author: BRADLEY, J.:

text:
    GEORGE DEAR, Respondent, v. MASON H. REED, Appellant.

      Conversion of property by one tenant in common — exception to the rule requiring a sale or destruction of the property in order to constitute a comersion — res adjudi-cata— the pa/rty seeking to avoid it must show that the issue in question was not decided — how the grounds of the former decision should be proved.

    In this action, brought to recover for the conversion, of a quantity of wool, it appeared that the plaintiff’s claim was founded upon an agreement under which the plaintiff had worked a farm and cared for a flock of sheep belonging to the defendant. The plaintiff claimed to he entitled to one-half of the wool sheared in June, 1883. Upon the trial it appeared that an action had already been brought by the plaintiff against the defendant for the same cause of action in a Justice’s Court in July, 1883, and that after the issues therein had been tried a judgment had been rendered therein in favor of the defendant. The plaintiff sought to relieve himself from the effect of this adjudication by showing that it was made upon the ground that the first action was prematurely brought, the evidence then produced failing to show that the defendant had at that time converted the wool.

      Held, that as the issues involved were substantially the same the first judgment was pi'ima facie a bar to this one, unless the plaintiff should show that he was defeated in the first action because his right of action had not then accrued.
    That as the parties were tenants in common of the wool which was in the possession of the defendant the plaintiff could not recover without showing a sale or conversion thereof by the defendant; and as neither of these events had occurred at the time the first action was brought, it would be presumed that he was defeated upon that ground.
    That as the wool in question was that of a whole flock, and as there was no evidence to show it was all of one grade, or that the fleeces were of equal weight or condition or value, these facts would not be presumed, and that therefore the case did not fall within the exception to the rule, prescribing the acts which amount to a conversion of property held by one tenant in common, relating to such property as is readily divisible and commonly divided by weight, tale or measure into portions absolutely alike in quality and value.

      It seems, that in determining by oral evidence the grounds upon which the former decision and judgment were made, this fact must be ascertained from what took place on the trial by reference to the evidence there presented for consideration, and that it is not competent for the justice who rendered the judgment to testify in general terms upon what grounds he did or did not reach such determination.
    Appeal by the defendant from a judgment, entered on a verdict rendered at the Ontario County Court, and from an order denying a motion for a new trial.

      The action was brought to recover for the alleged conversion of a quantity of wool, and was originally commenced in a Justices’ Court where the defendant had judgment, and on appeal to the County ■Court a new trial was there taken and the plaintiff recovered $150.
    On the 1st of April, 1881, the parties made an agreement which was reduced to writing but nut subscribed by them or either of them •as follows: “ I, Mason H. Reed, of the town of Gorham, let my farm to George Dear, of Gorham, for one year. He is to have and work all the land that I have to work for one year, and is to find one-half of all the seed, clover and all, and all the grain raised is to be divided and each to have half, and I am to put on the farm all •the sheep that I have on the 1st day of April, 1881, and I am to have all the wool this year, and G. Dear is to have half of the wool next year, and G. Dear- is to have half of the lambs this year, and I have them all next year, and G. Dear is to keep the number of sheep that I have the first of April good out of his share of the increase, and .all the rest is his to sell the culls and keep the sheep as good a lot as he finds the 1st of April, 1881. G. Dear is to take care of them after the 1st day of April, 1881, until shearing, and I am to take care of them after the 1st day of April 1882, until shearing. I give G. Dear one-half of the wool that year, and I am to wash and shear the sheep this year and G Dear is not to have any trouble or expense with them, and G. Dear agrees to wash and shear the sheep next year, and I am not to have any trouble or expense with them. Each has half of the wool in 1882. G. Dear is to find half of the keeping until pasture is good and fit to turn out sheep in 1882.” Then follow some other provisions having no relation to "the sheep or wool. In the spring of 1882, the parties orally agreed that the plaintiff should continue on the place another year on the same terms. He went on under the first agreement April 1, 1881, and for one year from April 1, 1882, continued there under such renewal of it and left the premises April 2, 1883. This controversy has relation to the wool sheared from the sheep in 1883.
    The plaintiff claims that he is entitled to half the wool of that year, and the defendant insists to the contrary. The County Court held with the plaintiff and directed a verdict for him.

      T. H. Bennett, for the appellant.

      J. B. Robson, for the respondent.
   BRADLEY, J.:

The determination of this case requires that construction be given-to the agreement of the parties under which the plaintiff occupied and worked the defendant’s farm for the year ending with the 31st hlarch, 1883, so far as it has relation to the controversy about the wool sheared in 1883 from the sheep on the premises. And if the defendant was entitled to one-half of that wool, then the further question arises whether the recovery in this action was barred by a former adjudication between the parties. The defendant had on. the farm a flock of sheep when the plaintiff went on, the 1st of April, 1881, under the agreement then made, and the provisions of it in respect to the sheep and wool were performed pursuant to-its terms so that the plaintiff had half the increase of the sheep in 1881, and half the wool sheared from them in 1882. The sheep-remained on the place and the plaintiff continued there another year and until April, 1883, under an arrangement to work the farm, upon the same terms and conditions. That is the fair import of the-new agreement and it constituted a renewal of that first made. In the spring of 1881 the slieepi were deemed, for the purposes of the agreement, put on to the farm as sheared sheep, because the wool was then grown, and they were probably sheared about two months after the commencement of the term, and therefore the plaintiff should have none of the wool of that year, but because he was-required to take care of the sheep and lambs thereafter during the season he should have half the lambs of 1881. And because the wool to be sheared in 1882 would grow on the sheep during the term and while the plaintiff had the care of them, and while-half the feed for them would come from his interest in the products of the farm,- etc., he should have one-half the wool clipped from the sheep in 1882, but inasmuch as his term would end before the lambs of 1882 would be dropped, cared for and raised that year, he should not have any of the lambs of that season.

Those are the apparent views and intent of the parties and the-reasons for the agreement as first made. And it may, without difficulty, be assumed that in the renewal of that agreement they were governed in their understanding of it as continued by the same-motives, founded upon the same reasons, as those which gave the-terms to the agreement as first made. The plaintiff was required to take care of and feed tbe defendant’s sbeep through the year and up to April, 1883, during which time the wool for the clip of that year would substantially attain its growth, and within the purpose of the parties as fairly indicated by their agreement, the half of the wool may be treated as part at least of the compensation to the tenant for his care, etc., given to the sheep during the growth of their wool. And the reasonable interpretation of the renewed arrangement for the second term would seem, on its performance by the plaintiff, to entitle him to half of the wool taken from the .sheep in 1883. The plaintiff performed his part of the agreement until April, 1883, and the evidence tends to prove that he was ready and willing to do so up to the time the sheep were sheared, and it is not seriously claimed to the contrary. It seems that the defendant recognized no right in the plaintiff to do anything, in respect to the sheep after the term expired, or any right in him to any part of the wool taken from them that year. But it is contended on the part of the defendant that because the oral arrangement for the renewal purported to be to work the farm another year, and no reference was expressly made to the sheep or wool, the provisions of the first agreement in respect to them cannot be deemed included it it. That contention is not supported. ' The taking care of the sheep and their use constituted part of the considerations involved in the agreement, and the stipulations in relation to them were part ■of it for the letting and taking the farm. In those provisions were included the disposition and use to some extent of the crops of pastures, meadows, etc., of the premises. And the defendant must be deemed to have so understood it, as he left the sheep on the place to receive support and have the care of the plaintiff without any other or different agreement.

