author: Beadlet, J.:

text:
    ELIZA A. WHITE, Administratrix, etc., of LEVI JOHNSON, Deceased, Appellant, v. PETER J. BUTTON, as Administrator, and C. ANGELINE BUTTON, as Administratrix, with the will annexed of JANE A. JOHNSON, Deceased, Respondents.

      Purchase of land by a husband for his wife — liability of the husband’s estate for the amount of a bond and mortgage given by the husband and -wife to seewre the purchase-money.

    By the will of Levi Johnson, made in 1854, he gave to his wife the use during her life of the house and lot where he then resided in Auburn, and of all his personal estate, and from and after her death he gave the property to his daughter Eliza. He afterwards negotiated for the purchase of another house and'lot in Auburn and caused the same to be conveyed to his wife, who joined with him in executing a bond and mortgage to secure á portion of the purchase-price thereof. ■ Prior to his death he sold the first mentioned house and lot and paid $800 on the bond and mortgage given by himself and wife as above stated. After his death his widow, while acting as sole executrix, paid $1,000, the balance of the amount secured by said bond and mortgage, and upon an accounting had before the surrogate her administrators were allowed to charge this payment against the estate of her husband.

      Held, that although the agreement of the husband contained in the bond, to pay the amount secured by it, was without consideration, yet as it was made to a third person it was valid and enforceable as between him and his wife and their estates.
    That as by the terms of the bond the liabilities of the husband and wife were equal, each was, as between themselves, liable for hut one-half of the amount.
    That the circumstances of the case justified the conclusion that the payment of $830, made by the husband in his lifetime, was intended as a present to his wife.
    That the administrator of the wife’s estate was entitled to charge the husband’s estate with but $500 of the $1,000 paid by her upon the mortgage.
    Appeal from a decree of the surrogate of Cayuga county.
    Levi Johnson, the husband of Jane A. Johnson, and the father of the appellant (whose name then was Eliza Johnson), made his. will in 1854, by which he gave to his wife the use, during her life, of his house and lot where he then resided in Auburn, and of all his personal estate, and from and after her death he gave the property to his daughter Eliza. He afterwards negotiated for the purchase of another house in that city at the price of $2,300, and caused the conveyance of it to be made to his wife. At the time of the conveyance he paid $500, and he and his wife joined in a. bond for the balance of the purchase-money, secured by mortgage by them executed upon the premises so conveyed, and he sold the house and lot first mentioned. He afterwards paid $800 of the amount so secured, and died in 1865 leaving the will, which was admitted to probate, and letters testamentary were issued to his widow and Alvah Johnson. The latter died in 1868, and thereafter until her death in 1883, the further execution of the will devolved on the widow alone. She also left her will, which was admitted to probate and record, and letters testamentary thereon were duly issued to Charles O. Button. The daughter Eliza received letters of administration with the will annexed upon the estate of her father, and afterwards proceeded by petition before the surrogate to require the executor of Mrs. Johnson’s will to account for and deliver over the estate which came to his testatrix under the will of Levi Johnson, deceased, and to which the petitioner alleged she was entitled. The accounting was had and the surrogate decided that the petitioner was entitled to receive from the estate $4,000 and no more, and because the will of Mrs. Johnson directed that such amount be paid to the petitioner in full satisfaction, and it had been so offered by the executor Button tu, and refused by, the petitioner, the surrogate charged her with costs. A decree was entered accordingly, and the petitioner appeals. Since then the executor defendant has died, and the present defendants as administrators, with will annexed, have been substituted.

      E. A. Woodi/n, for the appellant.

      Jamies Lyon, for the respondents.
   Beadlet, J.:

In the proceeding for the accounting it appeared that Mrs. Johnson paid from the estate of her testator, the remaining $1,000 ■secured by tbe bond and mortgage of tbe purcbaso-money of tbe premises conveyed to ber. And tbe surrogate allowed that sum to tbe executor of ber will as a proper charge against the estate of Levi Johnson, deceased. He held that the debt for the purchase-price of the premises was that of the husband, and that she had the relation of his surety in the bond and mortgage, and in that manner supported the charge. While on the part of the petitioner it was contended there, and is here, that because she took title to the property the debt was hers, and as between her and him there was no legal liability on his part to pay it.

The only question on this review ai’ises out of that controversy. As between the husband and wife the conveyance was made to the latter without any other than a meritorious consideration, and the payments by him made were gifts to her, and any liability he assumed to pay the purchase-money was for her benefit. He did it to provide for her a comfortable home, and very likely intended to pay the full amount of it and may have done so, had he survived the maturity of the last installment of $1,000. So far as the gift was executed it was effectual to vest property in his wife, but so far as it remained unperfeeted or executory as between them no legal right was vested to require its completion. He could incur liability to another for property and vest in her title to it by gift, and the debt be his, and as between him and wife, he and his estate be chargeable to pay it. The deed and mortgage were simultaneously made, and in practical effect as between the parties to them were parts of one instrument, and the conveyance was of the equity of redemption only, which as between her and the grantor was all the wife took by it. (Stow v. Tifft, 15 Johns., 458; Jackson v. De Witt, 6 Cow., 316; Mills v. Van Voorhies, 20 N. Y., 412.) The undertaking to pay the secured portion of the purchase-money was executory. If the agreement of the husband to pay had been with or to the wife, and her remedy to require payment by him as his debt depended upon such undertaking there would be no legal liability on his part, nor could it be treated by her as his debt. (Whitaker v. Whitaker, 52 N. Y., 368.) If he had taken the deed himself, incurred no personal liability, and given a mortgage on tbe premises, and then without consideration conveyed them to his wife by deed with covenants of warranty and ■against encumbrances, be and bis estate would not baye been chargeable to her by way of protection against the lien of the mortgage or for reimbursement if she were compelled to pay it, because her right: would in such case depend wholly upon the covenants in the deed to her, and they being executory would furnish no support for such remedy in her behalf. (Duvoll v. Wilson, 9 Barb., 487.)

The reason is founded in the fact that no liability could be created or arise out of the covenant or agreement made without consideration to support it. But here the obligation assumed by the husband was to the grantor and was personal and valid. It was his debt and he was liable to pay it, and as between him and his wife individually ■and as his personal represesentative it could be so treated. It was in no sense an agreement with her to pay to her or for her benefit, but as between them it was a liability to another to pay for property purchased of which the conveyance to her was a gift by her husband to the extent of the payments and liability made and assumed by him to the grantor. And if she had been compelled, to pay and paid -for the protection of her title any portion of the amount so assumed by him, she would have been afforded the right of subrogation for the purpose of 'charging him or his estate with the amount of such liability because it was his debt. (Cole v. Malcolm, 66 N. Y., 363.) She as his personal representative was justified in paying the amount necessary to discharge such liability. The remaining question is what was the amount of it? The bond given for the unpaid purchase-money was executed by both husband and wife. The-debt was for property conveyed to her. By the terms of the instrument their liabilities were equal and both were legally liable to the obligee, and unless something aliunde that instrument justifies or requires the conclusion of a different relation, each as between themselves was chargeable for one-half only of the amount..

The circumstances justify the conclusion that the payment of the $800 by Mr. Johnson on it was made without any purpose to require.his wife to contribute, but as a discharge of both obligors to that extent. The wife, therefore, is not chargeable with any portion of that sum so paid by him, and the question of liability to contribution as between them has relation to the $1,000 only, which was paid by her as executrix from the estate of her testator. The court below determined that the debt was that of the husband and the wife was surety. The evidence is that the purchase of the premises was negotiated by Mr. Johnson, and he made the bargain for them in the absence of his wife. If the debt was his alone why did she execute the bond? The sale and purchase were not consummated until the bond and mortgage were made. It does not appear that it was his debt. The fact that he did the business of making the purchase, and the inference that it was his purpose to provide a home for her are not sufficient. The purchase was for her benefit as the conveyance to her shows. The obligation was to pay for her property. Their relation, if designed to be other than that which the terms of the bond imported, was produced by agreement between them; and if the husband’s agreement with her was that he would pay the whole amount, and thus in effect give her the relation of surety in the instrument, it would be executory,, and being without consideration and for her benefit would create no-legal liability on his part to her. As against the unqualified terms-of the bond there does not seem to be evidence sufficient to prove that the entire debt was that of Mr. Johnson. He had not before the execution of the bond assumed any liability to pay. His mere intention to pay the entire amount of it did not make it his debt,, nor create any such liability as between him and his wife, or give to her the relation as surety. The terms of the bond seem to control-the legal relation and rights of the obligors as between themselves..

These views lead to the conclusion that the widow was entitled to-charge against the estate of her testator only one-half the amount of the $1,000 paid by her to discharge the mortgage debt. The question involved was not free from difficulty. And if this result is-adopted neither party should have costs of the proceeding before the surrogate or of this appeal. The decree should be reversed and a new hearing had, with costs of this appeal to abide the final award of costs unless the respondents stipulate to deduct from the amount of credit given to them and increase the amount awarded to the petitioner $500 as of the date of the decree and in that event the decree be so, and further modified by striking from it the award of costs j and as so modified be affirmed, without costs to either party.

