author: Landon, J. Mayham, J. (dissenting.)

text:
    Harriet E. Joslyn, Adm’rx, App’lt, v. George H. Rockwell et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Taxes—Sale—Laws 1885, chap. 448.
    Chap.li't Laws of 1885, provides that deeds by the comptroller, for nonpayment of taxes, after having been recorded for two years shall six months after the act took eflect be conclusive evidence of the regularity of the proceedings. Said act relates to the collection of taxes on lands of non-residents. And where this statute was invoked but defendants proved that the lands were not those of non-residents at the time they were assessed and taxed as non-resident lands, but were in the occupation of their grantors, and further that the taxes were in fact paid, Held, that such proof was a good defence.
    3. Same.
    The non payment of taxes is a jurisdictional fact and not a mere irregularity, and the above statute did not and could not cure a jurisdictional defect; but related only to matters of form in the proceedings.
    3. Same.
    The fact that under this act the owner might within six months have applied to the comptroller to cancel the sale but did not do so is of no importance, if in fact the taxes were paid. An incorrect statement of a jurisdictional fact cannot authorize the state to take away the property of a citizen, and such statement docs not bind him.

      4. Same—Evidence.
    Evidence was given to prove that an assessment roll for a certain year filed in the county treasurer’s office was burned, and that the copy filed in the town clerk’s office had been lost. A copy of the latter copy was admitted. Held, the best evidence which the nature of the case admitted.
    5. Same—Payment oe tax.
    To prove payment of taxes, the collector being dead, the assessment roll was produced and upon the line upon which the assessment and tax were entered appeared the word “ paid” in the collector’s handwriting. It was also shown that it was his custom, upon payment, to make such entries. Held, competent evidence of payment.
    (Mayham, J., dissents.)
    Appeal from a judgment entered upon a verdict of a jury in favor of the defendants.
    The action was for trespass in wrongfully entering upon lands of plaintiff’s grantor and assignor and cutting and converting wood and timber, and for the recovery of treble damage under the provisions of § 1668 of the Code of Civil Procedure.
    The complaint alleges that the defendants were copartners in the lumbering business, and that without leave they entered upon a tract of wild land belonging to Elizabeth Miller and Elizabeth E. Smith, and wrongfully and unlawfully cut and carried away a large quantity of timber and trees standing and growing thereon, and cut said timber and trees into logs, and girdled and stripped and peeled the baric from the hemlock trees and logs, and wrongfully and unlawfully took and carried off from such land and premises such bark and logs without the consent of the owners to their damage of $5,000, and claims judgment under the provisions of §§ 1667 and 1668 of the Code of Civil Procedure for $15,000. '
    The answer denies all the allegations of the complaint, except as therein expressly stated, admitted, or qualified, and on information and belief denies the copartnership and denies any information sufficient to form a belief as to whether Miller and Smith were joint owners, as alleged; also as to whether they conveyed the premises described in the complaint to the plaintiff, and also sold him the claim for damages, as therein alleged.
    The chief controversy on that trial was whether the lands on which the timber and bark was concededly cut, and from which the defendant had taken, or caused them to be taken, were the lands of the plaintiff as described in the complaint.
    The parties respectively introduced the conveyances under which they claimed title to the premises where the timber was cut, and there is much conflicting and unsatisfactory oral evidence bearing upon the question of location.

      James C. Rogers, for app’lt; H. A. Howard (J. S. L.Amoreaux, of counsel), for resp’ts.
   Landon, J.

The plaintiff’s right to recover for the trees cut •and carried away by the defendants depended upon the question whether the intestate had established title to the lands upon which the trees stood. That tide depended upon the validity and effect of two deeds from the comptroller of the state to Grerrit Smith, the first executed in 1856, the second in 1869, the first recorded in the Warren county clerk’s office in 1859, and the second in 1869, both purporting to be made because of the non-payment of taxes assessed upon the lands described therein, which description embraced the locus in quo. The taxes upon the non-payment of which the lands were sold by the comptroller were assessed as upon nonresident lands. The defendants claim title under the comptroller’s deed of 1834, and gave evidence tending to show that at the time the taxes were assessed under which the deeds to Grerrit Smith were given the lands were occupied under the defendants’ grantor.

The learned trial judge submitted the question to the jury upon the evidence whether at the time the assessment was made and levied under which the deeds to the plaintiff’s grantor were given the lands were actually occupied by a Mr. Ralph under Abel French, the defendants’ grantor.

Evidence was given by defendants tending to show that the taxes upon the lands in question were paid before the return was made to the comptroller, under whose deeds the plaintiff claims. The trial judge submitted the question of fact to the jury whether such taxes were actually paid.

The trial judge held and instructed the jury that if the lands were occupied under the owner at the time they were assessed and taxed as non-resident lands, that the taxes were void, and the deeds based thereon also void. And that if the taxes had actually been paid before return of this non-payment was made to the comptroller, his subsequent deeds of the lands were void. The jury found for the defendants.

The plaintiff’s counsel asked the court to instruct the jury that the comptoller’s deeds to Q-errit Smith, under whom plaintiff derived title, having been on record in the clerk’s office of the county in which the lands are- situate over ten years, are under chap. 448, Laws of 1885, conclusive evidence that the assessment was regularly made and levied, and that the sale was regularly made. The court: “Iso charge as to the regularity of the sale, but not conclusive that the taxes were not paid, or were not properly levied.” The plaintiff excepted to the refusal. The court also held that the act in question is not intended to cure jurisdictional defects, but only relates to matters of the form of the proceedings.

We think the rulings of the trial court were right. The plaintiff contended that by virtue of chap. 448, Laws 1885, the comptroller’s deeds under which the plaintiff claims were validated and made unimpeachable either by proof that the lands were occupied or that the taxes had in fact been paid. The act provides that: “ All such conveyances that have heretofore been executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale, shall six months after this act takes effect be conclusive evidence that the sale of said lands and all proceedings prior thereto from and including the assessment of the land, and all notices required by law to be given previous to the expiration of two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act.” This act and the act of 1855, of which it is an amendment, are acts in relation to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes.” Occupied lands are not the lands of non-residents. 1 R. S., m. p. 389, § 3; People ex rel. Barnard v. Wemple, 117 N. Y., 77; 26 N. Y. State Rep., 720. If these lands were occupied at the time the assessment was made and the tax levied they were not lands of non-residents ” and the act in question has no application.

But ,the jury under the charge of the court may have found that the lands were non-resident lands but that the tax was paid. As the comptroller’s deed recites the jurisdictional fact of the nonpayment of the tax, if that recital is conclusive evidence of it any common law evidence that it had been paid was erroneously received and the verdict based upon such evidence cannot be upheld. It is held that the legislature may by statute cure omissions and irregularities in such proceedings in the assessment and levying of taxes as it might have originally dispensed with. Ensign v. Barse, 107 N. Y., 329; 12 N. Y. State Rep., 39. It is also held that the provision in chap. 448, Laws 1885, that the comptroller’s deed “ After having been recorded for two years * * * shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto * * * were xegular,” gave to the taxpayer six months in which to question the regularity of the proceeding and was thus a limitation upon his rights in that respect and barred him from subsequently objecting upon the ground of mere irregularities. People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158_

_ But the fact of non-payment is a jurisdictional fact, and not a mere irregularity in the proceedings. Unless there is default in payment of the tax the comptroller has no jurisdiction to sell the lands. As the legislature could in no cáse authorize the comptroller to sell lands for non-payment of taxes except upon actual non-payment, so- after a sale by him of lands as upon- non-payment, when in fact there had been payment, the legislature, within the cases cited, could not ratify or validate such a sale. -For what the legislature could not originally authorize, it could not subsequently ratify and validate. If, by any refinement of statutory limitations or rules of evidence, the state can ultimately confiscate the property of an individual in a case where it never had jurisdiction to proceed at all, then the constitutional guarantee of due process of law would yield to legislative despotism. As said in Howard v. Moot, 64 N. Y., 268, and repeated in People v. Turner, 117 N. Y., 235; 27 N. Y. State Rep., 158, “ A law that should make evidence conclusive which was not so necessarily and of itself, and thus conclude the adverse party from showing the truth, would be void as directly working a confiscation of property or a destruction of vested rights.”

But the act of 1885 further provides : “ But all such conveyances and certificates and the tax sales and taxes on which they are based shall be subject to cancellation as now provided bylaw, on a direct application to the comptroller, or in an action brought before a competent court therefor, by reason of the legal payment of such taxes.” It is claimed that the defendants had six months in which to apply to the comptroller or the court for relief against the comptroller’s deed, “ by reason of the legal payment of such taxes,” and having failed to do so the statute of limitations bars their right to rely upon such a defense, and the comptroller’s deed is conclusive evidence that the taxes had not been paid. What has already been said answers these positions. We cannot suppose that the state has power to spoliate the citizen by commanding that its own ex parte declaration of an untruth must be disproved by the victim of it within a short day, whether he has notice or not, or else he must surrender his estate. Estoppel sometimes promotes justice by suppressing the truth, but al-' ways at the expense of him who told the untruth. Clearly, if the state has made a mistake in asserting a jurisdictional fact to the prejudice of the citizen, it cannot, without subverting due process of law, deprive him of the right to show the truth whenever and wherever any attempt to deprive him of his property is based upon the untruth. The recital of a jurisdictional fact in a judgment is only prima facie evidence of it. Ferguson v. Crawford, 70 N. Y., 253.