These views lead to the conclusion that the interpretation of the agreement for the second year, as claimed by the plaintiff, is the one by which the rights of the parties were governed. There was no question specifically raised by the defendant on the trial in respect to the full performance by the plaintiff and his readiness to perform the agreement on his part in those things required of him after the expiration of the term in 1883. The court was justified in the conclusion that no question in that respect was presented for consideration.

The other question may not be free from difficulty. In Jui 1883, the plaintiff commenced an action in Justices’ Court against the defendant for the same alleged cause of action as that charged by the complaint here, and all the matters alleged were denied by the answer. The issues were tried and submitted and judgment rendered for the defendant. This action was afterwards brought and that judgment pleaded as an estoppel and put in evidence in this action. The issues in respect to the cause of action, were substantially the same in that as in this action, and when it appeared that it related to the same property the judgment was prima facie a bar and the burden was with the plaintiff to prove that it was not res adjucHcata. The ease in the former action having been submitted to the justice, the judgment which followed was in legal effect on the merits. And as between the parties was conclusive in respect to any matters litigated or which came within the legitimate purview and might have been litigated and determined in the action. (Smith v. Smith, 79 N. Y., 634; Leavitt v. Wolcott, 95 id., 219.) It is claimed on the part of the plaintiff that the former action was prematurely commenced and that the right of action had not then accrued. If that proposition of fact is established the action is-relieved from the force of that judgment as a former adjudication,, because it is only when a right of action has accrued so that judgment may have been supported in that respect that, it can ordinarily be treated as a bar to an action subsequently brought. (Quackenbush v. Ehle, 5 Barb., 469; Marcellus v. Countryman, 65 id., 201; Nelson v. Couch, 15 C. B. [N. S.], 99; Angel v. Hollister, 38 N. Y., 378; Stowell v. Chamberlain, 60 id., 272, 276.)

The plaintiff’s alleged title was in question in that action, and his right to recover depended as well on the determination of that as on the question of conversion by the defendant of the property. And it is contended by the counsel for the defendant that the title was determined against the plaintiff in the former action. If that were so the judgment would be a bar to a recoveiy here. The judgment is necessarily general in its terms and discloses no ground upon which it was rendered and presumptively it is a determination of all the issues involved; but when it is made to appear that there was no right of recovery because the alleged cause of action had not accrued, the legitimate inference is that the plaintiff’s recovery was defeated on that ground, as for that reason he had no right te relief. And such would be the 'presumption. (Wilcox v. Lee, 1 Robt., 355; S. C., 26 How., 418; Id., 1 Abb. [N. S.], 250.)

The important question therefore is whether it appears that the first action was prematurely commenced. The wool had been taken from the sheep and was in the defendant’s possession and unsold at the time that action was commenced and tried. If the right of action for conversion depended upon a sale or destruction of the property by the defendant the action was premature.

The parties were tenants in common of the property, and ordinarily the possession of one co-tenant and his exclusion of the other from it or the refusal on his demand to deliver or sever it is not evidence of conversion. (Gilbert v. Dickerson, 7 Wend., 449; Osborn v. Schenck, 83 N. Y., 201; affirming, 18 Hun, 202.)

But the rule requiring sale or destruction may not apply when the property is in its nature severable 'in respect to quality and quantity by weight or measure, and the interests of the respective owners in common are clearly defined. In such case the refusal of one tenant in common having possession of the whole to permit his co-tenant to sever and take his share from it may support an action as for conversion. (Lobdell v. Stowell, 37 How., 88; affirmed, Id., 96; 51 N. Y., 70; Channon v. Lusk, 2 Lans., 211; Stall v. Wilbur, 77 N. Y., 158-164.)

If the fact had arisen when the first action was commenced, requisite to support the action for conversion, the judgment was a bar although the plaintiff there may have failed to ]iroduce the evidence in support of it. For the purposes of the question now under consideration it is not so important what the evidence was in .that respect on the trial of that action, as it is to ascertain whether the alleged right of action had then accrued by any act or adequate words of the defendant which would sustain the allegation of con version by him.

This proposition may present two questions: 1. Was the character of the property such that it was definitely severable, in specie, by weight, or measure, so as to give equality in quantity, value and quality, to the parties in severalty ? 2. And if that be so, had anything occurred prior to the first action which constituted conversion or evidence in support of it ? It does not appear that the wool of these sheep was all of one grade; that the fleeces were of equal weight, or that the condition or value of all of it was the same. It is a well recognized fact that grades of wool differ and that tbe market value is governed by the grade and condition of it. It is not sufficient that by the exercise of the judgment of competent persons a division could be made into two parts of approximately equal values. Such severance might require a difference in weight. And then the exact equality in value given by the division might not have the support of uniformity of opinion.

The exception to the rule that an action for conversion will not lie in favor of one tenant in common against his co-tenant unless the property is lost or destroyed (which includes a sale by the latter) is limited to “property readily divisible and commonly divided by weight, tale or measure, into portions absolutely alike in quality and value.” (Channon v. Lusk, 2 Lans., 213.)

To maintain such an action, not supported by the rule, the burden is with the plaintiff to establish the fact that it is within the exception, and for the purpose of making the former action and judgment a bar, the defendant is required to make it appear that the support of that action did not depend upon the loss, destruction or sale of the property.

This is matter of proof, not of legal presumption. Absolute accuracy of partition of the several kinds of grain in bulk may respectively be made by weight or measure, because it is assumed that all portions of each are nndistinguishable in quality or value. (Kimberly v. Patchin, 19 N. Y., 330.) And the same rule may be applied to money having a like standard of value. But it is difficult to see how it can be extended to the wool taken from a flock of sheep, unless it appear that the several fleeces correspond completely in grade, quality, condition and value. It is a well-advised fact of common understanding that there are various grades of wool, and that' the value is dependent on that and upon the condition of wool of the same grade. And it cannot be assumed that it is practicable to divide each fleece into two parts without prejudice to its market value.

It seems to follow that the conclusion that the property in question was such as to come within the exception to the rule before mentioned is not permitted by the evidence. And that as no sale by the defendant of the wool had been made at the time of the first action and judgment, but it was then in his possession unimpaired, no right of action was then in the plaintiff. (Hall v. Page, 4 Ga., 428; S. C., 48 Am. Dec., 235; Lobdell v. Stowell, 51 N. Y., 70-73.) The view taken renders it unnecessary to consider the other question. If the property came within the exception and was divisible for the purposes of the action, whether there was any fact tending to support the charge of conversion at the time of the first action was a close question upon the evidence. (Thomas v. Williams, 32 Hun, 257; Lobdell v. Stowell, supra.) We think, for the reasons before given, that the only evidence or fact of conversion was the «ale of the wool hy the defendant, made after the judgment in the former action and prior to the commencement of this one. And that the question in that respect was properly disposed of as one of law by the court below.