Sidth, P. J., and BARKER, J., concurred.

So ordered.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    THOMAS J. REYNOLDS, Appellant, v. THOMAS ROBINSON and Others, Respondents.

      Evidence — when oral testimony will not le admitted to contradict a written agreement.

    Upon the trial of this action, brought to recover damages for a breach of a contract alleged to have been made by the defendants to sell lumber to the plaintiff, the referee found that the agreement was made in writing by letters passing between the parties, by the terms of which the plaintiff was to pay for the amount of lumber delivered each month on or before the twentieth day of the following month. Upon the trial the referee received oral testimony tending to show that before the letters were written it was agreed that the defendants should make inquiries at the commercial agencies as to the plaintiff’s pecuniary responsibility, and that the sale and delivery of the lumber should be contingent upon a satisfactory report from the agencies; that such report was unsatisfactory, and that the defendants for that reason refused to fulfill the contract.

      Eeld, that this oral evidence was inadmissible for the reason that it contradicted specific provisions of the written agreement.
    Appeal by tbe plaintiff from a judgment, entered upon the report of a referee.
    The action was brought to recover damages alleged to have arisen out of a breach of contract, alleged to have been made by the defendants, to sell to the plaintiff a quantity of lumber on credit, and which they afterwards refused to do except for cash. The complaint was dismissed on the merits.

      E. A. Nash, for the appellant.

      Tracy G. Becker, for the respondents.
   Bradley, J.:

The contract was contained in a written correspondence between the parties. The first letter was from the plaintiff of date June 17,1882, and contained inquiry for the price at which the defendants would deliver to him on the cars at Buffalo a described quantity of white oak timber. The defendants answered by letter of twenty-second June, twenty-five dollars per one thousand feet. The letter of plaintiff followed of date twenty-eighth June offering to pay twenty-four dollars per one thousand feet, and to pay for each months delivery on or before the twentieth of the month following. Thereupon, the defendants, by letter of twenty-eighth of June, say “ we will accept your order and enter tbe same as originally given,” etc. And by letter of July first, the plaintiff acknowledged receipt of such acceptance of order. On July third the defendants sent the plaintiff another letter acknowledging the receipt of his letter of July first, and saying that they declined to fill his order except' for cash, and add, “ we can follow but one rule, and your commercial standing is such that we cannot sell on time, and we therefore decline to fill the order.”

The defendants gave evidence tending to prove that prior to the commencement of the written correspondence, at an interview with plaintiff at their office in Buffalo, the plaintiff said he wanted a bill of timber and asked their price and terms, and was advised that their terms were sixty days credit to responsible parties; that he said as to his responsibility they could refer to the commercial agencies and that if the report was right they could fill his order if he sent it up ; that they informed him that they got ■ their reports through Bradstreet’s and Dunn’s agencies, and that if they received a satisfactory report they would furnish the lumber, otherwise not. That they consulted those agencies, and intermediate their letters of twenty-eighth June and third July the defendants received from them reports to the effect that the plaintiff’s financial condition and standing were not good and that consequently they were not satisfactory to the defendants. And thereupon' their declination to give him credit of which he was advised by such letter. The referee found that outside of the correspondence it was part of the agreement between the parties that the defendants should ascertain the pecuniary standing of the plaintiff at the commercial agencies of Dunn & Co. and Bradstreet, or one of them, and that “ the sale and delivery of said timber and lumber was contingent upon a satisfactory report from said agencies to said defendants, of plaintiff’s pecuniary responsibility; ” that they made such inquiries and received answers that his responsibility was not good, and thereupon wrote the letter of the third July. And that the defendants did not deliver the lumber, and that by reason of the unsatisfactory report of said commercial agencies, the defendants were not bound to deliver said lumber and timber.”

The evidence offered, to prove the conversation in respect to the procurement of the reports of his financial condition and as to the effect it might have upon the agreement to sell' to the plaintiff on -credit, was objected to in due time and exceptions were taken to the reception of it on the ground that the contract was in writing and the •evidence was not competent to vary or contradict its terms. And exceptions were also taken to the findings of the referee in respect to the fact and the effect of it furnished by such evidence. The referee has found that the agreement between the parties was ■entered into in writing by the correspondence, and has supported his conclusion by and upon the fact that the oral understanding in respect to the ascertainment of the plaintiff’s financial condition and the result of it, qualified its effect. So that it is unnecessary to inquire here whether there were any, and what other considerations involved, upon which the referee may have reached the same result, 'because it cannot now be said what views he entertained in respect to other facts upon which he has made no express finding. (Armstrong v. Du Bois, 90 N. Y., 95.)

"W e are now required to assume that the agreement produced by the written correspondence was that the defendants would sell and deliver the timber to the plaintiff at twenty-four dollars per one thousand feet, and upon a credit for that delivered in any one month until the twentieth day of the month following. But we do not intend to express any opinion upon the construction and effect which may be given to those letters further than that they furnish ■evidence and support the finding of the referee that such agreement was made for the sale and delivery of the timber. The question here is whether the preliminary oral understanding, as claimed by the defendants, was properly received in evidence and considered by the referee. The general rule is that parol evidence cannot be received or used to contradict or vary the terms of a written instrument, and that when an agreement is reduced to writing it is taken to express the ultimate sense of the parties to it, and therefore in the absence of fraud parol evidence is not admissible to alter or modify the terms or legal effect of a written contract as between the parties entering into it. But there are exceptions to this rule which permit parol evidence of engagements collateral to, or independent of the provisions expressed in the written agreement and not within its terms, although made at the same time and affecting the rights of the parties in relation to the subject-matter of the-written contract. In such case it is deemed only partially reduced to writing, and the collateral undertakings exist in parol. (Chapin v. Dobson, 78 N. Y., 74; Van Brunt v. Day, 81 id., 251; Juilliard v. Chaffee, 92 id., 529; Lewis v. Seabury, 74 id., 409; Shughart v. Moore, 78 Penn. St., 469; Welz v. Rhodius, 87 Ind., 1; 44 Am.. R.., 747; Lindley v. Lacey, 17 C. B. [N. S.], 578.)

The written agreement in this case contains a stipulation for a. specific credit, and the parol evidence upon which the conclusion of the referee rested, was to the effect that such provision was dependent upon the condition that a report derived from the commercial agencies was or should be satisfactory to the defendants in respect to the financial character of the plaintiff. That was in no sense a collateral or independent agreement, but tended directly to impair the force of a provision introduced into the written contract, and to prove that, instead of being an absolute undertaking as its terms imported, it was a qualified or conditional one, and that by reason of a reserved right the fact existed which defeated it. That proposition is in violation of the well established rule, and in its application generally salutary one, which preserves the force and effect of’ written contracts against the uncertain consequences of parol evidence upon their plain provisions. (Payne v. Ladue, 1 Hill, 116; Bank of Albion v. Smith, 27 Barb., 489; Van Bokkelen v. Taylor, 62 N. Y., 105; Hill v. S. B. and N. Y. R. R. Co., 73 id., 351; Wilson v. Deen, 74 id., 531.) It may be that the defendants intended that the condition referred to should be carried through and characterize their correspondence, and thus qualify the acceptance of the plaintiff’s proposition, but if they designed to preserve the qualification they should have done so by the terms of their acceptance of his order. The letter contains nothing from which it may be implied. The distinction to be observed between the rule and the exception, and the circumstances which may furnish the opportunity to apply the latter are well stated in Eighmie v. Taylor (98 N. Y., 294). The parol evidence was not admissible to vary or modify the terms of the written contract. And the defendant’s exception was well taken. There is no other question requiring consideration.

Tbe judgment should be reversed and a new trial granted, costs to abide event.

SMITH, P. J., and BarKbe, J., concurred.

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


text:
    HENRY D. TUCKER, Respondent, v. ALFRED ELY, Appellant.

      Trial — effect of a reference, in the charge, to the effect of a ‘verdict on the costs of the action.

    In this action, brought in the Municipal Court of Rochester, the plaintiff, an attorney, recovered the sum of $100 for professional services rendered to the defendant. Upon the trial of the action in the County Court, to which it had been taken by appeal, the court called the attention of the jury to the amount of the recovery in the Municipal Court, and charged them that “ the provision •of the law is, if that judgment below of one hundred dollars is reduced here in the sum of ten dollars, then the costs would fall upon the plaintiff. But of course you are to determine the case upon the evidence here before you-You are to say upon the evidence, and in reliance upon that alone, what the rights are between the parties, and you are to render your verdict in such manner as upon those facts will do justice between these parties.”
    'The defendant’s counsel requested the court to charge “ that the costs recoverable by either party are entirely statutory, and with which the jury have nothing to do and which they had no right to take into consideration.” The court declined to charge except as it had already charged.

