town, as tbe limits of any tract of land, however large or small. And if tbe court on a question of boundary may fix tbe limits of tbe grant, and then say what tbe legal effect of it shall be, there is-nothing left for tbe action of tbe jury.”

In Wendell v. The People (8 Wend., 190) it is said, viz.: Where there is nothing in tbe conveyance to control tbe call for course and distance, tbe land must be run according to tbe course and distance given in tbe description of tbe premises. But all grants or conveyances are supposed to be made with reference to an actual view of tbe premises by tbe parties thereto, and it is, therefore, a general rule in tbe construction uf grants, tbat both course and distance must give way to natural or artificial monuments or objects, and courses must be varied and distances lengthened or shortened, so as to conform to the natural or ascertained objects or bounds called for by tbe grant. (Dogan v. Leekright, 4 Hen. & Munf., 125; Doe v. Thompson, 5 Cow., 371; McIver's Lessee v. Walker, 4 Wheat., 444.) And any visible or defined object, fixed upon by the terms of the grant as tbe boundary or locative call of the premises, such as a marked tree or clearing, tbe corner of a lot or tbe land of another person which is certain and notorious, must be adhered to in tbe location of tbe grant, although it does not correspond with tbe course, distance or quantity, which must all give way to such known boundaries.” This case was approved and followed in White v. Williams (48 N. Y., 344).

In Brookman v. Kruzman(94 N. Y., 276), Ruger, C. J., says; Tbe long established rules with reference to tbe construction of descriptions contained in conveyances, require courts to adopt such an interpretation thereof as shall give effect to tbe instrument according to tbe intention of the parties, if that is discoverable from legitimate sources of information. (Jackson v. Clark, 7 Johns., 217; Buffalo, W. Y. and Erie R. R. Co. v. Stigeler, 61 N. Y., 348.) In giving effect to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located. (Hathaway v. Power, 6 Hill, 454; Wendell v. People, 8 Wend., 189; Loomis v. Jackson, 19 Johns., 452.) It was said in Robinson v. Kime (70 N. Y., 154) that a conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course or distance, and any particular may be rejected if inconsistent with other parts of » the description and sufficient remains to locate the land intended to be conveyed. The rule that a monument controls other portions of the description in a deed is not inflexible, when the monument is repugnant to another of' like character, or a map gives other results j the truth is to be ascertained from all the facts of the case. (Townsend v. Hayt, 51 N. Y., 656; Higinbotham v. Stoddard, 72 id., 94.) ”

Towards the close of the description in the deed under consideration words were used apparently with the intent to bound the property by surrounding objects. The language is as follows: Bounded on the west by the east line of North Main street, on the north by the above mentioned Rose property (so called), on the east by land of Henry Taylor, and on the south by north line of said Lewis street.”

It must be borne in mind that the defendant had conveyed the lot to Taylor, about four months preceding the execution of the conveyance to the plaintiff. Taylor had gone into possession of it, was occupying the house situated on the lot, and was cultivating the land, and these facts .were known to the plaintiff and to the defendant at the time of the execution of the deed in question, and it is fair to assume that the parties, in the use of the words “ on the east by land of Henry Taylor,” intended to adopt Taylor’s west line of ownership as the east line of the land to be conveyed to the plaintiff. It is reasonable to interpret the word “ land ” as synonymous with “ lot ” or “ parcel.”

A somewhat similar description was the subject of consideration in Northrop v. Sumney (27 Barb., 196). In that case Judge Marvin, speaking for the court, said, viz.: “ The point is made and argued that the description in the deed from Shaw to the defendant included the land to the south fence, and that as the defendant had been ejected from twenty-seven and one-fourth acres of the land, the covenants of his grantor have been broken, and the defendant may recover his damages and may, therefore, now have them abated from the bond and mortgage. This position cannot be sustained. The southern boundary, as described in the deed from Shaw to the defendant, is “ by land heretofore deeded to Clark Hilton.” The north line of the land conveyed to Ililton was susceptible of certain ascertainment, and it was the south line of the land conveyed to the defendant as described in the deed. Distance and quantity must yield to this line, which could be located with certainty: In a case not reported the Court of Appeals held that a line described as parallel with the line of the lot must be so located, though such location would violate the description as to course and distance. * * * By all the well settled general rules of construction relating to descriptions in deeds, the land conveyed extended no further south than to the land previously conveyed to Hilton. The least certain and material parts of the description must yield to those which are most certain and material, if they cannot be reconciled. (4 Kent’s Com., 466.) In this case the lengths o.f the east and west lines and the estimated quantity of land must give way to the certain southern boundary. There has been no breach of any of the covenants in the deed from Shaw to the defendant.”

In Townsend v. Hayt (51 N. Y., 656), it was held, viz.: “ That the rule that a monument controls other portions of the description in a deed is not inflexible, but where, as in this case, there is a map giving a different result and the fixed monument is repugnant to another of a like character, the truth is to be ascertained from all the facts in the case.” By the quotation made from Brookman v. Kurzman, it appears that that case was approved. J udge Huger remarks, viz.: When the monument is repugnant to another of like character or a map gives other results, the truth is to be ascertained from all of the facts of the case.”

Andrews, J., in Robinson v. Kime (70 N. Y., 154), says: “ The rule is well settled that a conveyance is to .be construed in reference to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course or distance; and any particular may be rejected, if inconsistent witli the other parts of the description, and sufficient remains to locate the land intended to be conveyed. The Johnson boundary ¡mentioned is in the nature of a monument, and it was competent to show where that boundary was, and also to give parol evidence of the location of the stakes existing when the defendant’s deed was given and referred to in the description, although they could not be found at the time of the trial.” We are of the opinion:

First. That upon the parol evidence of the facts and circumstances given in evidence by the parties, coupled with the description in the deed, it was error to hold, as a matter of law, that plaintiff was entitled to recover.

Second. That a fair interpretation of the description used in the deed of the defendant to the plaintiff, in the light of the surrounding circumstances, and the parol evidence that was given, would tend to the conclusion, as a question of fact, that the defendant did not assume to convey and did not intend to convey any portion of the Taylor lot to the plaintiff.

Third. If the defendant had asked to go to the. jury upon the question we are inclined to think that the court ought to have yielded to such request, but no such question is before us for review. (O'Neill v. James, 43 N. Y., 93; Appleby v. The Astor Fire Insurance Company, 54 id., 253; First Nat. Bank v. Dana, 79 id., 108 ; Mott v. Mott, 68 id., 253.)

Inasmuch as the ruling at the circuit held that the defendant, by warranty deed, conveyed to the plaintiff a portion of the Taylor lot, the possession of which had not been delivered to the plaintiff and could not be by the defendant, and that she was liable to damages by reason of the breach of her covenant, in that regard we think an error was committed, and that a new trial should be.ordered.

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

JBoaedkaN, J., concurred; Follett, J., not sitting.

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