If the views thus given are correct the question raised upon the exceptions taken to the admission of the evidence of the justice, before whom the trial of the first action was had, of the ground upon which his determination and judgment were founded, becomes unimportant in relation to the result of the trial of this action. "While it is necessarily legitimate to ascertain by oral evidence the .grounds on which a decision and judgment of a court are rendered when the importance of the question arises, it has been held that the fact must be obtained from what took place on the trial by .reference to the evidence presented there for consideration, and that it is not competent for the justice who rendered the judgment to testify in general terms upon what ground he did or did not reach his determination. (Agan v. Hey, 30 Hun, 591.) From what has already been said it follows that none of the defendant’s exceptions were well taken, and the case seems to have been properly disposed of on the merits, and as the apparent rights of the parties iairly required.

The judgment and order should he affirmed.

Smith, P. J., and JBaeKee, J., concurred.

-Judgment and order affirmed.


source: Caselaw Access Project

author: Headley, J.:

license: Public Domain

text:
    ELIZA GLENN, Respondent, v. LOUISE C. BURROWS and Others, Appellants.

      Note gimen by a deceased person — when the holder does not release the estate by accepting a note signed by the executors — laches in prosecuting a claim — evidence — what is admissible as cmstituting a part of the res gestee.
    One .Burrows died on March 80,1879, leaving a last will and testament under which letters testamentary were issued to four executors named therein. Pursuant to a written instrument signed by the other executors the sole management of the estate was committed to two of the executors, Warner and Stewart, who took charge thereof until the death of the latter in February, 1883, and thereafter Warner alone managed the same until August, 1884, when he, having become a defaulter, absconded. Warner had so wasted and depleted the estate as to make it doubtful whether the remaining assets would discharge the debts and liabilities, although at the time of Burrows death the assets were more than sufficient for the discharge of all debts, legacies and devises.
    In May, 1876, the testator had given to the plaintiff his promissory note for $2,000, payable six months after date, with interest at six per cent. January 31,1880, Stewart and Warner gave to the plaintiff a new note, signed by them as executors, for $2,000, payable six months after date with interest at five per cent. The first note was then surrendered to them. On March 14,1881, another note for $2,150, the amount of the second note and the interest then-due, with thirty-eight dollars then advanced to the executors, was signed by the same executors and given to the plaintiff, who then surrendered the second note. Interest upon the last note was paid up to March 14, 1884.
    This action was brought by the plaintiff against the executors, and the devisees, legatees, heirs-at-law and next of kin of the deceased, to recover the amount due to her.

      Held, that it was proper to receive the testimony of the plaintiff as to the conversation she had with the two executors at the time she surrendered the note of the testator, as it was a part’of the res gestee and tended to characterize the transaction and prove the understanding under which the parties acted.
    That as it appeared from the circumstances surrounding this transaction that it was not the intention of the parties to give up the rights which the plaintiff had against the testator’s estate under his note, that the claim of the plaintiff against the estate was not discharged by the surrender of the testator’s note and the acceptance of the renewal notes signed by the executors.
    That the plaintiff had not been guilty of any laches which should prevent her from resorting to the legatees and others above named to recover such amount as might be necessary to satisfy her claim.
    That she was not, however, entitled to recover from the estate the thirty-eight dollars advanced to the executors when the third note was given.

      Appeal by the defendants from a judgment, entered upon a decision made at the Orleans County Special Term.
    The action was brought in behalf of the plaintiff, and others in like manner interested who might come in, against the surviving executors of the will of Roswell S. Burrows, deceased, the devisees and legatees of his will, and the heirs and next of kin of the deceased having any right to share in the estate of the testator. The purpose of the action is to recover against the executors the amount of an alleged claim of the plaintiff, and to charge the devisees, legatees, heirs and next of kin for any deficiency, to the extent of the receipt by them of the proceeds of the estate of the testator since his "decease, and for the appointment of a receiver to take charge of the estate.
    Roswell S. Burrows died March 30., 1879, and upon probate of his will letters testamentary were issued to Louise C. Burrows, William R. Burrows, Albert S. Warner and Alexander Stewart, who accepted the trust. The sole management of the estate was committed to Warner and Stewart in accordance with the provisions of a written instrument to that effect executed by the other executors, and they continued to do so until the death of Stewart in February, 1883, when the execution of the trust was in like manner devolved upon Warner alone, who continued in the sole management until in August, 1884, when he, having become a defaulter to the estate for a large amount, absconded from the State of New York. In the meantime he had wasted and so depleted the estate that it was apprehended that there was a deficiency of assets to meet the debts and liabilities.
    In May, 1876, the testator had made to the plaintiff his promissory note for $2,000, due at six months with interest at the rate of six per cent per annum. And from time to time up to May 27, 1879, payments of interest were made and indorsed upon the note. On the 31st of January, 1880, the executors, Stewart and Warner, paid the interest to that time, and gave to the plaintiff a note of that date for the principal sum $2,000, due at six months with interest at the rate of five per cent per annum and to their names, subscribed to the note, added their representitive title of “ executors of estate of R. S. Burrows.” The first mentioned note was delivered up to them with an indorsement upon it “paid $81.33 interest to January 31, 1880. Made new note for $2,000, six months, five per cent, Eliza Glenn,” .and on 14th. March, 1881, another note for $2,150, due at six months, with interest at five per cent, was made to her by the same ■executors and subscribed by them in like manner. The amount of this note was made up of the principal and interest of the preceding ene, and thirty-eight dollars then advanced to them by the plaintiff, to make the sum for which it was made, and their other note was then ■surrendered. Upon the note for $2,150, last given, was paid and indorsed the interest frorq time to time up to March 14, 18t>4, but none of the principal sum secured thereby has been paid. The trial ■court directed judgment, which ivas entered substantially for the relief prayed for by the complaint, and that the receiver before then temporarily appointed be continued. The defendants took ■exceptions to the several conclusions of the court, except that in respect to the receiver, to which no opposition was finally made.

      BIma/rt & Sutherland, for the appellants.

      John Gunneen, for the respondent.
   Headley, J.:

The question is whether the claim of the plaintiff, which was evidenced by the promissory note of the testator, Roswell S. Burrows, was at the time of the commencement of this action properly chargeable against his estate. The contention on the part of the defendants is: 1st. That the debt of the testator was paid and discharged as .aeainst his estate, by the acceptance of the notes of Stewart and Warner : 2d. That by laches on the part of the plaintiff in thus taking their notes, she has denied to herself the right to share in the ■estate to the prejudice of the other creditors, and the devisees and legatees of the will.