      Meld, no error.

      It seems, that the mere reference, in the charge to the jury, to the effect of a verdict in respect to the costs is a matter of propriety, of which the trial court is to judge.
    Appeal by defendant from judgment entered on a verdict of a jury in tbe Monroe county court, and from an order denying a motion made on the minutes for a new trial.

      JB. F. Maxson, for tbe appellant.

      If. D. Tucker, for tbe respondent.
   Bradley, J.:

Tbe plaintiff is a lawyer and brings this action to recover for professional services alleged to have been by him, performed for tbe defendant wbo is also a lawyer. There was some conflict of testimony relating to substantially the entire claim made by the plaintiff, and especially as to his right to compensation. In respect to the 'character and extent of the services performed by the plaintiff for the defendant and their value, and whether they were gratuitous- and performed under circumstances which did or did not entitle the plaintiff to compensation, the conflicting evidence presented questions of fact for the jury to determine, and was sufficient to support their verdict.

Ve have carefully examined and considered all the several exceptions taken by the defendant to the admission and exclusion of evidence on the trial, and think no error was committed by the trial court in those respects., This action was originally commeneed in the Municipal Court of the city of Rochester, where the recovery was $100. And the trial under review here was had upon appeal taken by the defendant to the County Court.

The court called the attention of the jury to the amount of the-recovery in the Municipal Court and charged them that “ the provision of the law is, if that judgment below of one hundred dollars-is reduced here in the sum of ten dollars, then the costs would fall upon the plaintiff. But of course you are to determine the case upon the evidence here before you. You are to say upon the-evidence and in reliance upon that alone what the rights are between-the parties, aqd you are to render your verdict in such manner as upon these facts will do justice between these parties.” The defendants counsel excepted, and then asked the court to charge “ that the costs recoverable by either party are entirely statutory and with which the jury have nothing to do, and which they have no fight to take into consideration.” The court declined so to charge except as it had already charged. And the defendants counsel excepted.

This question has arisen in cases where the damages rest somewhat in the discretion of the jury, and may be in some degree punitive, and there it has been held that it is not error to call the attention of the jury to the amount of damages required by their verdict to entitle the plaintiff to full costs. (Elliott v. Brown, 2 Wend., 497; Nolton v. Moses, 3 Barb., 31; Waffle v. Dillenback, 38 N. Y., 53, affirming S. C., 39 Barb., 123.) And in the two-latter cases it was in effect held, that it was not error to instruct the jury that they had the right to taire the question of costs into consideration. The rule in that class of cases must be deemed settled by authority, but the reason which supports it as applied to them cannot be applicable to those in which the jury have no discretion in respect to the amount of the recovery and which can. be in no sense punitive. In an action on contract the recovery and the amount of it depend upon the facts actually furnished by the evidence. and found upon it by the jury, in respect to which the effect of the verdict upon the question of costs can have no legitimate bearing or influence. And what effect might (if any) be produced by the consideration of that question in such a case would not be the result of any reason which the jury could properly apply to it. If, therefore, the court had advised the jury directly or inferentially that they were at liberty to take the matter of costs into consideration in arriving at a result to be given by their verdict, we are not now prepared to say it would not have been error.

Our attention has been called to no case presenting the precise question raised here, but in Keller v. Strasburger (90 N. Y., 379) the action was to recover for goods sold, brought before the expiration of the time for which credit was given, on the ground of fraud in the purchase. The question of fraud was submitted to the jury, and the court instructed them that the recovery by the plaintiff would enable him to issue execution against the person of the defendant and imprison him, and that the question for them to determine was whether the plaintiff should have such right or that of a mere creditor.

Upon review of the question raised by exception to this charge the court, holding it was not error, says: “ While the trial judge cannot ordinarily be called upon as matter of right, by either party, to instruct the jury as to the consequences which may flow from their verdict, yet he may in his discretion so instruct them.” The proposition so stated by the court, in view of the question there presented, seems to be broad enough to embrace the one which the defendant’s counsel insists is in this case. And it may be observed that the court below distinctly advised the jury that they must find their verdict “ upon the evidence and in reliance upon that alone,” which substantially covered the request made for instruction to the jury in that respect. And the court was not required to repeat it in the form requested. The question did not arise in Kanna v. Kester (15 Week. Dig., 119); Andrews v. Miles (Id., 290), and in Rewey v. Riley (17 id., 573), the court declined to charge on the subject. The mere reference to the effect of a verdict in respect to the costs in a charge to a jury seems to be a matter of propriety of which the trial court is to judge.

There was no error in the refusal of the court to charge that the plaintiff was concluded by the value of his services as alleged in the complaint. If the complaint had been put in evidence the statements contained in it, in that respect, ought and may have had force as evidence, but they could not as matter of law be treated as con. elusive upon that question. The recovery was less than the amount demanded by the complaint, and but little in excess of the amount of values there alleged. None of the exceptions are well taken and we cannot say that the recovery is against the weight of evidence.

The judgment and order should be affirmed.

Smith, P. J., and BaRkbb, J., concurred.

Judgment and order affirmed.


text:
    EDWARD HOOPES, Plaintiff, v. THE AUBURN WATERWORKS COMPANY, Defendant.

      Evidence — andeni corporate deed — what is admissible as — presumptions as to its seal; as to the appointment and power of an officer of the corporation — form oj acknowledgment by a corporation — what sufficient to authorize the recording of a deed — what instrument is sufficient to support a claim of title upon which to found an adverse possession — a general objection taken at the trial cannot be sustained on appeal by a specific one— sale of property, not covered by the mortgage, under a dewee of f oreáosme thereof— rights of the purchaser — deed — when void because the premises are then adversely held — 1 M. S., 739, sec. 147.
    In an action to recover the possession of a parcel of ground the plaintiff claimed title under a deed purporting to have been made November 1, 1844, by the Auburn and Owasco Canal Company, which deed conveyed 105 acres of land, including those in dispute. The original deed was not produced. As recorded in the county clerk’s office the deed purported to be made between the said company and one Marvine, under whom the plaintiff claimed. The concluding portion of the deed was that Alfred Northam, treasurer of the Auburn and Owasco Canal Company, by the order and direction of the board of directors of the company, thereto affixed its common seal and his signature as treasurer of the company... It was subscribed by him, and Witnessed, and acknowledged by him, in the same manner as a deed executed by an individual usually is. Evidence was given showing possession of the premises by Marvine from the time of the conveyance to the time when the plaintiff purchased in 1875, and by the plaintiff from that time until excluded therefrom by the defendant in 1878.
    Meld, that the record was properly admitted in evidence as an ancient deed.
    'That as it appeared that the canal company had ceased to exist as a corporation many years ago, aud as there was no presumption of the continued existence of its corporate proceedings, and as the deed was shown to be admissible in evidence as an ancient deed, the recitals in it became evidence of the facts recited, and it was not necessary, therefore, lor the plaintiff to prove that the seal was that of the corporation and that Northam was its treasurer.
    That the power to execute the deed and to affix the'corporate seal would be presumed to have existed.
    'The acknowledgment as certified contained no statement that the seal was that of the corporation and that it was affixed by its order.

      Meld, tnat in the absence of any statute requiring any peculiar form for the acknowledgment of instruments executed by corporations, the acknowledgment in this case was sufficient to authorize the recording of the deed.
    'That if there was any question as to the sufficiency of the evidence to establish the deed as a conveyance, it was certainly sufficient to justify a claim of title and support an adverse possession founded upon it.
    The plaintiff purchased the premises upon the foreclosure of a mortgage, given thereon by Marvine, under a decree which directed the sale to be made by the sheriff. The sale was made, and the deed given to the plaintiff was executed by a referee. A general objection to the admission of the deed in evidence was taken at the trial.

      Meld, that the specific objection that the deed was not made by the officer directed by the decree to make it, could not be taken for the first time upon the hearing of this appeal.
    The defendant offered in evidence a mortgage from the canal company to McIntyre made in 1836, a judgment of foreclosure, a sale thereunder and a referee’s deed of the premises made in 1854, with mesne conveyances, including ■one to the defendant in 1869. The premises in question were not described in the mortgage, but were described in the complaint, judgment and deed of the referee. Marvine was not made a party to the action.

      Meld, that the court properly refused to receive the evidence, for the reasons:

      Mrst. That the plaintiff’s grantor was not a party to the action.

      Second. That the right of the purchaser at the sale was founded on the mortgage and not on the judgment.

      Third. That as the evidence showed an adverse possession of the premises by Marvine at the time of the sale and the conveyance to the defendant, the conveyance to the latter was, it seems, rendered void by section 147 of 1 Revised Statutes, page 739.