The individual who pays his tax has the right to rely upon complete exemption from any proceedings against his land as for non-payment. If the collector and county treasurer make false returns, the individual is put upon no inquiry respecting them. It is timely enough ior him to act when he has notice that action is necessary. In the present case it does not appear that the defendants had'any such notice except by the commencement of this action.

The proper office of a statute of limitations is to put an end to claims which are not asserted within a reasonable time, not to put an end to defenses to such claims. Time is one of the muniments of the possessor’s title and the destroyer of the non-possessor’s claim. We do not think the rule should be reversed so as to make the claim stronger as it becomes staler. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims. Cooley’s Const. Lim., m. p. 366. Here deeds which for more than twenty years were not worth asserting are claimed to be resurrected and validated by statute. But a legislative fiat cannot transfer A.’s property to B. under the guise of confirming invalid tax sales. Cromwell v. McLean, 34 N. Y. State Rep., 85.

The statutes conferring authority upon the comptroller to cancel tax sales are for the protection of the purchaser, not of the taxpayer. The People ex rel. Wright v. Chapin, 104 N. Y., 369; 6 N. Y. State Rep., 837.

Objection was taken to the admission of a copy of the assessment roll filed in the town clerk’s office of the town of Luzerne for the year 1856. Evidence was given tending to show that the roll for that year filed in the county treasurer’s office had been destroyed by fire, and that the copy thereof filed in the town clerk’s office had been lost Such being the case, the verified copy of the copy in the town clerk’s office was the best evidence which the nature of the case admitted. The plaintiff cites People ex rel Wright v. Chapin, 38 Hun, 272. That case did not hold that in no case could the copy in the town clerk’s office be used, but held that if it varied from the original roll in the county treasurer’s office, or from the return made to the comptroller from the original roll, and in case of its loss, the return should prevail. Here no return from the original roll was produced from the comptroller’s office.

Objection is taken to the admissibility of some of the evidence tending to show payment. The assessment roll was produced, the collector was shown to be dead; upon the line upon which the assessment and tax were entered the word “ paid ” in the deceased collector’s handwriting was entered. Evidence tending to show that it was his custom to make such an entry upon receipt of payment was given. We think the entry was admissible. Livingston v. Arnowx, 56 N. Y., 507; Leland v. Cameron, 31 id., 115. Another assessment roll was produced in which was written the word “ paid ” upon the line upon which the description and tax were entered. The collector testified that he made the entry; that he made no such entry except upon payment of the tax, but that he had no recollection of the transaction. This entry also was admissible. National Ulster Co. Bank v. Madden, 114 N. Y. 280; 23 N. Y. State Rep., 220.

Objection is also taken to the sufficiency of the evidence to show that the lands were occupied at the time of the assessment- and tax. We think the evidence sufficient to justify the presentation of the case to the jury. Smith v. Sanger, 4 N. Y., 577.

The judgment should be affirmed, with costs.

Learned, P. J., concurs.

Mayham, J. (dissenting.)

The first three points made by the appellant for the reversal of this judgment' relate to the alleged insufficiency of the answer, and alleged error in allowing the defendants to amend the same on the trial.

We think the answer was sufficient to put the allegation of the plaintiff’s complaint in issue.

Assuming that the defendants’ “denial of each and every allegation in the plaintiff’s complaint contained, except as hereinafter expressly admitted, stated or qualified,” is neither a general or specific denial, and not such a denial as is provided for in the Code, People v. Snyder, 41 N. Y., 400; McEncroe v. Decker, 58 How., 250, and the denial upon information and belief of the copartnership alleged in the complaint is not the form of denial authorized by § 500 of the Code of Civil Procedure, yet as no motion was made to strike out these defective allegations in the answer or for judgment on that account, and as the second, third and fourth subdivisions of the answer deny any knowledge or information sufficient to form a belief, and each concludes with an express denial of the matters which it purports to answer, the whole answer taken together must be held sufficient to put in issue the allegations of the complaint.

Nor do we think the allowance of an amendment of the answer on the trial error.

Section 723 of the Code of Civil Procedure authorizes the court at the trial to allow an amendment of pleadings in the exercise of a sound discretion where justice will thereby be promoted, Rosenwald v. Hammerstein, 12 Daly, 377, and as the plaintiff in this case made no proof that she was misled to her prejudice by the amendment, it must be assumed that the discretion was properly exercised. Code of Civil Procedure, § 539.

The plaintiff claims title to the locus in quo under two deeds from the comptroller of the state of New York to Grerrit Smith, alleged to have been given on tax sales, one dated the 6th day of March, 1856, and purporting to convey 208 acres conveyed by the following description:

“ Also two hundred and eight acres (208) to be laid out as aforesaid, being the south part of subdivision No. 4 of lot No. 5 in the 25th allotment of Kayaderosseras Patent.”

The other deed bears date the 13th of January, 1869, and purports to convey 150 acres described in the deed as follows:

“ One hundred and fifteen (115) acres, being the north part, seventy-five (75) acres, and west part, forty (40) acres, subdivision No. 4, Lot No. 5, twenty fifth allotment, Kayaderosseras Patent.”

Grerrit Smith by his will devised the lands described in these conveyances, in and by the residuary clause of the same, one-half •to his wife, and one quarter to his son Greene Smith, and one quarter to his daughter, Elizabeth 0. Miller, each taking an undivided interest as above set forth. Gerrit Smith in and by the fifth, or residuary clause in his will, devised and bequeathed all the rest, residue and remainder of his estate to his wife, Elizabeth F. Smith.

Elizabeth S. Miller and Elizabeth F. Smith by quit-claim deed dated the 4th of July, 1886, conveyed to A. Joslyn the land described therein as follows : “ All that parcel or piece of land situated in the county of Warren, state of New York, being forty •acres in the west part, seventy-five acres in the -north part, and 208 acres in the south part of subdivision No. 4 of lot No. 5 in the 25th allotment of Kayaderosseras Patent, also the right to collect damage for past trespass.”

The grantors in the last mentioned deed also conveyed by quitclaim to the grantee therein, on the twenty-second of July, 1886, another piece of land described as follows:

“ All that tract, piece or parcel of land, situated in the county of Warren, state of New York, being the south half of 250 acres in subdivision three (now known as subdivision two, the McOmber lot) lot six, 25th allotment Kayaderosseras Patent. All right to collect damages for past trespasses on the above land is hereby conveyed.”

The plaintiff also put in evidence a warrantee deed from Charles Newcomb and wife to Calvin Joslyn, purporting to convey the equal undivided half part of “ all that certain tract, piece, or parcel of land situate lying and being in the town of Luzerne, and is a part of subdivision No. 4 in great lot No. 5 in the twenty-fifth great allotment of the Kayderosseras patent.”

The lot is further described in this deed by metes and bounds; and as the same lot described in a deed dated December 9, 1865, given by Charles Newcomb and wife to Abner Wright, Jr.

The plaintiff also put in evidence map of the allotment, with particular descriptions of lots No. 4, 5 and 6 in that allotment.

The plaintiff also put in evidence a certificate of sale by the sheriff of Warren county, on an execution against Aaron 0. Murray, Jr., and John Cameron, to A. Joslyn, of all the right, title and interest of Aaron C. Murray and John A. Cameron, ór either of them, on the 19th day of Mav, 1887, of, in, and to the real estate described as follows:

The equal undivided one third part of the piece or parcel of land described as follows; here follows a description of the land sold, described as 150 acres, being the same premises conveyed to John A. Cameron by Aaron C. Murray and wife by deed Novem-' ber 9th, 1869.

The defendant claims title through a deed from A Del French, dated October 1st, 1880, who claimed to derive his title from Solomon W. Russell and wife, date April 26th, 1837, who claimed title under two deeds, one from the comptroller of the state dated 11th day of February, 1834, and a quit-claim deed from Peter Smith, dated the 9th of November, 1833.

Neither of these deeds seem to have been recorded. The learned judge at the trial held that the plaintiff by his evidence had made out a prima jade title to all of subdivision 4 and great lot 5 of the 25th allotment of the Kayaderosseras patent on which the alleged trespass was committed; but that prima jade title was attacked by the evidence of the defendant, tending to show that the tax sales to Gerrit Smith through whom the plaintiff claims title were defective, and did not convey a valid title as against French, to whose rights the defendant succeeded under a deed from him.