The defendants have not alleged payment or satisfaction of the plaintiff’s claim as against the estate. And although it may be •questionable whether on the trial that issue was treated as in the •case, we are disposed to consider it on the merits in that respect. The trial court found that there was no agreement or understanding to that effect at the time of the making by the executors of the notes •or either of them to the plaintiff, and that her debt as against the estate of the testator was not paid or extinguished, and this conclusion is supported by the evidence. The plaintiff states the circumstances attending the giving of those notes, and under which she accepted them and surrendered that given to her by the testator. And they were such that no purpose on her part, or on theirs, was evinced to relinquish the liability to her which the original note imported or to substitute for it the personal undertaking of Stewart and Warner, but it appeared that on their suggestion the new note was given and taken in renewal of the original one, and to continue in that form and at a less rate of interest the evidence of the claim against the estate. Ordinarily the surrender by a creditor to the debtor of the promissory note of the latter on the acceptance of a note of a third person for the amount is primafacie evidence that it is taken in satisfaction of the note so surrendered. (Youngs v. Lee, 12 N. Y., 551; Pratt v. Coman, 37 id., 440; Phœnix Ins. Co. v. Church, 81 id., 218, 225.) But whether the original debt is in fact discharged depends upon the intention of the parties as evidenced by the agreement and circumstances under which the note and the surrender were made. There'is no presumption of discharge of a precedent debt by the delivery to and acceptance by the creditor of a note or other obligation of a third person on account of it, but the fact depends upon evidence for its support. (Tobey v. Barber, 5 Johns., 68; Noel v. Murray, 13 N. Y., 167; N. Y. S. Bank v. Fletcher, 5 Wend., 85; Van Eps v. Dillaye, 6 Barb., 244; Crane v. McDonald, 45 id,, 354.) The two executors were representatives of the deceased maker of the note held by the plaintiff, and as such were treated by her. They, assuming to act in that representative capacity, received the note of their testator from the plaintiff and renewed it “ as evidence of the old debt.” This relation of those two persons, the manner in which the business was done, and the purpose in view, as indicated on the occasion, are circumstances taking from the transaction the apparent effect which ordinarily might be given to the surrender of a security on taking from the debtor the obligation of a third person in place of it. They give to the note the appearance of that of such representatives hy adding that character to their names subscribed to it. The two executors could not, by their note as such, create a liability of, or charge the estate. A note made by them, with their title of executors added, could be treated as theirs and they alone as liable upon it. But in an action against them on their note, given on account of a debt actually due from tbe estate, and upon no other consideration, the deficiency of assets would constitute a defense in their behalf founded on the fact of want of consideration. (Bank of Troy v. Topping, 9 Wend., 273; S. C., 13 id., 557.)

This action is not founded upon the note of the executors, but proceeds upon the assumption that the debt which the testator owed the plaintiff remains undischarged and to enforce its payment. It becomes unimportant to inquire what obligation or liability the individual executors assumed or incurred to the plaintiff upon their note, further than to ascertain its effect (if any) upon the testator’s debt to her and upon the question of liability of the estate to pay it. We think the surrender of the original note to the executors, and taking of theirs and afterwards taking in renewal of the latter the note of March, 1881, did not, in view of the circumstances, have the legal effect to discharge the original debt represented by the testator’s note. The notes of the executors may have had the effect, and probably did operate, to suspend legal proceedings to enforce payment until maturity and default in their payment. And it is in that view that the learned counsel for the defendants contend that the plaintiff was chargeable with laches, which defeated her right to relief, in so far as the rights of others are prejudiced by it.

At the time of the death of Burrows his estate was abundantly sufficient to pay his debts and produce a respectable surplus for the devisees and legatees of his will. It was greatly depleted by the unlawful appropriations and use made of it by the exécutor Warner while under his management, so that the assets unadministered are deemed insufficient to discharge the remaining debts, and there may be a liability of the legatees and devisees to account for what they had received of the estate, and to pay over the same or a portion of it to meet such deficiency. And it may be that the plaintiff might have obtained payment from the executors early, if she had required it, of the debt due her. And it is possible that if it had then been paid, the assets of the estate would have been no less and in no worse condition than they were at the time this action was commenced. But it is difficult to see how the defendants can legitimately assert the abuse and breach of the trust by the acting executors, and the consequent impairment and waste of the estate, in support of the charge of laches on the part of the plaintiff, for it is only from the depletion thus occasioned that prejudice results to the other creditors and the devisees and legatees. There was no legal duty on the part of the plaintiff to insist on payment or to take any proceedings to enforce it within the time covered by the extension given to the executors to pay. No notice was given by them to creditors to present their claims, and her’s was not disputed. The plaintiff was not required to apprehend that those executors would, in violation of their trust, appropriate and dissipate the estate which was given into their exclusive charge and management, by the other executors, who were also clothed with authority and charged with duty which they deemed it unnecessary for them to exercise by reason of confidence in their two acting associates. It does not appear that the two executors who made the note'to the plaintiff treated it as so much paid by them, or deemed themselves entitled to credit for the amount, or that they received or took any funds from the estate in consequence of liability so assumed. Nor does it appear that the dormant executors in any manner understood that the debt was paid or that the estate was relieved from it, or that any funds were displaced in consequence. In fact, so far as appears, none of the parties had reason, from anything of which they were advised, to understand or assume that the debt as against the estate was discharged.

In James v. Hackley (16 Johns., 273), one of several administrators gave his individual note for the amount of an alleged debt of the intestate to the payee, and afterwards gave another in renewal, and having thus assumed the debt he received money of the estate to pay it, and three years after giving the note became insolvent. It was held that the administrators as such were not liable to pay the debt for the reason that the note of Hackley was deemed taken in satisfaction of the debt in view of the circumstances attending as well as following the taking of his note, and upon other grounds. That case furnishes no support for the defendant’s contention here.

There was no error in the reception of the testimony of the plaintiff relating to the conversation she had with the two executors at' the time they received the testator’s note and gave her theirs. The statements made by them at that interview were competent as part of the res gestae to characterize the transaction of taking tbe one and giving the oilier note, and to prove the understanding between them under which it was done, and the evidence was received for that purpose only. The testator’s note having-been surrendered to the executors, one element of fact involved was whether it was or was not done under circumstances which would discharge the debt as against the estate, which rendered the evidence of the transaction admissible, of which the declarations attending and relating to it constituted a part, hi one of the exceptions to refusals to find as requested were well taken. The court was not required to find the evidence of facts, nor facts not material to the issues nor such as were not unquestionably established by the evidence.

The conclusions of law are justified by the facts found, and they are supported by the evidence, except the finding of the fact that there was $2,150 and interest from 14th March, 1884, due and unpaid upon the debt in question, when it should have been thirty-eight dollars less, as the latter sum was advanced to the two executors in March, 1881, and constituted no part of the debt which the testator owed her. And to that extent the exception to that finding was well taken. (Code Civil Pro., § 993.)

The judgment should be modified by deducting from the amount of it thirty-eight dollars and interest from March 14, 1884, and, as so modified affirmed, with costs to be paid by the receiver out of the proceeds of estate.

SMITH, P. J., and Babkeb, J., concurred.

So ordered.


author: Beadlet, J.:

text:
    LOUIS M. BROCK AND MAGNUS WIENER, Respondents, v. BENJAMIN KNOWER and Others, Appellants.