      JVIotioN by defendant for a new trial, on exceptions taken at tbe Cayuga Circuit, and ordered to be heard at the General Term in the-first instance.
    The action is one of ejectment to recover tiie possession of a parcel of land situated in the city of Auburn and adjacent to the water of Owasco river, and along it, and what had at one time been a canal supplied with water from the river, being bounded by them on the east. The plaintiff founds his alleged title on a deed purporting to have been made November 1, 1844, by the Auburn and Owasco Canal Company, by its treasurer, to Edward E. Marvine,. and the possession of the grantee under such conveyance, until the sale by virtue of a decree of foreclosure of a mortgage made by him, at which sale the plaintiff became the purchaser and received a deed dated April 16, 1875. The plaintiff recovered a judgment at the-circuit.

      John D. Teller, for the plaintiff.

      Charles M. Baker, for the defendant.
   Bradley, J.:

The Auburn and Owasco Canal Company, incorporated in 1828, had title to a tract of land, including the premises in question. The deed of November 1, 3 844, covered 105 acres and embraced the land in dispute. The original deed was not produced at the trial. The record of it in the county clerk’s office was put in evidence, to which objection and exception were taken by the defendant, on the grounds that it did not purport to be a valid deed, that the seal was not shown to be that of the corporation, that the authority of the person acknowledging its execution to act for the corporation did not appear, and that the deed was not properly executed. The deed ¡nil-ported to be made between the Auburn and Owasco-Cana! Company of the first part, and Edward E. Marvine of the-second part. The concluding clause of the instrument was that Alfred Northam, treasurer of the Auburn and Owasco Canal Company, by the order and direction of the board of directors of the company, thereto affixed its common seal and his signature as treasurer of the company. It was subscribed by him and witnessed, and by Notham acknowledged in the usual manner of the acknowledgment of a deed executed by an individual.

The deed on its face purports to be one of conveyance by the company to Marvine and to have a seal affixed, but it does not appear other than by the recital that the seal was that of the corporation or that Northam was treasurer of the company or authorized to make-for it the deed. But it was more than thirty years old at the time of the trial and may be treated as an ancient deed and was properly received in evidence against the objections taken, without other-proof of authority or execution although to give it effect as such, other evidence was necessary. (Staring v. Bowen, 6 Barb., 109.) The requisite proof of possession of the grantee from and after the conveyance, and that of the plaintiff after his purchase, was given to-justify the conclusion that they had the actual possession during the-whole time down to 1878, when the plaintiff was excluded from the-premises in question, by the defendant, who then erected a fence shutting off the plaintiff’s access to them, and assumed the right to-control and thereafter did have the possession of them. The evidence of the possession for thirty years by the plaintiff and by Mar-vine under whom he held was therefore sufficient to permit the 'conclusion that the instrument was supported as an ancient deed without further proof of its execution. (Jackson v. Davis, 5 Cow., 123; Jackson v. Luquere, Id., 221; Jackson v. Lamb, 7 id., 431; Crowder v. Hopkins, 10 Paige, 184; Troup v. Hurlbut, 10 Barb., 354; McKinnon v. Bliss, 21 N. Y., 207.) The recital in the deed to the effect that it was executed and the corporate seal affixed by the treasurer, by the order and direction of the company, in view of the fact that the corporation was named in the deed as the grantor, is sufficient upon the face of the instrument to import a grant by it as distinguished from the act and seal of the individual officer.

It is contended that it was necessary for the plaintiff to prove that the seal was that of the corporation and that Northam was its treasurer. In that the defendant may be right in a qualified sense, and the question is whether the recitals furnish prima facie evidence of those facts. The evidence tends to prove that the canal company, as a corporation, ceased to exist many years ago. And there is no presumption of continued existence of the records of its proceedings to impose upon the plaintiff the necessity of making proof in that respect, but when he has established the facts requisite to give effect to the deed and make it evidence as an ancient one without proof of its actual execution, tbe recitals in it, consistent with other evidence in support of it, with its execution and its apparent purpose, also become some evidence of the facts so recited. (Schermerhorn v. Negus, 2 Hill, 335; Deery v. Cray, 5 Wall., 796.) And the power to execute the deed, to affix the corporate •seal, and that it was such, may be presumed. (Tolman v. Emerson, 4 Pick., 160, 162; Jackson v. Blanshan, 3 Johns., 292, 297, 298; Doe v. Phelps, 9 id., 169; Doe v. Campbell, 10 id., 475; Susquehanna B. and B. Co. v. Ins. Co., 3 Md., 305; 56 Am. Dec., 740; Rex v. Bathwick, 2 Barn. & Ad., 639.) The same rule is applicable to records and office copies of such instruments. (King v. Little, 1 Cush., 436; Pitts v. Temple, 2 Mass., 538; Palmer v. Stevens, 11 Cush., 147; Chamberlain v. Bradley, 101 Mass., 188.)

The acknowledgment as certified, although it contained no proof that the seal was that of the corporation, and affixed by its order as is usual in such cases, was sufficient to authorize the record of the deed.

Our attention is called to no statute requiring any acknowledgment peculiar to corporations. (Lovett v. The S. S. M. A., 6 Paige, 54, 60; Kelly v. Calhoun, 95 U. S., 710.) In Howe Machine Company v. Avery (16 Hun, 555) the certificate of acknowledgment contained no proof of the execution of the instrument by the corporation, nor does that to the deed in question. And if the recital in the latter was entitled to no consideration as that of an ancient deed, there would be no evidence of its corporate character.

It seems to be unnecessary to furnish any proof of power given by the corporation to execute the deed, other than that requisite to support it as an ancient instrument for the purposes of evidence; but the record of another deed, put in evidence by the defendant between the canal company as grantor and Marvine as grantee, of date March, 1844, not including the land in question, but covering some portions of the land conveyed by the deed of November 1, 1844, contains a recital of the action of the board of directors of the company whereby its treasurer was directed to convey to Mar-vine the lands described in the deed of November first before mentioned, which was not fully consummated by that, in which was contained such recital but was by the one made in November following. We think the deed was properly in evidence asan ancient, deed of the corporation named m it as grantor.

If there may be a difference of view in respect to the sufficiency of the evidence to establish the deed as a conveyance by the canal company to Marvine, it must be deemed sufficient to constitute color of title, which imports an instrument insufficient in fact to convey title, and in such case the requisite possession, and not the deed,, affords by operation of law the right or title to the property. There-i's nothing in the terms of the deed to show a want of power to execute it. It was therefore sufficient to justify a claim of title and to-support adverse possession founded upon it within the meaning of the statute. (Jackson v. Newton, 18 Johns., 355; La Frombois v. Jackson, 8 Cow., 589; Bradstreet v. Clarke, 12 Wend., 674, 675; Munro v. Merchant, 28 N. Y., 9, 41; Sands v. Hughes, 53 id., 287; Reformed Ch. v. Schoolcraft, 65 id., 134, 147; Crary v. Goodman, 22 id., 170; Brooks v. Bruyn, 35 Ill., 394.)

The question of actual possession of the disputed premises by Marvine under the deed was litigated, and the evidence tended to prove and fairly establish the fact that through his tenants, to whom he rented the farm, which included the land in question, this particular part of the premises was used for the usual purposes of husbandry from year to year so far as it was in condition for such use by cultivation, mowing and pasturage. And the residue of the farm was used for like purposes from the time the deed was made ¿ and after the plaintiff became the purchaser it was used in like manner by him until the interruption in 1878 before mentioned. And the possession may be deemed adverse within the statute. (2 R. S., 294, § 10; Code Pro., § 83.)

There is evidence tending to prove that the defendant for some time prior to 1878, had assumed to give permission to persons to erect some boat houses adjacent to and on the bank of the premises, and extending over the water, and had from time to time taken some earth from there to repair its dam, but those acts were not such as to constitute adverse possession, nor did rhey materially interfere with the possession and use of the land by Marvine and the plaintiff. (Miller v. L. I. R. R. Co., 71 N. Y., 380; Thompson v. Burhans 79 N. Y., 93.) The plaintiff took title through Marvine, which was derived from the mortgage the latter had made, and succeeded to bis rights in respect to the title, and the possession of the plaintiff under his purchase was continuous with that Marvine had up to that time held.

The decree of foreclosure directed the sheriff to sell. The sale .and deed were made to the plaintiff by Andrew J. Sanders, who subscribed himself, as referee, to the deed. The question is now made that the deed was not admissible as evidence because it was not made by the officer directed by the decree to make it, and that it is therefore ineffectual. The question does not appear to have been •specifically raised at the trial. The objection to its admission as evidence was general. It may be that some legitimate reason existed for the sale and deed by the referee which might have obviated that ground of objection if it had been specifically taken. The sale and deed are deemed to have been made pursuant to direction properly given by the court.

. The defendant offered in evidence a mortgage of the ■ canal company to one McIntyre of June, 1886, a judgment of foreclosure, a sale pursuant to it, and the deed, with mesne conveyances to and including one to the defendant, and they were excluded and exception taken.