The plaintiff insists that the sale to Smith was conclusive evidence of Smith’s title and that it cannot be assailed in this action, and that it was error to allow evidence of deeds and other papers offered by the defendant tending to show title in defendants and their grantors, or evidence tending to attack the regularity of the comptroller’s deed to Smith, or of the assessments under which the sales were made for which the comptroller’s deeds were executed to Smith, and that the judge’s charge relating to that subject was erroneous. As we have seen the comptroller’s deeds to Smith were dated, respectively, March 6, 1856, and January 19, 1869, and recorded on the 19th day of March, 1859, and on the 3d day of November, 1869, in Warren county clerk’s office.

It does not seem to be disputed that these deeds cover the land on which this timber was cut; but the contention of the defendants is that the comptroller had no right to sell these lands under the assessment under which he assumed to advertise and sell the same, and that the purchaser at that sale could get no greater title than the comptroller had a right to sell under the assessment, the seventy acres claimed by French, as that was no part of the Murray lot on which the assessment was made.

There is great force in this contention unless all parties are concluded by the comptroller’s deed from attacking conveyances under it by the provisions of chap. 448 of the Laws of 1885, which amends chap. 427 of the Laws of 1855 ; § 65 of that chapter is amended so as to read as follows :

“ Such conveyance shall be executed by the comptroller under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller, and all such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the county clerk in which the lands thereby conveyed are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale, shall, six months after this act takes effect, be conclusive evidence that the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto, and all other conveyances or certificates heretofore or hereafter executed or issued by the comptroller, shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof, from and after the expiration of the two years from the date of recording ■such other conveyances, or four years from and after the date of issuing such other certificates.”

This section then provides that such certificates are subject to cancellation as now provided by law, or direct application to the comptroller.

Section 2 of this amendment makes it applicable to Warren county.

Stronger language could hardly have been employed by the legislature to make such deeds conclusive, after the lapse of two years from the date of recording, than is used in this amendment.

This amendment makes the conveyance conclusive evidence - from and after the expiration of two years after the date of recording of the deed.

The deeds to Smith were recorded in the proper clerk’s office more than two years before the alleged cutting of this timber, and the title under them to the. lands conveyed became absolute in the grantee, and as there does not appear to have been any proceeding instituted before the comptroller under this act to cancel such conveyances we do not see how they can now be assailed collaterally in this action.

Webster defines conclusive in law to be “ that of which from its nature the law allows no contradiction or explanation, an inference which the law makes so peremptory that it will not allow it to be overthrown by any contrary proof however strong.”

If then, as was conceded by the learned judge at the trial, these deeds conveyed the bcus in quo, so that proof of the deeds and the cutting of the timber made a prima facie case for the plaintiff, then the fact that the deeds of Grerrit Smith were properly recorded more than two years before the commission of the alleged trespass made that case which before the act of 1855 was prima facie conclusive, and precluded all inquiry into the preliminary steps leading up to the making of the deed, and indeed all inquiry in an action at law as to whether the deed was upon the lands against which taxes were in arrears.

In other words, so far as these parties were concerned in this action, it gave to the deeds absolute verity, and excluded all inquiry into their regularity, leaving the parties to stand alone upon the deeds. However harshly this may appear to operate upon the rights of the parties, it seems to be the only construction of which that amendment of 1885 is capable.

The object of the legislature obviously was to quiet tax titles, - and cast upon the land owners the burden of moving promptly after the recording of comptroller’s deeds given on tax sales, either before the comptroller, to have the error, if any has been committed, corrected, or by some other method of procedure to correct the error within two years after constructive notice by the recording of the deed, or that the deed shall become conclusive.

That act was in its nature a short statute of limitation, and it would seem that relief must be sought before it attached, or the remedies were lost.

If the act of 1885, under the conditions specified, made the deed to Smith conclusive, then inquiry into the validity of the assessment, and the circumstances under which the comptroller’s deeds were given, was improper and inadmissible, and the receipt of evidence on the trial under the plaintiff’s objections tending to establish that fact was an error.

In the People v. Turner, 49 Hun, 466; 18 N. Y. State Rep., 26; affirmed in 117 N. Y., 227; 27 N. Y. State Rep., 158, the trial ■court excluded evidence offered of irregularities in the assessment to defeat a comptroller’s deed on the ground that the deed was conclusive, and the general term and court of appeals held the decision was correct, and the evidence was properly excluded, and the general term treated the act of 1885 as a short statute of limi-' ■tation, and upon that subject use this language.

“ It will be seen that the statute acted as a statute of limitations.”

And in discussing the same question, Ruger, Ch. J., in delivering the opinion of the court of appeals, after quoting from the section ¡above referred to of chap. 448 of the Laws of 1885, uses this language : “ With reference to the six months’ provision, it operates as to all existing cases as a limitation upon the taxpayer’s right to assert his claim under pre-existing laws, and as to all future cases provides that the lapse of two years from recording shall make that which was before presumptive evidence only conclusive upon the rights of the parties.

“The act seems to be in its principal aspect one of limitation, :and as such is within the constitutional power of the legislature to •enact as affecting future cases, and we think within the settled rule equally within its power as to existing rights.”

It gives in all cases time for the person aggrieved to establish" "his rights unaffected by the provisions of the enactment, but provides that after the lapse of a certain time the comptroller’s deed .shall be conclusive evidence of the regularity of the proceedings upon which it was based.

Legislation of such a character has frequently been held within the constitutional power of the legislature to enact.

Many other questions are raised on this appeal, among which is the other defendants’ right acquired under the conveyances under Trench’s deed through which they claim, which we are not called upon to examine if we hold, as I think we must, that the judge erred in allowing the evidence tending to attack the regularity of the comptroller’s deed to Smith, through which the plaintiffs claim.

Those deeds, as we have seen, cannot be assailed in that manner, and the allowance of evidence for that purpose was error, for which a new trial should be granted.

I think the judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Landon, J.

license: Public Domain

text:
    Mary E. Barley et al., Ex’rs, Resp’ts, v. Luke I. Roosa, App’lt.

      (Supreme Court, General Term,, Third Department,

      Filed February 4, 1891.)

    1. Ejectment—Recovery.
    A complaint described twenty-five acres in a single parcel; the court allowed, without amendment of the complaint, a recovery for eleven acres thereof. Held, proper and that the requirement of Code Civ. Pro. § 1511, that “ the complaint must describe the property claimed with common certainty,” etc., did not conflict.
    2. Deed—Champerty.
    To avoid a grant for champerty the grant must be delivered when the lands are in “the actual possession of a person claiming under a title adverse to that of the grantor.” 3 R. S., 7th Ed., 2196. The .defendant had a title under the mortgagor subject to the mortgage. B. acquired the mortgage title on foreclosure and sold to plaintiffs; this extinguished the defendant’s title. Held, that defendant held, not by an adverse title, but by an extinguished one, and that no case of champerty was made out.
    3. Foreclosure—Mortgage to loan commissioners.
    The provisions of the Code Civ. Pro., § 2387, &c., do hot apply to the foreclosure of a loan commissioners’ mortgage. The latter is regulated by chap. 2 and chap 150, Laws of 1837, and see also State Cons’t., art. 9, § 1, which requires that the capital of this fund shall be preserved inviolate. The provisions of the statutes above cited were devised to enable the state to keep faith with the United States.
    Appeal from a judgment for plaintiff in ejectment.

      William Lounsbery, for app’lt; F. L. Westbrook, for resp’ts.
   Landon, J.

The defendant appeals from a judgment for plaintiff in ejectment, rendered on a trial before the court without a jury-

Both parties claim title under Isaac Lyons, who in 1837 gave a mortgage for $200 to the commissioner of loans of Ulster county upon a parcel of land described by metes and bounds, courses and distances, situate in Marblehead, Ulster county, containing fifty-six and three-quarter acres, less a lot of fourteen acres out of the same, theretofore conveyed to Isaac and Mary Lyons. January 26, 1860, Isaac Lyons conveyed twenty-five acres of mortgaged premises, describing them, to his son, Simon P. Lyons, and also, on the same day, conveyed other parcels thereof, said to be nineteen and one-quarter acres, to his other sons, Michael and John. Simon P. then agreed to assume and pay the mortgage to the loan commissioner as part of the consideration of the deed to him. In 1878, Simon P. conveyed the twenty-five acres to the defendant. Before doing so he paid $100 upon the mortgage in question, and procured from the loan commissioners a release of his twenty-five acres from the lien of the mortgage, thus leaving the portion sold to Michael and John Lyons the principal security for the mortgage. Lucas Barley, in 1878, became the owner of the latter parcel, nineteen and one-quarter acres. Lucas Barley then brought an action against the present defendant, Eoosa, Simon P. Lyons, and the loan commissioners, and recovered judgment therein, adjudging that the release aforesaid is vacated and set aside, and that the said mortgage is not primarily a lien upon the said nineteen and one-quarter acres, but between the said plaintiff, Lucas Barley, and the defendants, Simon P. Lyons and Luke I. Boosa, is a lien and incumbrance on the said twenty-five acres only. Lucas Barley died in 1883, leaving his son, Jacob H. Barley, his sole devisee, and said Jacob died in 1885; the plaintiffs are executors of his will.