      Statute of frauds — when the acceptance of a pa/rt of the goods takes the whole contract out of the statute — va/riance between the proof and the allegations of the complaint, when immaterial — measure of damages for the breach of a contract to sell goods.

    The plaintiffs and defendants entered into an oral agreement whereby the latter agreed to sell to the former five cases of cloth at thirty-five cents a yard, together with sample pieces from which the plaintiffs were to select the styles desired, and advise the defendants of the time for the delivery of the cases. The defendants subsequently shipped three sample pieces to, and the same were received and accepted by the plaintiffs, eacli of which consisted of upwards of forty yards, for the price of which the plaintiffs were by the agreement to be charged. The defendants subsequently refused to ship the cases of goods as ordered by the plaintiffs upon the ground that the contract was void under the statute of frauds.

      Held, that the evidence was sufficient to sustain a verdict that the contract was an entire one, and that the acceptance of the samples took the contract out of the statute.

      Seymour v. Davis (2 Band!, 239), and Aldrich v. Pyatt (64 Barb., 391), criticised and not followed.
    At the time of sending the samples the defendants wrote to the plaintiffs saying, “for any further orders the price will be thirty-seven and a-half cents per yard.”

      Held, th^t it was for the jury to say whether or not the defendants intended to refer to the five cases which they had already agreed to sell.
    The defendants claimed that as the complaint alleged a sale of the five cases only, and as the proof showed no valid agreement for the sale simply of five cases, it was error for the court to allow the plaintiffs to prove the sale of the samples and the five cases, and to validate the entire contract by showing an acceptance of the samples.

      Held, that it was proper to receive the evidence.'
    That the measure of damages was the difference between the contract-price and the market value at the times at which the plaintiffs directed the cases to be delivered.
    Appeal by tbe defendants from a judgment, entered on a verdict at tbe Erie Circuit, and from an order denying a motion for a new trial made upon a case and exceptions.
    Tbe action was brought upon an alleged contract for tbe sale and delivery of goods by tbe defendants to tbe plaintiffs and to recover damages for a breach thereof on tbe part of tbe defendants occasioned by their refusal to deliver.

      The plaintiffs claimed that an oral agreement was made at the defendants’ store in the city of New York, in November, 1879, by which they agreed, to sell and deliver to them five cases of Echo Lake cassimeres, containing 600 yards each, at thirty-five cents per yard; that in the contract was included sample pieces to be delivered, and from which the plaintiffs would select styles and advise of the time for delivery of the five cases.
    The defendants caused to be sent to the plaintiffs, and they received and accepted, three sample pieces of upwards of forty yards each, designated as styles 1,001, 1,002, 1,003. And thereupon the plaintiffs, by letter, requested the defendants to send to them on January tenth or fifteenth one case 1,001, one case 1,002 and one case 1,003; and on March tenth or fifteenth one case 1,002 and one of 1,003. In the meantime the price of the goods had advanced, and the defendants refused to deliver them at thirty-five cents per yard. The plaintiffs recovered.

      8. Lockwood, for the appellants.

      Norris Morey, for the respondents.
   Beadlet, J.:

The alleged contract, when first orally made, was within the statute of frauds and void. The question here is, whether there was such acceptance by the plaintiffs of part of the goods embraced in the agreement as to give to it validity as one for the sale and delivery of the property in question. The absence of any written note or memorandum of the contract subscribed by the parties to be charged rendered it void, unless the buyers accepted and received part of the goods, etc. (2 R. S., 136, § 3.) The receipt and acceptance required in such case, by the statute, embraces delivery by the seller pursuant to the agreement, and in partial performance of it, of part of the goods so accepted and received.

One important question is whether the evidence supports the conclusion that the agreement to sell the sample pieces and the five cases of goods was one entire contract, or whether the engagement to furnish the pieces was a preliminary one and distinguished from the agreement to sell and deliver the cases. There is evidence tending to prove that the plaintiffs’ order for the five cases at thirty-five cents per yard was taken by tbe defendants and given tbe form of an unqualified agreement between tbe parties, and that at tbe same time it was agreed that tbe defendants should deliver to tbe plaintiffs tbe sample pieces at tbe same price, upon tbe receipt of which (be latter would direct tbe styles and date of delivery of tbe five cases, thus making an agreement to sell and deliver the five ■cases and tbe pieces.

Tbe defendants’ counsel contends that tbe contract was not an •entirety, and that tbe delivery of tbe sample pieces was a complete performance of one of two agreements, and that tbe one to sell and deliver tbe cases was another, and was not rendered effectual by such delivery and acceptance, and that they were characterized as distinct agreements by tbe fact that tbe articles were not deliverable nor .the prices payable at tbe same, but at different times in tbe future. And in support of such contention cites Seymour v. Davis (2 Sandf., 239), and Aldrich v. Pyatt (64 Barb., 391). Tbe fact that tbe sample pieces were to be delivered first, and tbe cases at time or times subsequently, does not of itself necessarily deny to tbe acceptance of tbe former tbe effect of making tbe agreement to deliver tbe latter valid. The views of the court given in Seymour v. Davis (supra), and in Deming v. Kemp (4 Sandf., 147), apparently sustain tbe position that a contract within tbe statute of frauds to sell and deliver goods, and to pay for them at future and different times, is not validated as a whole by tbe delivery and acceptance of one or more of tbe several parcels of it pursuant to the contract,' but that they must be treated as several engagements for sale and delivery; and that each delivery and acceptance provided for by tbe contract is in recognition of a distinct contract and its complete performance and that it has no effect by way of relation upon tbe then fnture unperformed stipulations. And the former one of those cases seems to assert tbe proposition, that an acceptance of a part of tbe property subsequently to tbe making of tüe oral agreement does not have the effect to take it out of tbe statute of frauds. So far as these two cases may be treated as so bolding they are not in harmony with tbe approved current of authority giving construction to tbe statute, and to tbe effect of partial delivery and acceptance, although tbe. time of delivery and of payment is in the future and at different periods. (McKnight v. Dunlop, 5 N. Y., 537; Boutwell v. O’Keefe, 32 Barb., 434, 437; Van Woert v. A. and S. R. R. Co., 67 N. Y., 538.)

In Aldrich v. Pyatt, where tbe oral contract was to sell a quantity of apples and barley, the former to be delivered at once and the barley later, it was held that it embraced two distinct agreements, and that the delivery and acceptance of the apples did not validate that to sell the barley. If the court was right in the fact that there-were two distinct contracts the conclusion was right. The justice who there delivered the opinion cited in support of his position Tipton v. Feitner (20 N. Y., 423), which presented an entirely different question and had relation only to the familiar rule that where several parts of a contract may be taken distributively in respect to time of payment as performance proceeds, and where-entire performance is not made a condition precedent, the right to-demand and recover payment to the extent of performance may exist although there has been failure or refusal to complete it. And the remedy for such default or breach is by way of recoupement or action only. (Sickels v. Pattison, 14 Wend., 257; Snook v. Fries, 19 Barb., 313.)