The mortgage did not cover the premises in question or any part of them. And although that action was commenced some years after the deed to Marvine was recorded, he was not made a party to it. The premises described in the complaint and judgment there, embraced these premises, or a portion of them, and so did the referee’s deed made in February, 1854. And the defendant’s contention for the admissibility of the evidence is based upon that fact. A judgment as between the parties to it, as a rule, may not be subject to collateral attack, but the deed so taken pursuant to the decree and sale, could furnish no evidence of title as against Marvine and those holding through and under him. The right was founded in the mortgage and that only.

The error of description in the record of the foreclosure could not prejudice the plaintiff here in respect to the title. A nd there was no evidence to support any claim founded on adverse possession under color of title furnished by the referee’s deed and those following it. The defendant was not incorporated until 1859, and took its deed in 1869, more than twenty years after the deed to Marvine. If it can be said, as matter of law upon tbe evidence, that Marvine was then in the actual possession of the premises under a title adverse to the grantor’s in those several deeds following that given, pursuant to the sale upon that decree of foreclosure, it would follow that those deeds in respect to the lands in question were void. (1. R. S., 739, § 147.) But it is unnecessary to assert that proposition for the purposes of this case. The color of title clearly existed in the deed to him which covered the premises, and the evidence is quite controlling if not conclusive that he was in the actual possession holding adversely under such title. The right of the plaintiff to recover depended upon the title derived from the ■deed to Marvine or from title derived by law from adverse posses■sion under it. And the evidence offered by the defendant in no manner affected either of those claims of the plaintiff or tended in any degree by way of defense against them. And the evidence put in by the defendant in relation to the taking by it of earth, gravel, brush and grass from the premises in no manner aided it, ■and there was no error in striking it out.

The declarations of Marvine while he had the possession of the premises, in respect to the boundaries and the extent of his possession, were competent and properly received. in evidence. The ■objections taken to the declarations of Marvine, made by him during that time, were general. And although some evidence given in that respect may not have been within the rule of admissibility, the objection might have been obviated if made on some specific tenable ground or by motion to strike out, when not responsive to the purpose of the question. There seems no error to the prejudice of the defendant in the admission or exclusion of evidence on the trial. The defendant’s counsel asked leave to go to the jury “ on all the facts in the case,” which the court refused, and added that the only question for the jury was one of damages, and exceptions were taken.

The court then proposed to submit to the jury the question ■“ whether the plaintiff held adversely to the defendant for twenty years or more under a claim of title upon the evidence, if the defendant desired. The defendant’s counsel declined the offer of the court.” What is requisite to produce adverse possession is matter of law for the court to declare, but whether the facts which constitute it are established by the evidence is usually for the jury to find. Assuming that the plaintiff’s right to recover depended upon the requisite adverse possession, that fact upon the evidence presented the only question for the jury other than that of damages,, otherwise the latter was the only question for them. The proposition of the court to submit the matter of adverse possession was informal and not entirely accurate in terms, as it expressed only the adverse holding of the plaintiff who had held the possession a few years only, but it was evidently intended to reach back during the time Marvine had the possession. And it must have been so understood by the defendant’s counsel, and if the latter had desired to-have the question submitted, a mere suggestion for modification would evidently have procured it and the proper submission of the question to the jury. This proposition overcame the force of the exception before taken to the statement that there was no question -other than that of damages for them. In the view taken of the case, none of the defendant’s exceptions support error.

The motion for new trial should be denied and judgment ordered on the verdict.

Smith, P. J., and Baeeee, J., concurred.

Motion for new trial denied and judgment ordered for plaintiff on the verdict.


author: JBeadley, J.:

text:
    ARTHUR J. GIBBONS and Others, Respondents, v. HENRY G. LUKE, Appellant.

      Sale of personal property upon the installment plan — condition against removal— when not discharged by a consent to one removal.

    This action was brought to recover the possession oí a piano sold by the plaintiffs-to the defendant upon the installment plan, the agreement providing that the title should remain in the plaintiffs until the purchase-price should be paid, with the right in the plaintiffs in case of default, or in case of attempted violation of the contract, to resume the possession of the property and sell it at auction, or otherwise, rendering to the defendant the surplus, if any, after payment of all charges and expenses. It further provided that the piano should be kept at the defendant’s residence, 117 State street, Rochester, Monroe county, and not removed without the written consent of the plaintiffs.
    Subsequently to the making of the contract the defendant, with the written consent of the plaintiffs, removed the piano to 21 South St, Paul street, Rochester. Thereafter, and while in default as to the payment of certain installments,, he, without the knowledge or consent of the plaintiffs, removed the piano to the village of Lyons, in Wayne county.

      Held, that this was a violation of the terms of the contract which authorized the plaintiffs to maintain this action to recover the possession of the piano without making any demand therefor.
    That the consent to the first removal of the piano did not wholly discharge the provision restricting removals or eliminate it from the contract. The rule applicable to cases of bailments differs from that applicable to conditions in leases against assigning or granting estates subject thereto.
    Appeal bj defendant from a judgment, entered upon decision of the court at the Monroe Circuit.
    The action was brought to recover the possession of a piano, which, in January, 1882, the plaintiffs had delivered to the defendant under a written agreement'executed by him, whereby he stated that he had received from them the piano, at the purchase-price of $400, of which five dollars was then paid and the balance, with interest, he agreed to pay in installments of five dollars February second, and ten dollars monthly thereafter, and when fully paid he should have title, and that in the meantime the title remained in the plaintiffs with the right in case of default in payment, or in case of attempted violation of the contract to resume the possession of the property and sell it at auction, or otherwise, rendering to the defendant the overplus, if any, after payment of all charges and expenses; that the said piano should be kept at defendant’s residence 117 State street, Rochester, and not removed without the written consent of the plaintiffs. And he undertook to keep it insured in their favor for an amount equal to that unpaid of the purchase-price.
    The action was commenced the early part of April, 1884. At that time the defendant had paid $145 and there remained unpaid, exclusive of interest, $255. About the 1st of November, 1883, the defendant was in default eighty-three dollars, and the plaintiffs demanded of him the possession of the piano which was refused. He afterwards, in November, December, January and March, made payments to the plaintiffs and they received them amounting to eighteen dollars. The court did not find that any subsequent demand of the piano was made by the plaintiffs before eommene-ing tbe action, but it is found that the defendant removed the piano to the village of Lyons, Wayne county, without the plaintiffs’ consent. And that before then he had removed it to No. 21 South St. Paul street, Rochester, with the written consent of the plaintiffs. The court directed judgment for the plaintiffs.

      Patrick McIntyre, for the appellant.

      Horace McGuire, for the respondents.
   JBeadley, J.:

The defendant originally had the lawful possession of the property, and was entitled to retain such possession until a legal opportunity arose to terminate it and the election of the plaintiffs to do so. The right so to elect depended upon default or some other violation of the contract under which the defendant might take possession.

About the 1st of November, 1883, the defendant was in default, aud the plaintiffs then had the right for that reason to the possession of the property; and in the exercise of that right did demand of the defendant the possession of it, which was refused. The plaintiffs were then at liberty to treat the contract of sale as rescinded and reclaim the property by action. But instead of doing so they afterwards accepted of the defendant further payments of the purchase-money which rendered his possession lawful, in so far that the demand before made became ineffectual as a rescission of the agreement of sale, or to support an action founded upon it, because they were not entitled to both rescission and payment. The duty of the defendant to pay, and the right of the plaintiffs to require it, depended upon the then affirmance of the contract of sale. The right to maintain this action is not, therefore, supported by the demand made about the 1st of November, 1883. The terms of the contract are such that with the right of resumption by the plaintiffs of the possession is that of sale of the property, which seems to exclude the idea of retaining it and enforcing payment of the purchase-money. The question arises whether the removal by the defendant of the piano to Lyons was such a breach of the agreement as to justify the action without further demand. He was then in default and the plaintiffs had the right to proceed to put an end to the contract of sale and reclaim the property, and the defend.ant was not permitted, other than by payment, to defeat that right.

The court has found, and such must be taken as the fact, that the piano was removed to Lyons without the plaintiffs’ consent. The right to the possession given by the contract was so qualified that it was not to be removed from the defendant’s residence, at 117 State ¡street, in the city of Rochester, without the plaintiffs’ consent. This was a reasonable provision, because they had title to the property ¡and the right by agreement and direction under which it was delivered to control its locality with a view to the protection of their proprietary interest. And a substantial violation of that provision would afford to them the right to take the property and to resort to their action for that purpose. And when they had done so the defendant’s right, aside from that given by the contract, was the equitable one of redemption only. The relation of the defendant, until full payment, was that of bailee, and the removal by him of the property from the place where he was required to keep it might be such as to furnish evidence of an unauthorized appropriation of the property and afford a remedy as effectually as a demand and Refusal. (Murray v. Burling, 10 Johns., 172; Spencer v. Blackman, 9 Wend., 167, 169; Carter v. Kingman, 103 Mass., 517.)