Default having been made in the payment of the said mortgage, the loan commissioners foreclosed the same under the statute and made sale of the twenty-five acres February, 1885, to Granville Boice, who in the same year conveyed them to the plaintiffs. The plaintiffs, by their complaint, sought to recover the said twenty-five acres, but the trial court held upon the evidence that the fourteen acres reserved from the loan commissioners’ mortgage was part of the twenty-five acres conveyed by Isaac Lyons to Simon P. and by him to the defendant, and directed a recovery for the remaining eleven acres.

The defendant urges that there was no proof that the lands described in the complaint were part of the premises covered by the mortgage foreclosed. The trial court upon evidence, illustrated by maps of the various parcels, found that eleven acres of the land described in the complaint were embraced in the mortgage. The court in response to the defendant’s requests found what premises were included in the mortgage and what were excepted. We conclude that the parcel not excepted is the parcel for which the recovery was directed, and although it is difficult for us to identify this parcel as part of the mortgaged premises, we assume that the court with the aid of the witnesses who were familiar with the premises was free from the like difficulty.

The defendant further contends that as the complaint described twenty-five acres in a single parcel, a recovery of eleven acres thereof could not be had without an amendment of the complaint. This cannot be so ; the plaintiff can recover to the extent that he makes good his title; the judgment should identify the parcel recovered, thus making it distinguishable and separable from the parcel not recovered. It cannot -be necessary to amend the complaint, since the judgment roll would clearly show not only the parcel recovered, but also, by comparing the judgment with the complaint, the parcel as to which recovery was denied. The cases which hold that the complaint ought to be amended seem to be based upon Holmes v. Seely, 17 Wend., 75. The unsoundness of this case was satisfactorily shown in Vrooman v. Weed, 2 Barb., 330. See Van Rensselaer v. Jones, id., 643; Truax v. Thorn, id., 156. The requirement of § 1511, Code Civ. Pro., that “ the complaint must describe the property claimed with common certainty * * * so that from the description possession of the property claimed may be delivered, where the plaintiff is entitled thereto,” is well enough, though it assumes that the pleader would not otherwise know enough to describe what he claims; but it is not necessary to hold that it forbids the court or jury to describe such part or parcel of the whole as is awarded to the plaintiff.

The defendant further urges that the mortgage sale was void, because the loan commissioners advertised for sale less than the whole premises described in the mortgage and included fourteen acres not embraced in it. The judgment in the action in which Lucas Barley, the owner of the parcel embraced in the mortgage, but excepted from the foreclosure, was plaintiff and the loan commissioners, the defendant and his grantors were defendants, was an adjudication in effect requiring the loan commissioners not to proceed primarily against the parcel embraced in the mortgage and owned by Lucas Barley, and to proceed against the twenty-five acres held by the defendant The former adjudication made the exception proper, and the rights of defendant as to the fourteen acres not covered by the mortgage were protected upon the present trial. The former judgment was a substantial direction to the loan commissioners to foreclose as to the whole twenty-five acres, and we do not think the defendant, a party to that judgment, can complain of a procedure, merely as such, when he is permitted to escape from so much of its results as can unjustly affect him. If the procedure was technically at variance with the statute, it was by virtue of an estoppel of record by which he was bound.

Boice was the purchaser at the foreclosure sale and then sold the premises to the plaintiffs. Defendant claimed to hold the-premises adversely to Boice and, therefore, alleges that Boice’s. deed to the plaintiffs was void for champerty. To avoid a grant, for champerty, the grant must be delivered when the lands are in “ the actual possession of a person claiming under a title adverse to the grantor.” 3 R. S., 7th ed., 2196, § 147. The defendant, had had a title under the mortgagor subject to the mortgage. Boice had acquired the mortgage title, which extinguished the defendant’s title. Whatever claim, therefore, the defendant made to the eleven acres was under an extinguished title, and' not under an existing adverse one. Sayres v. Rathbone; 9 Abb., N. S., 277; Jackson v. Collins, 3 Cow., 89; Jackson v Bush, 10 Johns., 223; Webb v. Bindon, 21 Wend., 99; Cook v. Travis, 20 N. Y., 400. This view also results in disallowing the claim made by defendant under § 1531 of the Code Civil Procedure that the value of his buildings should have cancelled the damages. He did not build any while holding under color of title adversely.”

The plaintiffs took title from Boice to themselves by deed, wherein they are described as executors of the last will and testament of Jacob Barley, deceased. We suppose a grantee can annex any description to his name that pleases him, or that tends to-show that he takes title as trustee for another, however imperfectly he may define the character of his trust The plaintiffs add the like description to their names in the title to this action. They do not sue as executors; the words are a mere descriptio personae. Merritt v. Seaman, 6 N. Y., 172; Stilwell v. Carpenter, 62 id., 639.

The plaintiffs hold the title; the descriptive words added .to their names both in the deed and in the title to this action may be useful hereafter in protecting the rights of the persons they_ were intended to benefit, and the defendant has no valid objection to their use.

The defendant further objects that the foreclosure Oi the loan mortgage was void because no notice was served upon him. If the foreclosure is regulated by the Code of Civ. Pro., § 2387, etc., the objection is valid; if regulated by the special statutes applicable thereto, then it is not. The claim that the Code supersedes the special statutes cannot be valid. By chap. 2, Laws 1837 (3 Edmund’s Statutes, 75), the. state agreed “to receive in deposit for safe keeping its share of the surplus money of the treasury of the United States,” under an act of congress of the preceding year, and pledged the faith of the state for its safe keeping, and for its repayment when lawfully ■ required. By chap. 150, Laws 1837 (3 Edmund’s Statutes, 76), provision was made for the apportionment of such moneys among the several counties, the appointment of loan commissioners, and for the loan of said moneys by the commissioners upon mortgages. Details are prescribed with minute particularity. In case the mortgagor defaults in payment, the act provides that the commissioners “ shall be seized of an absolute and indefeasible estate in fee ” in the mortgaged lands, “ to the uses in this act mentioned,” § 30 giving to the mortgagor the privilege to retain possession until the first Tuesday of February thereafter, on which day the loan commissioners must sell the lands at the court house of the county to the highest bidder. Provision is made for advertising the lands thus to be sold, but not for notice to the mortgagor or occupant. He loses his title by default; the commissioners acquire it for the purposes of a statutory sale; he having the right to redeem -in the interim between default and sale. Thompson v. Commissioners, 79 N. Y., 54; Pell v. Ulmar, 18 id., 139. He knows the tenure of his title, and knows that upon his default his title is gone, and that the commissioners must sell at the time and place fixed by the statute. The provisions of the act of 1837 were devised to enable the state to keep faith with the United States, and although it is a matter of history that the United States practically though not in terms subsequently waived all claim to the money, Benton’s Thirty Years’ View, vol. I, 651, voL II, 38, yet the constitution of the state requires that the capital of the fund shall be preserved inviolate. Art. 9, § 1. It cannot be presumed that the special provisions of the statute for the care and management of this fund are superseded by the provisions of the Code having respect to the foreclosure of ordinary mortgages.

The judgment in the action of Lucas Barley against this defendant and others was entered in April 1883; Lucas Barley died August 13, 1883; August 16, 1883, the attorney for Roosa, one of the defendants in that action and the defendant here, served a notice of appeal. This was permissible under«§ 1297, Code Civ. Pro., but none of the other steps prescribed by that or the following section appears to have been taken. ■ This appeal did not operate as a stay, because of the failure to take the further requisite steps.

Judgment affirmed, with costs.