The fact, therefore, that the property was deliverable and the purchase-money payable at different times in the future did not necessarily deprive the contract in question of the character of entirety, or make it other than a single one in respect to all the goods embraced in its terms. The jury have found that the agreement was made as claimed by the plaintiffs, and that it was a single contract for the sale and delivery of the five cases and the sample pieces of the goods; and we think they were justified in so doing upon the evidence. The question arises whether the conclusion that the delivery and acceptance were such as to validate the agreement to sell the five cases is supported. The pieces were evidently delivered with the intent to vest title to them in the plaintiffs ; and the latter accepted them as owner, and the inference was legitimate-that the delivery and acceptance were pursuant to the agreement referred to. But it is insisted that they could not have had that •effect, because: 1. The substantive agreement was to sell the five-cases, and the sample pieces were furnished to enable the plaintiffs to select styles of the goods ordered,- which depended upon such selection, and that in legal effect the delivery of them was on -different than tbe supply of samples to a person baying in view a purchase. But samples as such constitute no part of goods embraced in a contract of purchase. (Davis v. Lewis, 7 Durn. & E., 17; Carver v. Lane, 4 E. D. Smith, 168.) Here was something more than samples and different as understood in the trade. They were ■entire pieces of goods, containing together 131 yards, and the contract for the purchase of them was at the same price as that for the goods in the cases, and were therefore a substantial portion of the goods which the defendants agreed to sell to the plaintiffs, and when delivered and accepted the latter became liable to pay for them; and it may not be unreasonable to infer that the plaintiffs would not' have desired to make a purchase of them alone. 2. It is also contended that before the sample pieces were delivered the defendants advised the plaintiffs and they were required to understand that the agreement in respect to the five cases would not be performed and therefore the acceptance of them could not validate the agreement. The defendants did by letter say to the plaintiffs that,_ “for any further orders the price will be 37-§- cents per yard.” And in the same letter they advised the plaintiffs that they had directed the sample pieces sent to them, and they were afterwards delivered. It was for the jury to say whether the defendants included or intended to include in that statement the order for the five cases which had already been given by the plaintiffs and taken by them with the agreement to deliver at thirty-five cents. And the jury have found against the defendants on that question. The evidence was sufficient to present the question of fact whether the delivery made was pursuant to and in part performance of the agreement of which that to sell the five cases was a part, and under circumstances which rendered the receipt and acceptance of the three pieces effectual to validate the agreement.

The defendants’ counsel also insists that the complaint is not supported by the evidence, and therefore the plaintiffs were not entitled to recover. This contention is made for the reason that the complaint alleges only an agreement for the sale of the five cases; that for the purpose of the pleading it is presumed to have been a valid contract and therefore in writing! that the proof fails to show any valid agreement for the sale of five cases, but that the plaintiffs on the trial to justify oral evidence sought to prove an agreement whicli embraced more and other goods and to validate it by proof of acceptance and receipt of them under such other contract. “While the basis of this contention is well founded in fact, we think there was not such variance between the pleadings and proof as to produce error in the reception of the evidence in support of the action on the plaintiffs’ theory. When a cause of action is predicated on an alleged contract which is void unless in writing, and the presumption given to the complaint that it was in writing disappears, the action necessarily fails; or when the-contract alleged appears by the pleading to be legal and turns out-otherwise on the trial the like result must follow. (Livingston v. Smith, 14 How., 490; Washburn v. Franklin, 1 Abb., 8.) But the fact that a contract within the statute of frauds for the sale of goods may be brought within the exception and rendered valid, distinguishes-it from those classes of cases. While the agreement was for the sale of more than five cases of goods, the breach complained of related to them only. And the question was whether it was valid as to them and beyond that the inquiry was not important in respect to its terms for the purposes of the issue. There was no substantial variance produced by the omission to allege the entire agreement.

The rule of damages properly applicable on the evidence was the difference between the contract price and the market value as of the time stipulated for delivery. And there was no error in the refusal to charge otherwise. (Davis v. Shields, 24 Wend., 322; Dana v. Fiedler, 12 N. Y., 40; Messmore v. N. Y. S. and L. Co., 40 id., 422.) The cases where the time of refusal to perform, or within a reasonable time thereafter, is adopted as that at which the market value or cost is to be taken as the basis of estimate of damage, are distinguishable in facts from those of the case at bar’.

Whether the time designated by the plaintiffs for the delivery of the goods was reasonable or not within the meaning of the contract and contemplation of the parties was not a question in the case. The defendants did not make any objection in that respect but put their refusal to deliver on other grounds.

The several exceptions have been carefully examined and none of them seem to have been well taken. And while the questions of fact were in some respects close ones on the evidence, it was suf* ficient to support the result given by the verdict, which we see no occasion to disturb.

The judgment and order should be affirmed.

SMITH, P. J., and BARKER, J., concurred.

Judgment and order affirmed.


text:
    ELLEN O’DONNELL, Respondent, v. ROBERT McINTYRE Appellant.

      Action io cancel a tax sale — requirements of the statute as to certification of the assessment hooks must be strictly complied with — when provisions as to time of certifying will be deemed directory — when the oath of the assessors may be taken before a commissioner of deeds — right of one tenant in common to maintain an action to remove a cloud on the title to land held by several tenants in common.

    By tlae charter of the city of Rochester the assessment of the property within.it, which is to he used by the board of supervisors as the basis for levying the tas, is to be made by the city assessors by the second Tuesday in April, in each year, and after the hooks are completed they are required to he certified ■ and sworn to by the assessors, or a majority of them. The charter further provides that “the assessors shall make and certify to a correct copy of said assessment book, to be delivered to the supervisors of the several wards or election districts, respectively, for the use of the board of supervisors of Monroe county on or before the first day of October, in each year, to be by them presented to the hoard of supervisors of Monroe county as the ward rolls of the city.”

      Meld, that the direction that the assessors should “make and certify to a correct copy ” of the hook implied that a written certificate to that effect should be 'made.
    That the requirement that such a certificate should be made as to the books used by the board of supervisors was jurisdictional in its character, and that a tax levied upon assessments appearing upon a book not so certified was void.
    That the fact that a true copy of the completed assessment book containing the oath of the assessors in the usual form, but not certified, was procured by the clerk of the board and presented to it at its annual meeting, did not render valid the tax attempted to be levied upon the property therein described.
    That the provision requiring the books to be delivered “ on or before the first day of October,” in each year, was directory only, and that a delivery of the books after that time would be sufficient.

      It seems, that since the abolition of the office of justice of the peace in the city of Rochester the oath of the assessors, although required by chapter 176 of 1851 to be taken before and certified by a justice of tlie peace, may be taken before a commissioner of deeds thereof.
    Property is to be assessed to the person who owns it at the time the assessment is made.
    One of several tenants in common may bring an action to remove a cloud upon the title of the laud in which he has an interest
    Appeal by the defendant from a judgment, entered on the report of a referee.
    The action is to remove an alleged cloud upon the title to land, created by a deed made by the treasurer of Monroe county to the defendant, pursuant to a sale for unpaid taxes. The conclusion of the referee was that the deed was void. The plaintiff recovered judgment.