The trial court has necessarily held that the removal of the property to Lyons was a violation of the contract and sufficient evidence of appropriation of it to justify the remedy sought by the plaintiffs’ action. But it is contended by the defendant’s counsel that the permission given by the plaintiffs, for the removal of the piano from 117 State street to 21 South St. Paul street, Rochester, wholly discharged the provision restricting removal, and practically eliminated it from the contract. The proposition is applicable to conditions in leases against assignment, and the granting of estates subject to conditions that when such conditions are once dispensed with by license they are gone. (Dakin v. Williams, 17 Wend., 447; Murray v. Harway, 56 N. Y., 337.) But that rule in such cases is founded on reasons which may not be applicable to the question here.

This is matter of bailment. No title had vested in the defendant. The consent that the property might be put into another house in the city, did not in the judgment of the plaintiffs prejudice their right. It was therefore made a substitute by the consent for the place first designated and the provision that it should not be removed! without their consent, still remained a provision of the contract and was within its spirit and meaning as the parties evidently understood it. The consent to removal was not general in its terms or effect,, but was to removal to another house in the same city. The action proceeds on the ground that the detention by the defendant was-unlawful. The situation was such that the plaintiffs had the right: to demand and reclaim the possession of the property. The defendant without the knowledge or consent of the plaintiffs, and in violation of the agreement, removed it into another county. This, we think the trial court was justified in treating as evidence of conversion under the circumstances, and sufficient to support the.conclusion there reached.

The judgment should be affirmed.

Smith, P. J.., and Bakkee, J., concurred.

Judgment affirmed.


author: Beadley, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WILLIAM CLEMONS, Appellant.

      JRape — what evidence will justify a conviction of it — proof that complaint was made after the offense, by the prosecutrix — the name of the person accused by her cannot

    The facts of this case, as to the defendant’s resistance, considered, and held to he sufficient to sustain the verdict of a jury convicting the defendant of rape.
    Upon the trial the prosecutrix testified that the morning after the rape had been committed she went to the house of a neighbor and made a complaint and stated to the persons there present what had occurred. These persons were subsequently called as witnesses, and after stating that she came to the house on that morning were asked, substantially, “did Cora (the prosecutrix) at that time charge that upon the preceding night William Clemons (the defendant), made an assault upon her and forcibly had sexual connection with her? ”

      Jffeld, that it was error to allow these persons to include in their testimony the name of the person whom the prosecutrix charged with having committed the rape.
    That although it was difficult to see how the insertion or omission of his name-in such testimony could in this case prejudice the defendant, yet as the verdict largely depended upon the credibility of the witnesses the judgment should be reversed and a new trial ordered.

      Appeal from a judgment of the Allegany Sessions, convicting the ■defendant of the crime of rape.
    - It was by the indictment alleged that the crime was committed •on the person of Cora Tuttle. The occurrence on which the charge was founded, took place at the house of the father of the defendant, in Angelica, county of Allegany. The defendant was then eighteen years of age and Cora was of the age of thirteen years. She was an adopted child of the defendant’s parents, and had lived in the family ■about five years. On the morning of the 4th day of September, 1882, the parents went away to be absent two or three days and left the defendant and Cora alone at the house. The evidence in support of the charge is in her testimony, which tends to prove that between nine and ten o’clock of that evening, he forcibly caught •and threw her on to the bed in the sleeping room usually occupied by her, and against her will and consent did the act which is charged •as the crime in question. The defendant, by his testimony, denies the charge, in all respects essential to such offense. And on the -trial his counsel by motion and exception raised the question of the sufficiency of the evidence to justify a conviction of the offense.
    By the judgment of the court, the defendant was sentenced to imprisonment for the term of seven years.

      Rufus Scott, for the appellant.

      George U. loveridge, district attorney, for the respondents.
   Beadley, J.:

It is contended on the part of the defendant, that in any wiew which may reasonably be taken of the testimony of the prosecutrix it was insufficient to warrant or support the verdict, for the reason that what the defendant did was without her resistance or subjection by threats. To support the charge of the crime in question, assuming that the prosecutrix was conscious and had possession of her mental and physical powers, it was necessary that she should resist to the extent of her ability and be overcome by the physical force of the defendant, unless she was by threats terrified into submission or was in a place and so situated that resistance would have been useless. (People v. Dohring, 59 N. Y., 374; 17 Am. R., 349; Oleson v. State, 11 Neb., 276; 38 Am. R., 366.)

The evidence does not show much active resistance on her part after she was thrown on to the bed. And the question arises-whether in view of all the circumstances the evidence was sufficient to warrant the conclusion reached by the jury. The occurrence was in the night time, no person than these two were in the house. The prosecutrix had sought when she left the lower room to go to her’s up-stairs to fasten the door leading into the stairway, but was required by the defendant to and did unfasten the door before she-left it. It appeared that this door had uniformly been left unfastened nights when the family were in the house. The defendant’s place to sleep while his parents were absent was below. He had no-apparently legitimate reason to go up-stairs that night. He followed her up and she did not go to her room, but out of a window on to the roof of the house. It may be inferred that she did this to-escape from him-. Not finding her the defendant went down and outside the house, and by aid of a lighted lamp saw her on the roof. He again went up-stairs to the window and directed her to come-into the house, and as she approached -the window he grabbed her, pulled her in, blew out the light and threw her on to the bed. She hallowed, he put his hand over her mouth to stifle her noise, told her to shut up, and held her on the bed, and after the accomplishment of his purpose said to her that if she ever told of it he would kill her. The jury were not required to find that she at any time-consented, or that she yielded, except to superior force, and they were at liberty to conclude that the force of the defendant' applied was continued during the consummation of the act. But the evidence permitted the conclusion that she may have done more than she did by way of physical resistance on the occasion. So far as appears she had the free use of her arms and hands, and what use,, if any, she made of them does not appear, nor does it appear that she could have made any effectual use of them by way of attack or resistance. She says he held her down; that she neither bit, struck or kicked him, or pulled his hair; that she was “ scared.” The offense required of her the utmost reluctance and the utmost resistance on her part. (People v. Morrison, 1 Park. Cr. R., 625; People v. Quin, 50 Barb., 128; People v. Dohring, supra)

This rule is to be uniformly observed in cases of this character.. But what is such resistance has relation to the circumstances attending the transaction. If she was overpowered by force and was unable for want of strength to actively resist any longer, or if such resistance was absolutely useless, the crime may have been committed. (Reg. v. Hallett, 9 Car. & Payne, 748; Don Moran v. People, 25 Mich., 356; 12 Am. R., 283; Whittaker v. State, 50 Wis., 518; 36 Am. R., 856.)

The evidence justifies the conclusion that the defendant intended to use all the force necessary, and overcome all resistance onher part to accomplish his purpose, that his assault was violent, and that his physical strength was superior to her’s and sufficient to enable him •to overcome all the resistance she could' command; that he threw Her on to the bed and held her there for such purpose. There does not appear to have been any threat or bodily injury to awe her into a helpless condition, but she says she was frightened and afraid of him and this fear arose at the time he followed, her up-stairs and caused her to go on the roof, where she had never been before, and to hallow there (as may be inferred, for assistance and relief) without effect, and that such fear of him continued until he left her in the bed-room. It does not appear by any evidence that she was overcome by exhaustion or fear further than may be inferred from the circumstances and situation- in which she was suddenly placed by the attach made upon her. That she was rendered helpless, and resistance absolutely useless after she was thrown upon the bed, does not appear other than by her statement that the defendant held her there, and the fact of his greatly superior strength. We find no evidence of any effort on her part then to release herself from him or to resist his attempt to have intercourse with her. It may be that his strength was so far superior to her’s that she was but a feeble child in his grasp, and that the pressure of his weight upon her, and the force by which she was held in the situation in which she was, completely disabled her for any effectual resistance. The fact that it occurred in the night time with no other persons in the house, and with no means or opportunity or hope on her part of obtaining any assistance, may be entitled to some consideration. Her comparative weakness may have given her nc hope of relieving herself from the infliction of the shameful wrong and injury which the defendant had the purpose and power to perpetrate upon her. If the situation was such that she was entirely helpless to resist the act, and it was throughout against her will and consent, and without any submission on her part other than that which the force by him occasioned, it is difficult to see why the case did not properly go to the jury on the main charge in the indictment. If consent in any degree at any time of the occasion be yielded by the female the crime is not consummated, but the yielding to overpowering force may be submission and not consent. (Reg. v. Fletcher, Bell C. C., 63; 8 Cox C. C., 131; 5 Jur. [N. S.], 179.)

In this case it may be that the only thing that the prosecutrix could do was to protest and scream, which she was denied the opportunity of doing by the pressure upon her mouth of the hand of the defendant. And it may be that his physical strength enabled him to apprehend interruption only from her ability to make an outcry, and hence he subdued her means of doing that. Both of these persons appeared and testified before the jury, who had the opportunity to observe their apparent relative strength and physical vigor, and Jn view of the evidence could appreciate the opportunity of the girl ;f thirteen years to resist or escape the purpose of the young man of eighteen years under the circumstances. And there is some evidence tending to prove that their relation was such that he assumed to direct or command her actions and to require obedience. What, if any, influence in view of their respective ages that had upon her was also for the consideration of the jury.