Learned, P. J., concurs; Mayham, J. takes no part.


text:
    Milton Keech, Resp’t, v. The Rome, Watertown & Ogdensburgh R. R. Co., Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Railroads—Negligence.
    Plaintiff when approaching a railroad crossing stopped and waited for a quantity of cars to be removed therefrom. The road and tracks were side by side at that point, the crossing being an angular one. The engine stopped between plaintiff and the crossing, and upon inquiry by plaintiff he was told that it was all right, to go ahead. On his doing so, the engine, which was automatic, blew off steam and sounded the whistle,- which frightened plaintiff's horse so that it jumped in the ditch and injured plaintiff. The court charged that there was no evidence to show negligence of defendant’s servants independently of the representation made, but that such representation imposed on them the duty to refrain from so operating the engine as to make the crossing less safe than it led plaintiff to think it was. EM, no error; that the representation could not be held to mean only that the crossing was clear, but implied also the control of the engineer over his engine and its instruments of alarming sounds.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict of the jury upon trial at the St. Lawrence circuit.
    Action to recover damages alleged to have been caused by the negligence of the defendant
    On September 14, 1886, the plaintiff was riding in a buggy drawn by one horse on the highway and approaching the grade crossing over the defendant’s railroad just north of the station at De Kalb Junction. The highway and-the railroad tracks south of the crossing lie side by side in converging lines. The plaintiff stopped about 260 feet south of the crossing, which was then occupied by cars that were being sorted and shifted by means of an engine. After waiting about fifteen minutes all the cars had been moved away from the crossing, and the engine backed southerly toward the plaintiff, stopped on the track about, thirty feet nearer the crossing than the plaintiff then was. The plaintiff then called out: “ Is it all right so we can go ahead,” and some one on the engine replied: “ All right; go ahead.” The plaintiff moved forward, and when his horse and buggy came abreast of the engine, being then about forty feet from it and 280 feet from the crossing, the steam suddenly escaped from the pop-whistle, stopped, we'nt off again, then three “ toots ” of the whistle sounded, all in rapid succession. Steam escaped from the side of the engine and partly enveloped the horse. At the first sound of the whistle the horse sprang sideways into the ditch and plunged more with the successive noises; the plaintiff was thrown from the buggy and his leg broken. It appeared that the pop-whistle worked automathjally, and usually when the engine stood still, and that the defendant had given orders to the men operating the engine not to try to control it. The “ toots ” of the whistle were signals that the engine was about to move. It did not appear that the escape of steam from the sides of the engine was controllable.
    The defendant moved for a nonsuit at the close of the plaintiff’s testimony and renewed the motion at the close of the whole tes-. timony, upon the "ground that no negligence on the part of defendant had been shown. Both motions were denied The jury-found for the plaintiff.

      W. A. Dart, for app’lt; G. S. Conger, for resp’t
   Landon, J.

The learned trial judge in effect instructed the jury that there was no evidence tending to show any negligence of defendant’s servants with respect to the engine, regard being had to its use, if considered independently of the representation to plaintiff that it was safe for him to go over the crossing. But that this representation to plaintiff, made by defendant’s servants in charge of the engine, and upon which the plaintiff relied in proceeding to cross, imposed upon such servants the duty to refrain from so operating the engine as to make the crossing less safe than their representation led him to think it was. The learned judge said “ it was their duty, so far as they had control, to so manage the engine that it should not unnecessarily jeopardize the plaintiff, and that if they blew the whistle just as he came opposite them, and it was unnecessary to do so under the circumstances,” the jury might find that the defendant was liable.

This instruction proceeds upon the theory that the defendant was not to be made liable because it made the noises and performed the operations incident to its business, but because having given the plaintiff, who had waited some time to obtain it, an assurance of safety, it was its duty, if it was in its power, to refrain for the moment from unnecessarily doing any act to imperil his safety. This instruction appears to he reasonable, and is within the doctrine of Borst v. Lake Shore & Mich. S. R. R. Co., 4 Hun, 346; aff’d, 66 N. Y., 639.

The defendant contends that the defendant’s servants did no improper act, and omitted no proper one. If the operations of the engine were under their control, they could have suppressed the “pop whistle’’"and the “tooting” of the whistle. If the pop whistle was not under control, but worked automatically, and was liable to go off whenever the engine stood still, these facts were known to the engineer; the plaintiff was not shown to know them; the question would then be whether it was negligence to stop the engine in advance of the plaintiff, instead of in his rear, and tell him to go ahead without regard to the liability of the pop whistle to go off. ‘ The assurance of safety was made without reservation, and implied, we think, the control of the engineer over his engine and its instruments of alarming sounds. We think the case was proper for the jury, and that the defendant has no ground to complain of the manner of its submission.

The defendant’s counsel contends that the fair meaning of the words, “ All right; go ahead,” was that the crossing was clear. We do not think the court could hold that that was its only meaning, or that the jury ought under the circumstances to have held so.

There was slight cause to.charge the plaintiff with contributory negligence, and the verdict cannot be disturbed upon that ground.

The charge with respect to damages was carefully, and, we think, accurately made.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    Maurice E. Viele, Pl’ff, v. William H. Keeler, Def’t.

      Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Will—Devise—Effect of codicil.
    By the will of one T., a portion of his estate was devised to his executors in trust for his three daughters until they became of age; upon that event each daughter was to manage and have the use of her share' during her life, and upon her death such share to pass to her children, if any, if none then to testator’s remaining aforementioned children or their descendants. In a certain contingency named the estate of the daughters was to be enlarged to a fee. A codicil provided that upon the death of the daughter the remainder should go in fee to her child or children and their descendants, and contained no provision respecting the contingency by which the life estate should become a fee. Held, that the disposition of the shares made by the codicil was the latest expression of testator’s will, and prevailed over the disposition contemplated by the will; that the daughters took only a life estate notwithstanding the happening of the contingency provided for in the will.
    Submission of controversy without action.
    Charles D. Townsend, a resident of Albany, N. Y., died on or about January 1, 1848. At the time of his death he was the owner in fee of the land mentioned and described in the agreement for the purchase and sale thereof, made between plaintiff and defendant
    The said Charles D. Townsend left an instrument purporting to be his last will and testament, consisting of his original will and two codicils thereto, which was duly admitted to probate by the surrogate of Albany county, January 18, 1848, as a will of real and personal property.
    By the provisions of the said will the said testator directed that the balance of his estate (which included the premises in question) should be divided by his executors into four equal parts, one of which he gave to his son, the said John F. Townsend, absolutely ; the remaining three-fourths he gave to his executors in trust for the use of his said three daughters, severally, to insure, pay taxes, etc., to collect and apply the income to their several use, and to invest the surplus, etc., of the income of each several share until the daughters should severally attain the age of twenty-one years.
    After attaining the age of twenty-one years, the daughters were severally required to manage their respective shares as the executors had been directed to do, and to receive and appropriate to their own several use, independent of her husband (if married), the net income accruing, during her natural life, therefrom, and at her death her aforesaid share shall pass to her surviving children, but if she leaves no children, then to pass to his other children and their descendants.

      But and in case any of the said daughters should marry, and her husband be found capable and pruden in the management of property, and should treat her and her family with kindness, then and in such case, the testator directed that, in addition to the life estate given her as above mentioned in her said share, she “should have the fee therein, and the absolute property and control thereof in her own several right, exclusively to possess or to dispose of by deed, will or otherwise,” etc., provided, always, that my said executors or executor acting, as aforesaid, in the execution of this will, be'fully satisfied of the existence of such traits of character in her said husband, and shall have first given to such my daughter a wiitten testimonial to that effect, and this they shall have authority to do at any time, as well after as before they have fully executed the other provisions of this will.”
    Such testimonial was executed by the surviving executor as to the husbands of all three daughters in 1872.
    The second codicil to said will is the only one which affects the title to the premises in question, and, so far as material, is in the words following:
    “After my said daughters, Helena, Maria and Sarah, shall severally have attained the age of twenty-one years, it is my will that each shall then have and hold all and singular (the real and personal property), severally apportioned to and belonging to her, according to the several clauses and directions of my aforesaid will, for and during her natural life, to her own separate use, and free from all control, etc., of any husband which she may have, with remainder in fee to her child or children and their descendants, and that she and they may have severally the free and uninterrupted enjoyment of their several portions without molestation.
    “ It is my will that each of them, if married, do possess and enjoy their respective portions aforesaid as if they were femme sole and unmarried,” etc.
    Prior to the commencement of this action, said Maria Townsend intermarried with the said Maurice E. Yiele, the plaintiff.
    In or about the early part of the year 1850, an action was begun for the partition of the real property of which the testator died seized, including the premises in question, and such proceedings were thereafter had that said property was partitioned, and a judgment rendered therein whereby an undivided half of the lot of land particularly described in the agreement hereinafter set forth, was allotted, assigned and set off to said Maria Yiele, and adjudged and decreed to be vested in her for.and during her natural life, free from any control, etc., on the part of her husband, or any husband she may have, with remainder in fee, and if no issue survived, then to the heirs at law of the testator.
    The said Maria Yiele died in December. 1889, at the city of Albany, leaving a last will and testament which was duly proven as a will of real and personal property and admitted to probate by the surrogate of Albany county, February 24, 1890.
    By said will the said Maria Yiele devised and bequeathed all her property, real and personal, to her husband, Maurice E. Yiele, she, the said Maria, dying seized the estate in question as derived through the said will of Charles D. Townsend, the said testimonial in writing, and said judgment in partition herein-before set forth.