      J. A. Stull, for the appellant.

      Fanning dk Williams, for the respondent.
   BRADLEY, J.:

The premises consist of a house and lot in the Eleventh ward of the city of Rochester. The assessment was made and the tax levied in 1879, on which was founded the sale of the property. And the question is, whether the jwoceedings by which the tax was levied were a substantial compliance with the statute on the subject, and such as to support the sale and deed of conveyance under which the defendant claims title. The assessors of the city make the assessment of the property within it for the action of the board of supervisors of the county of Monroe in the levy of general taxes. (Laws 1861, chap. 143.) And the time and manner of making and certifying the assessments are prescribed by the city charter, by which it is provided that they be made by the second Tuesday of April in each year, and entered in a separate book for each ward; that immediately after completion the assessors shall determine the time and place of their first meeting to hear objections, etc., of persons interested, of which at least ten days’ notice shall be given by publica-, lion in the daily newspapers of the city; that they shall meet and continue their session for such purpose ten days; that when com■pleted, the assessment books shall be certified and sworn by the assessors, or a majority of them, and delivered to the clerk of the city on or before the fifteenth day of J une in each year, who shall report tbe same to tbe common council at its next meeting, and that “ the. assessors shall malee and certify to a correct copy of said assessment hoolc, to be delivered to the supervisors of the several wards or ■election districts respectively, for the use of the board of supervisors ■of Monroe county, on or before the first day of October in each yearr, to be by them presented to the board of supervisors of Monroe county as the ward rolls of the city. * * * Tbe said assessors •are hereby directed to make sncli additional amendments and corrections in said assessment-rolls as to tbe names of tbe actual owners ■or occupants of real e'state therein assessed as they shall deem proper, at any time before the first day of October in each year.” (Laws 1861, chap. 143, § 87, as amended by Laws 1869, chap. 267, § 5.)

Tbe assessment was made, and afterwards and on tbe 25th day of •October, 1879, tbe assessors severally made and subscribed an oath in respect to tbe assessment for -the Eleventh ward, of tbe form prescribed by the statute (Laws 1851, chap. 176, § 8), before a commissioner of deeds by whom it was certified. No copy of tbe roll was delivered by tbe assessors to tbe supervisor of tbe ward, but tbe clerk of tbe board of supervisors’ obtained a copy, with tbe oath so made and certified, from tbe assessors office, at or prior to tbe time ■of meeting of tbe board, and it was there used as the basis of their action in levying tbe tax upon tbe property of the ward. Tbe assessment of tbe premises in question was to Mary Horrigan, at tbe value of $925, and the tax levied upon it was seven dollars and sixty-one cents. A warrant was issued, and for failure to collect and default in payment, tbe premises were sold August 18,1880, by tbe treasurer of tbe county, pursuant to Laws of 1877, chapter 104, and by him bid in for tbe supervisors of tbe county for tbe last mentioned sum. And afterwards, on the 11th day of March, 1882, be assigned tbe certificate of sale to tbe defendant in consideration of such amount and interest, as authorized by statute (Id., § 13), and on tbe 29th August, 1882, made to him a deed. And on the thirtieth of that month tbe defendant served a written notice on the occupant,'as required by tbe statute (Id., § 15), and filed in tbe office of tbe treasurer evidence of its service. Tbe attention of tbe plaintiff was called to tbe notice soon after it was served. The premises were not redeemed from tbe sale. Tbe treasurer made the requisite certificate, and tbe defendant claims that on the expiration of six months from the time of so filing such evidence of service the conveyance to him became absolute, a.nd that the plaintiff was barred of all right or title to the-property. That is the effect of the conveyance and proceedings if the provisions of the statute have been substantially observed in conducting the proceedings, of the regularity of which prior to,, and including the sale, the conveyance is presumptive evidence. (Id., 12.) The plaintiff’s counsel say that the conveyance is void,, because: 1. The assessors did not “make and certify to a correct copy ” of the assessment book for the eleventh ward for the board of supervisors as required by the statute. 2. The affidavit of the-assessors was made subsequently to the time they were required to-deliver the copy of their roll to the supervisor. 3. The oath of the assessors was not taken befoye, and certified by, a justice. 4. The assessment was made neither to the owner or occupant of the land; and 5. The notice to redeem was not sufficient.

The proceeding upon which the defendant’s alleged title depends-being one to divest title to property without the consent of the-owner is in derogation of the common law, and to make it effectual for that purpose the statute providing for the proceedings, and affording that effect as the result of them, must be substantially observed and pursued. This proposition has been repeatedly held. (Sharp v. Speir, 4 Hill, 76; Sharp v. Johnson, Id., 92; Newell v. Wheeler, 48 N. Y., 486; Thompson v. Burhams, 61 id., 65.)

The original assessment-rolls were to be delivered to the city clerk for the purposes of the levying the city taxes. And the same-assessment was to go before the board of supervisor's of the county for the purpose of the tax levy to be made by that body upon the-property so assessed. The dual purpose of the assessment and such deposit of the original, required the provision for some method to-place it before the board of supervisors in a properly authenticated manner. In that view the statute directed that the assessors should “make and certify to a correct copy” for that purpose to ¡redelivered to the supervisors of the respective wards and by them presented to the board of supervisors.

This certificate of the assessors was the only statutory evidence-provided for the board of supervisors, of the assessment made of city property. The propriety of this mode of authentication is not a subject for consideration. The fact that sucb is the legislative-direction gives to it the character of materiality and requires compliance with that provision of the statute. And it will not do to-say that because the requisite fact is . .iar. the board of supervisors have a correct copy its correctness can be equally as well established by other than the statutory evidence. In a proceeding of the character of that in question the statutory prescribed evidence of an essential fact upon which action is to be taken is no less important for the purposes of the result than the existence of the fact itself, although such evidence may not be conclusive of the existence of such fact on a direct review. (People ex rel. Rogers v. Spencer, 55 N. Y., 1.)

The board of supervisors when they levied the tax upon this property had before them what purported to be a copy of an assessment-roll of the property in the eleventh ward, with only such evidence that it was such as appeared upon or with it. There was no certificate that it was a correct copy of the roll. (Laws-1869, chap. 267, § 5.)

The affidavit accompanying it is merely the oath required to an assessment-roll, and does not in terms import anything more than that the assessors had made the assessment represented by the roll in the manner prescribed by the general statute.

The purpose of the statute constituting the city charter was to-have the assessment of city property for the levy of its taxes the same as that for levy of taxes by the board of supervisors and only one assessment annually for both. To that extent the general statute on the subject was modified as applicable to the city. This could not be accomplished without having a copy of that made in April before the board of supervisors in the fall following. The affidavit furnished no evidence that the one produced there was a copy and cannot be treated as a certificate to that effect.