On the whole the evidence was sufficient to go to the jury. And while it was by no means conclusive it was sufficient for their consideration on the question of the main offense charged against the defendant. The question of credibility of the prosecutrix was for them, and we cannot say that the jury were not justified in giving credit to her statement as a witness. And so far as the early complaint by a person so injured may be taken for that purpose, they had that to support her credibility, as it appears that she announced it the next morning to a neighboring family. The court fairly euumitted the case to the jury with ample instructions as to the riile within which the alleged act must be brought by the facts proved and found, to permit them to find the defendant guilty of the crime of rape. And we think their verdict was supported by the evidence “ Having carnal knowledge of a woman by force and against her ■will ” is the common-law definition of the crime. And the statute -defining it as “forcibly ravishing any woman of the age of ten years or upwards ” (2 E. S., 663, § 22) imports the same.

The jury were justified in the conclusion that the act was accomplished forcibly and wholly against the will or consent of the prose-cutrix. (Woodin v. People, 1 Park. Cr. R., 464.)

The prosecutrix testified that the next morning she went to the house of a neighbor and made complaint and stated to the persons there what had occurred. Those persons were afterwards called as witnesses, and after stating that she came there that morning were asked substantially the question: Did Cora, at that time, charge that upon the preceding night William Clemons made an assault upon her and forcibly had sexual connection ■ with her ? Which was •objected to as immaterial and incompetent, and not proper to prove what she said. Exception was taken to the admission of this evi•dence and the answers of the witnesses were in the affirmative.

The contention is that it was error to permit the question ■answered to embrace any statement of the facts complained of by the prosecutrix, or the name of the person by her there charged with the act. In a case of this character the omission of a prosecu-trix to promptly make complaint of the wrong which she has suffered, may be taken as a circumstance against the credibility of her statement as a witness against the prisoner, unless delay in doing it is reasonably excused. (Higgins v. People, 58 N. Y., 377.)

It is therefore competent to prove by the witness to whom made that she did make such complaint. Such proof is not and cannot be treated as any evidence of the fact so stated, but is admissible only upon the question of her credibility. And therefore can be received •only when she has testified as a witness. (People v. McGee, 1 Denio, 19; Baccio v. People, 41 N. Y., 265.) The cases are not uniform as to the extent of the inquiry which may be put to and .answered by the witness to whom such complaint is made. The rule in some of the States permits a full statement in detail of the facts communicated by and embraced in the complaint to be given by the witness. It is such in Connecticut (State v. DeWolf, 8 Conn., 93; 20 Am. Dec., 90; State v. Kinney, 44 Conn., 153; 26 Am. R., 436); in Tennessee (Philips v. State, 9 Humph., 246; 49 Am. Dec., 709; Benstine v. State, 2 Lea., 169; 31 Am. R., 593); and in Ohio (Johnson v. State, 17 Ohio, 593; Laughlin v. State, 18 id., 99; 51 Am. Dec., 444). The rule in England for many years has been more restrictive, and does not permit the admission on the part of the prosecution upon the trial of the statement so made by the pro-secutrix to any extent further tiian that she made complaint of an outrage upon her person. The name of the person who did it, or the place where done, as declared by her at the time of making such complaint is not admissible, nor is any other than the general fact embraced within it, and such is the rule in some of the States. (Rex v. Osborne, Car. & M., 622; Reg. v Megson, 9 Car. & Payne, 420; Rex v. Clarke, 2 Stark, N. P., 241; Reg. v. Walker, 2 M. & Rob., 212; Reg. v. Mercer, 6 Jur., 243; Oleson v. State, 11 Neb., 276; 38 Am. R., 366; State v. Thompson, 38 Ind., 39; State v. Richards, 33 Iowa, 420).

And such limitation has been declared and adopted in this State. (Baccio v. People, 41 N. Y., 265.) And the governing rule here must be deemed such that the particulars of the complaint made by the prosecutrix to a third person, in the absence of the person, charged, are not, to any extent, admissible in chief upon the trial, but that the fact that complaint by the ‘prosecutrix of the outrage, giving the nature of it, was made may be received. And it may also be shown that the name of the person complained of, and other particulars, were mentioned by her to the witness, but what was stated in those respects is not admissible.

In Rex v. Osborne the statement of the name communicated of the person complained of was excluded, and the same was the effect of Reg. v. Megson. The doctrine of these cases seems to be approved in Baccio v. People. The principle upon which this proposition rests is that the evidence of the declarations of the prosecutrix are not admissible in such cases to prejudice the defendant, but her complaint may be proved merely to' show that she ■ did not silently submit to the act afterwards charged against him, as bearing upon the question of her good faith in the criminal proceeding, and thus having relation to her credibility only. And this limitation is so-applied that the general rule which excludes ex pa/rte declarations of one person against another, may not be intrenched upon further than the purpose which permits the introduction of the general, complaint, timely made by the prosecutrix in this class of cases,. requires. That she makes complaint is the fact rather than what she says in making it. "Within the doctrine of the Baccio case, by which we must be governed here, the 'inclusion of the defendant’s name in the inquiry, put to the witnesses called tc verify the fact that she made complaint of ' the injury, was error. That, was a particular fact beyond a mere complaint of the injury. While the questions put to the witnesses were not in the approved form, they do not necessarily import anything more than might be embraced in an inquiry properly made, except by the inclusion of the name of the defendant. And that was of no importance for the legitimate purposes of the inquiry. It is difficult to see how the effect upon the prisoner in this case was anything more or different than it would have been with the name omitted from it, or that he could be prejudiced by it, but in a close case when the question upon which the verdict of the jury largely depends is one of credibility of witnesses, it cannot, as matter of law, be said that some impression may not have been made by, and some prejudice have resulted from, the evidence that she declared the morning after the alleged commission of the offense, that he was the person who did it and the manner -in which he did it. In coming to the conclusion that this was error, we do not consider the propriety or utility of the rule of limitation of the inquiry , nor express any views which might be entertained in that respect if the question were deemed an open one in this State. We now see no reason why the evidence of the appearance and condition of the prosecu-trix that morning when she called upon the neighbor was not competent, and think it was so. (Rex v. Clarke, 2 Stark. N. P., 241.) It is unnecessary to consider any other question presented, as there were no others which seem to have any substantial importance or which may necessarily arise on another trial.

The judgment and convictión should be reversed and a new trial ordered.

Smith, P. J., and Barker, J., concurred.

Judgment and conviction reversed and new trial ordered in the Court of Sessions of .Allegany county, to which court the proceeding are remitted.


author: ÜRADLEY, J.:

text:
    WALTON W. EVANS, Appellant, v. WESLEY GARLOCK and CHARLOTTE GARLOCK, Respondents.

      Money paid under a mistake of fact — when it may be recovered back — when thepa/rty receiving it cannot be charged with interest.

    The plaintiff, having purchased a farm upon the foreclosure of a mortgage given by one Rogers, leased the same to Rogers’ wife at an annual rent of .$'¿,000 a year. Rogers, who managed the farm for his wife, assuming to have authority to act for the plaintiff, signed as his agent a written agreement for the sale of a house and lot taken from the farm to one Charlotte Garlock, and received from her $450 on account of the purchase-price thereof to be sent to the plaintiff. Rogers purchased a draft with the money and sent it to the plaintiff by mail, with a letter advising him that it was sent on account of rent. Subsequently other payments were made by Garlock to Rogers in good faith, none of which were sent to the plaintiff.
    In an action of ejectment, brought by the plaintiff to recover the lot from persons claiming under the said contract, the court decided that the plaintiff was entitled to recover the lot, but that Charlotte Garlock was entitled to recover the $450 received by the plaintiff, together with interest thereon.