      On or about July 10, 1890, the said Maurice E. Viele and said William H. Keeler entered into an agreement, in writing, for the purchase and sale of the said property therein described.
    A deed of the premises in question with the usual full covenants was duly executed and acknowledged by the said Maurice E. Viele, and in fulfilment of said agreement on his part was tendered to the said William H. Keeler, who then refused, and still refuses, to accept said deed, or to pay for said premises, upon the ground that the said Maurice E. Viele is not the owner in fee simple of an undivided half of said premises. The said Maurice E. Viele had no title to said premises excepting by, under, or through the said will of his wife, the said Maria Viele.
    The questions submitted are:

      First. Is said Maurice E. Viele the owner in fee simple absolute of one undivided half of the lot of land, etc., particularly described in the case and in the agreement between himself and said William H. Keeler therein set forth, and

      Second. Is said William H. Keeler legally bound to accept the deed of conveyance of an undivided half of said lot of land, etc., tendered to him by said Maurice E. Viele, as set forth in said case, and to pay him therefor the sum of $15,000; and is said Maurice E. Viele entitled to a judgment against said William H. Keeler to that effect

      S. O. Shepard, for pl’ff; Isaac Lawson, for def’t.
   Landon, J.

The will of Charles D. Townsend gave to his daughter, Mrs. Viele, for her life the possession and enjoyment of the share of his estate allotted to her, but bestowed the legal title thereto upon his executors in trust to support Mrs. Viele’s possession and enjoyment for life. The codicil to the will gave Mrs. Viele the title for her life of the same share. We pass this life estate to consider the important question whether Mrs. Viele under the will became vested of a fee in the same share, or whether it passed upon her death according to the provisions of the codicil.

The will declares that upon the happening of certain events the share of which it gives Mrs, Viele the use for life shall vest in her in fee. Subject to this contingency, which would, of course, merge the remainder in the fee, the will disposed of the remainder after Mrs. Viele’s life estate in her share. The codicil makes a different disposition of the remainder. It contains no provision respecting the contingency whereby Mrs. Viele’s life estate might become a fee. Thus, the will makes in any event full and ultimate disposition of the share allotted to Mrs. Viele. And the codicil does no less ; it bestows the share for her life and the remainder afterwards.

The disposition of the share in question made by the codicil is the latest expression of the testator’s will; the disposition is complete, and, therefore, prevails over any different disposition contemplated by the will.

This view of the case answers every opposing construction suggested by" the plaintiff.

It follows that both questions proposed in the case submitted must be answered in the negative, and that judgment be directed for the defendant, with costs.

Mayham, J., concurs.


text:
    In the Matter of the Arbitration Between Duncan McGregor App’lt, and George Sprott, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Arbitration—Awabd.
    If arbitrators keep within their jurisdiction their award will not be set aside because they have erred in judgment either in fact or in law. Unless restricted by the submission they may disregard strict rules of evidence and decide according to their sense of equity, and the court cannot on an assumption of error convict the arbitrator of partiality.
    Appeal by McGregor from an order of the special term, February 25, 1890, vacating an award in his favor.
    March 21, 1887, the parties by an instrument in writing executed in pursuance of § 2866, Code of Civil Procedure, submitted to the arbitration of James McIntyre all their accounts and demands against each other for him to hear and determine and make award thereon. Both parties thereafter appeared before the arbitrator and submitted their respective accounts and demands; neither party was sworn, no counsel were present." After the hearings were closed the arbitrator, July 2, 1887, made his award in writing in duplicate, whereby he found that there was due from Sprott to McGregor $2,345.31 and directed payment thereof.
    July 28, 1887, Sprott made a motion at special term upon affidavits to vacate this award. McGregor read affidavits in opposition and the special term made an order sending the matter to a referee to take testimony as to what took place “before the arbitrator at the several hearings before him and as to any and all matters tending to show any unfairness or corruption or wilful mistake on the part of said arbitrator or the contrary,” and report the' same with his opinion thereon. The referee took the testimony offered and made report thereof with his opinion. He reported that in his opinion no unfairness, corruption or wilful mistake on the part of the arbitrator was shown, but that the arbitrator made his award in good faith, believing it to be fair and just He reported that the arbitrator was a cousin of each party and known by both to be so, and had years before taken some part in an effort made to effect a settlement between them and was first nominated by Sprott; that during the arbitration the arbitrator was a guest at McGregor’s house; this fact was known to Sprott and he knew it to'be in accord with McIntyre’s usual custom. It was one ground for vacating the award that the arbitrator had refused to have McGregor sworn as to the accounts presented by him. The referee found that no request to that effect was made by Sprott. Upon the referee’s report, including the testimony taken by him, the motion to vacate the award was renewed and was granted. From this order this appeal is taken.

      L. M. Brown, for app’lt; H. Howard, for resp’t
   Landon, J.

Section 2374 specifies the grounds upon which an order vacating the award can be made. The referee’s report negatives the existence of any of these grounds. We have examined the testimony taken by him and concur with him in opinion. No doubt the arbitration was conducted according to methods. unlike those which prevail in the trial of causes, but the parties preferred such methods; they selected a relative for arbitrator, one who had long known them both, and had some knowledge of their dealings with each other; the hearings were had free from the restraints, formalities and technicalities of courts, against which the parties were entitled.to indulge their prejudices and act accordingly. Sprott was greatly disappointed m the result, and quite naturally seeks to escape from it. The learned special term seemed to think that gross injustice had been done him in the award, and therefore concluded that the evidence adduced for the purpose of showing partially on the part of the arbitrator ought to prevail. We do not assent to this reasoning. We cannot, upon the assumption of error in judgment, convict the arbitrator of partiality. To do so would be unjust to the arbitrator and an assumption by indirection of a general jurisdiction to review awards which is not conferred by the statute and is denied by the authorities. The court possesses no general supervisory power over awards, and if arbitrators keep within their jurisdiction, their award will not be set aside because they have erred in judgment, either in fact or in law. Arbitrators, unless restricted by the submission, may disregard strict rules of evidence and decide according to their sense of equity. Fudickar v. Guardian M. Life Ins. Co., 62 N. Y., 392; Masury v. Whiton, 111 id., 679; 19 N. Y. State Rep., 141; Sweet v. Morrison, 116 N. Y., 19; 26 N. Y. State Rep., 445; Hoffman v. De Graaf 109 N. Y., 638; 15 N. Y. State Rep., 197.

The parties by their submission agreed to accept the award, and that agreement must prevail, unless the complaining party can maintain the burden of showing that it has not been fully and honestly complied with, or that his right to a full and fair investigation and hearing has not been allowed.

We think that the attempt to impeach this award has failed.

Some questions of practice in respect to the hearing of the motion are presented by the appellant, which we do not think it necessary to consider.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs and disbursements.

Learned, P. J., and Mayham, J., concur.


author: Andrews, J.

text:
    Thomas T. Read et al., Resp’ts, v. George G. Williams et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    I. Will—Trust—Powers.
    Testatrix gave the residue of her estate to “ such, charitable institutions and in such proportions as my said executors by and with the advice of * * * shall choose and designate.” Held, that whether considered as a trust, or a power in trust, there being no designated beneficiary of the power in trust capable of compelling its enforcement, it was void.
    3. Same—Equitable conversion.
    The court below held that the heirs of the testatrix were excluded under the doctrine of equitable conversion from any interest as such in the real estate. Held, error; that the expression in the will ‘ ‘ after the same shall have been duly converted into money ” was not intended as a direction for an absolute conversion, but only one for the purposes of the will to accomplish an easy division among the corporations to which' it was to be given, and as the gift failed the conversion ceased.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs, entered after trial at special term.

      J. Edward Swanstrom, P. H. Vernon, John E. Parsons, Fordham Morris and Manley A. Raymond, for app’lts; Charles A. Jackson, for resp’ts.

       Reversing, in part, 37 N. Y. State Rep., 505.

   Andrews, J.

The jurisdiction of a court of equity to entertain an action in behalf of the next of kin of a testator for the construction of a will disposing of personal estate, where the disposition made by the testator is claimed to be invalid or inoperative for any cause, .was asserted in Bowers v. Smith. 10 Paige, 200, and was maintained in Wager v. Wager, 89 N. Y., 161, and in Holland v. Alcock, 108 id., 312; 14 N. Y. State Rep., 761.

It is true that in such cases the next of kin claim in hostility to the' will, but the executors, in case the disposition made by the testator is invalid or cannot take effect, hold the personalty upon a 'resulting trust for those entitled under the statute of distributions, and thereby the jurisdiction to bring an equitable action for construction and to have the resulting trust declared by the court attaches as incident to the jurisdiction of equity over trusts.

The Code of Civil Procedure, § 1866, has extended the remedy so as to include suits for construction of devises in behalf of heirs ' claiming adversely to the will, and it would not be consistent with the spirit of this legislation to narrow the jurisdiction in cases of bequests of personalty.

The case of Chipman v. Montgomery, 63 N. Y., 221, contains expressions which,-considered independently of the facts of the case, may seem adverse to this view, but, as was said by Rapallo, J. , in Wager v. Wager, supra, “ the plaintiffs there had on their own showing no present interest in the property, and might never have any.” The case of Horton v. Cantwell, 108 N. Y., 255; 13 N. Y. State Rep., 615, was one also where the plaintiff had no interest in the ultimate disposition of the estate by the provisions of the will which was assailed, even if held invalid, and the court, decided that she could not maintain the action.

It is not really contended that the provision in the third paragraph of the will, and the modification thereof in the second paragraph of the third codicil, setting apart a trust fund to be perpetually kept by the executors and trustees, and their successors, and directing the application of the income for cemetery purposes, can be upheld. These provisions are manifestly void, as involving an unlawful suspension of the absolute ownership of personal property.

The principal question in the case relates to the validity of the residuary clause in the second codicil. That clause is as follows: “Eleventh. After the payment and discharge of my just debts, (if any there be), funeral expenses and expenses of administration, and after all legacies and bequests mentioned in my last will and testament, as modified by my codicils, shall have been paid in full, if thereafter there shall be any residue and remainder of my estate and property, I give and bequeath such residue and remainder, after the same shall have been duly converted into, money, as follows, viz., to such charitable institutions and in such proportions as my executors, by and with the advice of my friend, Rev. John Hall, D. IX, shall choose and,designate.”

Subsequent to the death of the testatrix and prior to the commencement of this action the executors, with the advice and approval of Dr. Hall, made a written choice and designation of certain incorporated charitable institutions organized or existing under the laws of this state, authorized to take real and personal property by devise and bequest, among whom they directed the residuary estate to be divided. It will be noticed that the particular donees of the gift are not designated in the will. They could not be known until the executors should select, in the manner pointed out, the particular charitable institutions which should take the bequest. The range of selection was unlimited except that the appointees were to be institutions of charity, and perhaps, also it is implied that they were to be incorporated charities, because a provision is made that the institutions selected shall be under no disability to accept the legacy. But beyond this there was no limitation whatever. The selection was not confined to. charitable institutions in this state or in the United States. If the power was valid the executors, with the approval of Dr. Hall, might appoint the gift to charitable institutions anywhere in this: country or in foreign countries.

The will did not vest the title to the property in anyone pending the exercise of the power of, appointment. It was not given to the executors, nor was it given to any particular charitable institution which could be pointed out or ascertained at the death of the testatrix. If the property, under the will, vested anywhere,, it was in the whole aggregate incorporated institutions of the whole world, capable of taking by devise or bequest, subject to being divested in favor of such particular charities as should thereafter be designated by the executors. The question presented is not an original question in this court. It was decided adversely to the defendants in the case of Prichard v. Thompson, 95 N. Y., 76. There is between that case and this no distinction in principle. In that case the legal title to the fund was vested in the executors in trust. In this case the executors were given simply a power in trust, without clothing them in terms with the legal title to the fund to be distributed. But this makes no legal distinction.

The point of the decision in Prichard v. Thompson is that while the law recognizes the right of a testator by will to create powers of appointment and selection, and will sustain dispositions •of property made pursuant thereto although the testator himself did not designate the particular individuals in whose favor the power should be exercised, nevertheless that this right is subject to the limitation that the testator must himself designate the class of persons in whose favor the power may be exercised with sufficient certainty so that the court can ascertain who were the objects of the power, and that a power to select the beneficiaries from among all the members of the community, or all corporations of a particular class, wherever they may exist, however numerous, is void for indefiniteness. Such a power is distinctly in contravention of the policy of the statute of wills. It substitutes for the will of the testator the will and discretion of the donees of the power and makes the latter controlling in the disposition of the testator’s property. That can not fairly be said to be a disposition by the will of the testator with which the testator had nothing to do, except to create an authority in another to dispose of the testator’s property according to the will of the donee of the power, with no limitation except that the distribution shall be made among corporations to be selected from a large class of corporations, wherever existing, answering the description in the “will.

The statute of powers does not define-all the purposes for which a power over property may be created. It recognizes the existence of powers of appointment and selection which were well known to the common law. But, as pointed out in the opinion of Van Brunt, 0. J., in the opinion of the general term, the statute presupposes that a power of selection must be so defined in respect of the objects that there are persons who can come into court and say that they are embraced within the class, and demand the •enforcement of the power, and the same principle is recognized in the provision that “ if the trustee of a power with a right of selection shall die leaving the power unexecuted, its execution shall be decreed in equity for the benefit of all persons designated as objects of the trust.” 1 R. S., 734, § 100.

It would be manifestly impracticable for the court to ascertain in respect of the will in question what corporations constituted the whole class of charitable institutions mentioned in the will, or to •decree the execution of the power for the benefit of the numerous •class embraced in the description. The difficulty in this case is not avoided because the power of selection has in fact been exercised nor because it has been exercised in favor of corporations which if they had been the direct objects of the testator’s bounty would have been entitled to take. The vice lies in the unauthorized power. What has been. done under it is in a legal sense immaterial. The validity of the power depends upon its nature and not upon its execution. The heirs and next of kin of the testatrix derive their title under the law of descents and distribution and their rights attached immediately on the death of the testatrix to any part of the estate not validly disposed of by the-will. If the power attempted to be created by the will was valid their rights, whatever they were, were subject to it. If invalid and there was no valid alternative disposition by the testator of' the residue, they immediately became entitled. This question was considered by Rapallo, J., in Holland v. Alcock, Ex'r, supra, 323, and it is unnecessary to further elaborate it.

We are of opinion that the court below erred in holding that the heirs of the testatrix are excluded under the doctrine of equitable conversion from any interest as such in the real estate of the testatrix remaining undisposed of. The testatrix intended to dispose of her whole estate, which consisted both of real and personal property. By the original will she gave the residue after satisfying charges and legacies to certain specified corporations, “ after the same shall have been duly converted into money.” By the seventh clause of the will she directed the executors to sell and convert into cash all her real estate, “ and also to do all and other acts and things which may be proper and requisite in law for the purpose of and to accomplish the due payment of the bequests and the carrying out all of the provisions in this my last will and testament contained.”

By her second codicil she revoked the residuary clause in the will and substituted the power to the executors to dispose of the residue, to which reference has been made, and in the gift to the institutions to be designated she uses the same language as in the gift to the corporation in the will, viz.: “ after the same ” (her estate) “ shall have been converted into money.” It seems to be quite clear that the conversion was directed for the purposes of the will. She may reasonably have supposed that it would be more convenient that the corporations should take their respective interests as money and not as land. The personal estate was largely in excess of the sum required to pay charges and legacies, outside of what was given by the residuary clause. The direction to sell the real estate apparently could have bad no purpose except to accomplish an easy division of the residuary estate among the corporations to which it was to be given. The gift failing, the purpose of the conversion ceased, and the direction to sell the real estate was no longer imperative. The conversion, of course, was not directed for the purpose of distribution of the estate as money among the net of kin. The testatrix never intended that they should take it in any form. The case falls within the general principle, declared in many cases, that a power of sale in a will, however peremptory in form, if it can be seen that it was inserted in aid of a particular purpose of the testator, or to accomplish his general scheme of distribution, does not ipso facto operate as a conversion, where the scheme or purpose fails by reason of illegality, lapse or other cause. In that case the property retains its original character, and it goes to the heir or next of kin as real estate or personalty, as the case may be. Hotting short of a clear intention, to be collected from the will, that the land shall be sold and converted into money before division, whether the particular purpose fail or not, will be sufficient in equity to change the character of the property. In England even this is not sufficient to exclude the heir in the absence of an express gift of the proceeds away from him. Fitch v. Weber, 6 Hare, 145; Hopkinson v. Ellis, 10 Beav., 169; Taylor v. Taylor, 3 De G., M. & G., 190; Williams on Exrs., vol. 1, 613, et seq.

In this country the courts do not seem to hold so strict a doctrine.

The result is that the judgment should be reversed on the appeal of the infant defendant, Kate Haddock, so far as it adjudges an equitable conversion, and in other respects it should be affirmed.

All concur.


author: Earl, J.

text:
    James A. Ridden, Resp’t, v. James H. Thrall et al., App’lts.

      (Court of Appeals,

      Filed February 24, 1891.)

    Gifts—Causa mobtis.
    Where a gift causa mortis is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff on trial by the court without a jury.

      Carlisle Norwood, Jr., for app’lts; John H. Corwin and Wm. H. Veeder, for resp’t.

       Affirming 27 N. Y. State Rep., 947.

   Earl, J.

On the 1st day of October, 1888, Charles H. Edwards had money on deposit in savings banks and kept the savings bank books in a tin box, and on that day he delivered the tin box to the plaintiff, informing him that he was about to go to St. Luke’s hospital in the city of Hew York to have an operation performed for hernia, and that he was apprehensive he might die from the results of the operation, and said to him that if he did not return he gave him the box and its contents. He went to the hospital on the next day, and on the 5th day of October an operation was there performed for inguinal hernia. The operation was not dangerous and was apparently successful. But on the 16th day of October he suddenly died from heart disease, with which he was afflicted when he went to the hospital. He had not returned from the hospital and had not recovered from the disease for which the operation was performed nor from the results of the operation.