      Meld, that the plaintiff was properly required to pay back the $450 received from Rogers, but that it was error to charge him with interest thereon.
    Appeal by tbe plaintiff from a judgment, entered upon tbe ■decision of tbe Wayne county Special Term.
    Tbe action was in the nature of an ejectment to recover tbe possession of a bouse and lot situate in Sodus, in tbe county of Wayne, ■occupied by the defendants.
    Tbe premises in question are a part of a farm of which the plaintiff became the owner in August, 1874, by purchase at a sale on foreclosure of mortgage made by Benjamin F. Rogers, who bad formerly owned tbe land. And, on becoming such owner, tbe plaintiff leased tbe premises to Mary C. Rogers, tbe wife of Benjamin E., for one year, at tbe annual rent of $2,000, payable semi-annually, Mary C. Rogers remained in possession until in November, 1879. Tbe husband managed tbe business of tbe farm for bis wife until that time, and remained on the farm having some management of it until February, 1882, Assuming authority to act for the plaintiff be negotiated with tbe defendant Charlotte Garlock to sell her tbe lot in question, and on the first day of February, 1876, made, in tbe name of tbe plaintiff, a written contract (subscribing tbe name of the latter by himself as agent) with her to sell and convey it to her for $800, of which $450 was payable and paid by her to him for the plaintiff on that day. And he, on the same day, with it procured a draft for the amount and sent it by mail to the plaintiff,, and by the letter inclosing it advised him that it was on account of rent of the farm, and the plaintiff so understood it. The defendant afterwards, from time to time, made other payments to Rogers, ón the contract, none of which were sent to the plaintiff. Rogers-had no authority from the plaintiff to sell the lot or to make the contract, and the plaintiff was not advised that it had been made until early in 1882.
    The defendant Charlotte Garlock supposed Rogers had the power he so assumed to have and entered into the contract.in good faith. And the occupation by the defendants was under that contract.
    The answer alleges the circumstances and asks for equitable relief. The court determined that the plaintiff was entitled to recover the possession of the premises; and that the defendant Charlotte Garlock was entitled to recover of the plaintiff the $450 with interest, and directed judgment accordingly. The plaintiff took exception to the conclusion charging him with liability to pay that sum; and from the judgment entered to that effect he appeals,

      L. M. Norton, for the appellant.

      E. K. Burnham, for the respondents.
   ÜRADLEY, J.:

In view of the relation to the plaintiff assumed by Rogers, at the time the contract was made with the defendant to sell to her the premises in question, he received for the plaintiff the‘$450 then paid, .and undertook to deliver it to him. That was the situation as between the defendant and Rogers. And on the same day he put the money into a draft and forwarded the draft to the plaintiff who received it. The question arises whether the purpose of the payment of it to the plaintiff as he was advised by Rogers at the time of the delivery to and receipt of it by him governs the rights of the parties in respect to the fund.

It is contended on the part of the plaintiff, that when Rogers purchased the draft he appropriated and converted the money and it was no longer characterized as tbe money paid to bim for tbe plaintiff. Tbe draft was tbe mere substitute for tbe money and did not change its character in relation to the purpose for which it was paid and the destination for which it was designed. A trust was assumed by Rogers when he received the money. If he had acted by authority derived from the plaintiff the trust would have been in his behalf and the latter could have followed the money into any ■substituted form his agent might have placed it, and until it had reached the hands of a bona fide owner. Not having any such authority Rogers must be deemed the instrument or trustee of the defendant, for the purpose of applying the money as contemplated by paying it to the plaintiff as purchase-money upon the contract which purported to entitle him to it.

The purpose and relative character of the fund were not affected or qualified by the substitution for it of the draft. (Van Alen v. Am. N. Bank, 52 N. Y., 1; Justh v. N. Bank, etc., 56 id., 483; Newton v. Porter, 69 id., 183; Pennell v. Deffell, 4 De Gex, M. & G., 372, 388.) The draft representing the money went to the plaintiff, apparently for the purpose of paying rent of the farm which was due him from Mrs. Rogers. In this manner Rogers sought to divert it from the object designed and by him understood when he received it from the defendant. And that is claimed to be effectual as an appropriation and to defeat the defendant’s right to recover against the plaintiff. If she had not supposed that Rogers had the authority he assumed to have and represented to her he had, there may have been some difficulty in the way of relief for her against the plaintiff. But she was induced to pay this money by a mistake of fact on her part. And it was not paid to Rogers to become his money. It was by such mistake sent by her through him to the plaintiff, and although the true source and purpose of the money was concealed from the plaintiff, and he received it for a different and specific purpose, he parted with nothing for it and did not become the bona fide owner of the fund. The application of it upon the precedent debt due from Mrs. Rogers, did not make him such. (Cardwell v. Hicks, 37 Barb., 458; Weaver v. Barden, 49 N. Y., 292.) And as against the defendant the plaintiff acquired no right to retain the money. (Utica Bank v. Van Gieson, 18 Johns., 485; The Kingston Bank v. Eltinge, 40 N. Y., 391; U. N. Bank of Troy v. Sixth N. Bank of N. Y., 43 id., 452; affirming 1 Lans., 13.) The relief in view is equitable in character and the question is, which of the parties is in equity and good conscience entitled to the money? The defendant was wholly governed by misapprehension and mistake of the fact in respect to the authority of Rogers, and parted with the money upon the faith and belief that he legitimately represented the plaintiff, ■and was his agent in the transaction duly authorized in that behalf. And the plaintiff, on the receipt of it, neither relinquished or advanced anything which made him the recipient for value in a legal sense. It would seem to follow that upon well recognized equitable considerations he may be treated as trustee of the fund in behalf of the defendant, on his refusal to ratify the purpose for which the money was paid by her. The cases cited by the plaintiff’s counsel do not hold to the contrary in view of the facts here presented.

In Stephens v. Board of Education (79 N. Y., 183) the money was obtained by one Gill from the plaintiff by means of a forged mórtgage, and being liable to the plaintiff for its moneys appropriated by him, he used a considerable portion of the amount so ■obtained from the plaintiff to discharge such liability, and the action was brought to recover money so paid to the defendant. The court held that the plaintiff was not entitled to recover — that the defendant received it from Gill as his money in the ordinary course of business and upon a good consideration, and that a valuable consideration was not required in such a case. It will be observed that the plaintiff there intended to let Gill have the money for himself alone. That case is distinguished from this by the fact that Gill did not assume to act as the defendant’s agent, and the money was not furnished to him by reason of any supposed or assumed relation of him to the Board of Education, and there was no question of trust involved.

In Southwick v. First National Bank of Memphis (84 N. Y., 420), while the draft was accepted with the understanding with the drawer that its proceeds were to be used to pay an outstanding acceptance of the drawers, it was discounted by the defendant for them pursuant to an arrangement that the amount of it should be ■credited in their account with the defendant and applied upon the balance against them in the account. The draft was accepted and paid by the drawee. On refusal of the defendant to permit the proceeds to be applied to the purpose for which the draft was accepted,, the assignee of the drawee of this draft and of the holder of the acceptance before mentioned brought the action to recover the amount. The court held that the plaintiff was not entitled to recover. But in- that case there was no pertinent mistake of any existing fact which, induced the acceptance of the draft; there it was mere matter of expectation, in view of the arrangement with the drawer, that the proceeds should be used in a particular manner of which the defendant had no knowledge. The mere confidence in a drawer that he would faithfully observe the instructions which permit him to obtain the acceptance of his draft, will- not permit recovery of the money from one who has taken it in the regular course of business upon good consideration and without notice of its purpose as between the parties to it. But that rule may not apply where there is such purpose and the money or liability on commercial paper is furnished by reason of a pertinent mistake of fact. Then the mistake may support relief, as against any party other than a holder in good faith for a valuable consideration. The case at bar seems to be within the rule which justifies relief. Assuming that a demand in such case would be required to support an action to recover the money, it is not necessary to determine whether the rule requiring it is applicable to- such relief by way of equitable defense in the nature of counter-claim, as it does not appear by the record that the question was raised at the trial or by request to find.

The more difficult question arises out of the allowance of interest on the sum which the plaintiff received. It is allowed where the circumstances are such as to show that as between the parties the one recovering is equitably entitled to it; and as a rule it will be charged to a trustee who has used the trust fund, been negligent in paying it over or investing it. (Dunscomb v. Dunscomb, 1 Johns. Ch., 508.) This is founded to some extent upon a breach of trust or disregard of duty as trustee, otherwise the mingling the money with his own and using it in his business does not necessarily have the effect to create a liability to pay interest. (Rapalge v. Hall, 1 Sandf. Ch., 399-404.) The plaintiff was not conventionally a trustee. (Utica Bank v. Van Gieson, 18 Johns., 485.) The money came to him under circumstances which enabled him to understand that it was his and paid to him on a debt justly due. And it is not apparent why he should be charged with interest on the money until he was in some manner in default. The fact that he had the money and may have used it, which he probably did, does not justify the assumption that he has so realized from it as to enable the court to say that his profits upon it have equaled the interest or any sum. lie was not required to give to it accumulation ; and he owed no duty to the defendant in that respect because he had no knowledge that it came from her, or that she in any event would assert any claim to it. The case does not seem to come within any principle which should charge the plaintiff with interest. (Russell v. Duflon, 4 Lans., 399; Robinson v. Corn Exchange, etc., Ins. Co., 1 Robt., 14.)

These views lead to the conclusion that the defendant’s recovery of the sum paid by her, and which went to the plaintiff, is supported, and that she wa§ not entitled to recover interest upon it.

The judgment should therefore be. modified by deducting from the recovery of the defendant Charlotte G-arlock $216 (the amount of interest allowed), as of March 31, 1884 (the date of decision of the court), and as so modified, affirmed, without costs to either party.

Smith, P. J., and BabKbe, J., concurred.

The portion of the judgment appealed from modified by deducting therefrom as of the date of the decision, the sum of $216 allowed as interest, and as so modified, affirmed, without costs of this appeal to either party.