The defendants claim that the circumstances were such that a valid gift was not made, mainly because Edwards did not die from the disease on account of which he went to the hospital, and from which he apprehended death might ensue.

The case is novel in some of its features, and interesting. I have carefully considered the able argument submitted on behalf of the appellants, and am satisfied that the judgments of the courts below upholding the gift are right

The gift was sufficiently proved. The facts which took place at the time of the gift on the 1st day of October were testified to by the plaintiff’s wife. There were sixteen bank books, and they represented about $40,000 of deposits. Such a gift should be proved by very plain and satisfactory evidence, and if the case depended upon the evidence of the wife alone, any court might well hesitate to uphold the gift. But on the previous day (September 30th) ¡Edwards wrote the following letter addressed to the plaintiff:

“ Friend Jim-—-Should I not survive from the effects of the operation about to be performed on me at St. Luke's Hospital, this is my last will and request, that you will take charge of my body and have it placed in my family plot in Greenwood Cemetery, and also that you will take full charge of all my personal effects of every kind, and to have and hold the same unto yourself, your heirs and assigns forever. You will find my papers and all my accounts in the box.
“C. H. Edwards.”

This was enclosed in an unsealed envelope, addressed to the plaintiff, and placed by Edwards in the bureau in the room occupied by him in plaintiff’s house, where it was found about a week after his burial by plaintiff’s wife and his aunt, both of whom proved the handwriting to be that of the donor. The genuineness of this letter was not disputed upon the trial. While standing alone it would not have been sufficient to establish the gift, it furnishes strong confirmation of the evidence of plaintiff’s wife as to the gift, and leaves no reason to doubt that it was made as she testified. It was competent as corroborating evidence, just as the oral or written declarations of the donor previously made would have been, showing the intention to give, and thus corroborating the evidence as to the actual gift subsequently made. I have found no authority condemning such evidence. In all cases where probate of a will is contested on the ground of undue influence, fraud, incompetency or forgery, the previous declarations or statements in any form of the testator, showing an intention in harmony with the instrument offered for probate, have always been held competent, not as sufficient standing alone, but as corroborating the other evidence offered by the proponent.

The gift was consummated by the delivery of the books, and no other formality was needed to constitute the actual delivery of the bank deposits needful to vest the possession and title in the donee. In savings banks in this state such deposit books are issued as evidence of the indebtedness of the banks.' Withdrawals of deposits are entered in the same books, so that the deposit book always, with the additioti of any interest, shows the actual state of the accounts between the depositor and the bank, and the whole indebtedness of the bank. It answers the same purpose in the case of a savings bank that is answered by a certificate of deposit in the case of other banks. The decisions are not entirely harmonious as to the sufficiency of the mere delivery of such deposit books to constitute a valid gift, either inter vivos or causa mortis. But the general rule in England and in this country, and particularly in this state, is that any delivery of property which transfers to the donee either the legal or equitable title is sufficient to effectuate a gift, and hence it has been held that the mere delivery of non-negotiable notes, bonds, mortgages or certitificates of stock is sufficient to effectuate a gift. 2 Redfield on Wills, 312; Westerlo v. De Witt, 36 N. Y., 340; Champney v. Blanchard, 39 id., 111; Penfield v. Thayer, 2 E. D. Smith, 305; Walsh v. Sexton, 55 Barb., 251; Johnson v. Spies, 5 Hun, 468; Allerton v. Lang, 10 Bosw., 362; Camp's Appeal, 36 Conn., 88; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 id., 418; Pierce v. Boston Savings Bank, 129 Mass., 425; Tillinghast v. Wheaton, 8 R. I., 536; In re Mead, L. R., 15 Ch. D., 651; Moore y. Moore, L. R., 18 Eq., 474.

But the learned counsel for the appellants calls our attention to one of the by-laws of the bank printed in the deposit book in question in this action, and claims that the delivery was not effectual without the written order of the donor. The by-law is as follows: “ Drafts may be made personally or by the order, in writing, of the depositor, if the bank have the signature of the party on their signature book, or by letters» of attorney duly authenticated; but no person shall have the right to demand any part of the principal or interest without producing the pass book, that such payments may be entered therein. If the person giving the order or power of attorney cannot write, he or she must make his or her mark, in the presence of a subscribing magistrate or some one whose signature is known at the bank, and any person presenting said order or power of attorney must be known or made known to the bank, as the one authorized to receive the money.”

This by-law requires an order or power of attorney when some one seeks to draw money for the depositor or the depositor’s money. But the depositor can draw the money without making 'an order simply by the presentation of the deposit book and so can any owner of the book. Suppose the plaintiff had purchased the book and had thus become the absolute owner thereof. He could have drawn the money as owner on presentation of the book and the bank could not have required as a condition of payment that he should procure a power of attorney or an order from one having no interest, legal or equitable, in the deposit. The owner in such a case should produce satisfactory evidence of his ownership of the book and if the bank refused to pay he would be obliged to establish such ownership by any competent evidence and nothing more; and his rights as purchaser would be no greater than his rights as donee. He has the same right to enforce payment that he would have had if he had been the donee of any non-negotiable chose in action or a certificate of deposit or unendorsed note. He could establish his right to payment in such a case by any proof showing that he was the absolute legal or equitable owner.

The claim is also made that the donor could not make the gift in the apprehension of death from a surgical operation to be performed in the future to which he intended voluntarily to expose himself. But, without taking a broader view, death from a surgical operation made necessary by a present disease is in a proper sense death from the disease, and the gift may in such case be upheld as made in the apprehension of death from the disease.

We now come to the question, was the gift invalid because the donor did not die of the same disease from which he apprehended death ?

Gifts causa mortis as well as gifts inter vivos are based upon the fundamental right every one has of disposing of his property as he wills. The law leaves the power of ‘ disposition complete, but to guard against fraud and imposition regulates the methods by which it is accomplished.

To consummate a gift, whether inter vivos or causa mortis the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa mortis more is needed. The gift must be made under the apprehension of death from some present disease, or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the life time of the donor. It is not needful that the gift be made in extremis when there is no time or opportunity to make a will. In many of the reported cases the gift was made weeks, and even months, before the death of the donor, when there was abundant timé and opportunity for him to have made a will. These are the main features of a valid gift causa mortis as they are set forth in many text books and reported cases. Just Insts., Lib. 2, tit. 7, § 1; Mackeldey’s Roman Law, § 793; California Civil Code, §§ 1149, 1151; 1 Roper on Legacies, 26; 2 Shouler’s Personal Property, 157; 2 Kent’s Com., 444; Story’s Eq. Jur., §§ 606, 607; Pomeroy’s Eq. Jur., § 1146; Grymes v. Hone, 49 N. Y., 17; William's v. Guile, 117 N. Y., 343; 27 N. Y. State Rep., 251; Basket v. Hassell, 107 U. S., 602.

Counsel for the appellants would add one more pre-requisite to an effectual gift, and that is that the donor when the gift has been made in the apprehension of death from disease must have died of the same disease, and he calls our attention to expressions of judges to that effect. I have examined all the cases to which he refers, and many more, and find that these expressions were all made in cases where the donor died from the same disease from which he apprehended death when he made the gift, and that none of them were needful to the decisions made. The doctrine meant to be'laid down was that the donor must not recover from the disease from, which he apprehended death. I am quite sure that no case can be found, in which it was decided that death must ensue from the same disease and not from some other disease existing at the same time, but not known. There is no reason for this additional prerequisite. The rule is that the donor must not recover from the disease from which he then apprehended death. If he recovers, the gift is void; if he does not recover, and the gift is not revoked, it becomes effectual.

In this case the condition was that if he did not recover from the consequences of the operation and return from the hospital, the gift should take effect That was a perfectly lawful condition for him, as the owner of the property, to impose, and no reason can he perceived for refusing to uphold a gift made under such circumstances. A donor may have several diseases, and may in making a gift apprehend death from one and not from the others, and shall the gift be invalid if, before he recovers from the disease feared, he dies from one of the other diseases ? In such a case it might be, and generally would be, difficult, if not impossible, to tell what share any of the diseases had in causing the death. No medical skill could ordinarily tell that the donor would have succumbed to the disease feared if the other diseases had not been present. Here the immediate cause of death appeared to be heart disease, and the autopsy did not disclose that there was any connection between the hernia or the operation and the heart disease. But who could tell that the death would have ensued from the heart disease at that particular time but for the operation ? No medical skill can tell that the shock from the operation, and the debility and disturbance caused thereby, did not hasten death; and the death, therefore, in a proper .sense, may have ensued, and probably did ensue, from both causes.

Sound policy requires that the laws regulating gifts cama mortis should not be extended, and that the range of such gifts should not be enlarged. We, therefore, confine our decision to the precise facts of this case, and we go no further than to hold that when a gift is made in the apprehension of death from some disease from which the donor did not recover, and the apparent immediate cause of death was some other disease with which he was afflicted at the same time, the gift becomes effectual.

The judgment should be affirmed, with costs.

All concur.