It follows that the board did not have the authentication required by the statute to enable them to legitimately assume that the roll was that upon which they were permitted to make the tax levy. This would seem to have been a substantial defect in the proceedings. (Van Rensselaer v. Witbeck, 7 N. Y., 517; Westfall, v. Preston, 49 id., 349; People ex rel. Rogers v. Spencer, 55 id., 1; People ex rel. Gillies v. Suffern, 68 id., 321; Merritt v. Port- chester, 71 id., 309; Brevoort v. Brooklyn, 89 id., 128; Adriance v. McCafferty, 2 Robt., 153; Hinckley v. Cooper, 22 Hun, 253.) It is urged by the defendant’s counsel that the want of the certification by the assessors was not a matter of substance, as it had no relation to the act of assessment, and there was no question but that a correct copy of the proper roll was before the board of supervisors and made the basis of their levy. The effect of this contention if supported would be to render the statutory direction, in respect to the manner of authenticating to the board, nugatory and permit them to resort to any convenient means of information, and thus without a record of the fact make it depend upon proof when the question of the validity of the tax levied, and of the title to property derived from proceedings founded on the levy, should arise, one of fact to be tried and determined upon such evidence as might be furnished. That would be contrary to well settled principles applicable to proceedings purely statutory, where the manner of conducting and authenticating them has been defined and specifically required by the legislature, and allow common-law evidence to supply the omission to observe in the proceeding the method of presentation of facts in support of them. The reason which permits departure in one instance may have like support in others, and in such case it would be difficult to locate the line of limitation. The manner directed by the statute for the conducting of such proceedings must be evidenced in the mode prescribed so far as is required by it. And such requirement is treated as matter of substance and as mandatory. The form given to the manner of its execution may not be important when it is a substantial compliance with the statutory direction. (Van Rensselaer v. Witbeck, 7 N. Y., 517; Thompson v. Burhams, 61 id., 52; Brevoort v. Brooklyn, 89 id., 128-132.) There is a presumption when circumstances permit that public officers have done their duty, which, cannot arise when it affirmatively appeal’s that they have omitted some essential act required of them.

In Parish v. Golden (35 N. Y., 462) it was held that the omission of the assessors to express in their affidavit annexed to the roll the exclusion of the amount of a certain class of property in that assessed, as provided by the statutory prescribed form of the affidavit, did not overcome the presumption that they had performed their duty in making the assessment in that respect; and that a mere informal certificate or affidavit did not deny to the supervisors the authority to levy a tax and issue their warrant for its collection. It was there held that the omission was not substantial or material. "While in the later case of Westfall v. Preston (49 N. Y., 355) the Parish case is not criticised, that of Van Rensselaer v. Witbeck is approved.

If the assessment could stand upon the general statute alone, it could, perhaps, be supported, as it apparently corresponds with the substantial requirements of the provisions of that statute. But it is not claimed that proceedings were, or could be, had independently of the provisions of the city charter in making it. The general statute provides that in the several cities the notices required may conform to the requirements of the laws regulating the time, place and manner for revising the assessments in cities, in all cases, where a different time, place and manner are prescribed from that mentioned in the general act. (Laws 1851, chap. 176, §4.)

The provisions of section 8, chapter 267, of the Laws of 1869, must therefore be deemed to furnish the only method in respect to time, place and manner of making and revising assessments in the city of Rochester; it follows that the only assessment made in 1879 was in April, and that the original rolls were filed with the'city clerk. The one presented to the board of supervisors cannot therefore be treated under the statute as an original assessment-roll.

The question in the case at bar, is whether the certifying a copy of it for the board of supervisors was a jurisdictional requirement. We are inclined to think that it was. No particular manner is provided for doing it, but the direction simply is that “ the assessors shall make and certify to a correct copy ” for that purpose. This fairly implies that it shall be done by their certificate in writing. In the Yan Rensselaer case the defective certificate related to the maimer which the assessors had performed their duty in making the assessments, and it was held insufficient to justify the levy of the tax, and the warrant to enforce collection ; while in this case the omitted certificate did not relate to the manner of making an assessment it was required to inform the board that an assessment had been in fact made, and what it was as so made, which was no less important than the manner of doing it for the purposes of the action of tbe board. Tbe rule of strict adherence to the manner of proceeding, prescribed by statute to produce effectual results affecting and divesting titles to property, is adopted with a view to complete accuracy in tbe proceeding and does not permit relaxation, looseness ■or uncertainty by departure from or omissiou to observe tbe legislative direction in any substantial respect.

If these views are correct tbe defendant took no title by tbe deed in question. Tbe other grounds of objection taken by the plaintiff should perhaps have some consideration. Tbe fact that tbe affidavit was not made until October twenty-fifth is not deemed important. Tbe matter of time involved in tbe provision of tbe statute may be treated as directory. Tbe oath required by tbe act of 1851, may not be applicable to that made to the roll for tbe purposes of tbe levy of tbe city taxes, and tbe latter was no part of tbe roll to be certified to tbe board of supervisors.

Tbe act of 1851, section 8, requires that tbe oath of tbe assessors be taken before and certified by a justice of tbe town or city in which they reside, and in view of tbe fact that tbe certificate of tbe officer as well as the oath of tbe assessors is thus directed, tbe requirement of tbe provision in respect to tbe officer must necessarily be observed. (Craft v. Merrill, 14 N. Y., 456; Nat. Bank, etc., v. Elmira, 53 id., 49, 59.) Tbe commissioner of deeds was permitted to administer oaths and take affidavits only when not required to be taken before other and particular officers (2 E. S., 284, § 49), and tbe same provision was transferred to tbe Code of Civil Procedure, section 842. Ey tbe abolition of tbe office of justice of tbe peace, in tbe city of Eochester, tbe statute requiring tbe oath to be taken before and certified by that officer, became impracticable there and ceased to direct that it should be done by him or any particular officer in tbe city. (Laws 1876, chap. 196, § 16.) Tbe official act would therefore seem to come within tbe authority of tbe commissioner of deeds, before and by whom tbe oath was taken and certified.

Tbe time when tbe assessment was made, as provided by tbe statute, controls in respect to tbe ownership of tbe property assessed. (Mygatt v. Washburn, 15 N. Y., 316; Clark v. Norton, 49 id., 243; Clark v. Norton, 58 Barb., 434; Boyd v. Gray, 34 How., 323; Marsh v. Bowen, 12 Abb. N. C., 1.)

Mary Horrigan was owner of tbe premises up to tbe time of ber death, July 11, 1879. Tbe assessment was required to be and must be deemed to bave been made before tbat time. (Laws 1869, •cbap. 267, § 5.) And it properly remained as so assessed to ber upon tbe roll. Tbe time tbe affidavit was taken to tbe roll does not necessarily indicate tbat at wbicb tbe assessment was made. Tbe notice for tbe redemption of tbe premises from tbe sale contained all the information required to be furnished by it by tbe statute. It was not necessary to state in tbe notice tbe day on wbicb tbe sale was made. (Laws 1877, chap. 104, § 15.)

Tbe title to tbe premises became vested in the plaintiff alone or as tenant in common with two others as heirs of Mrs. Horrigan. Tbe question of non-joinder of parties plaintiff is raised by tbe defense. Assuming that tbe plaintiff was one of three tenants in common, she could alone maintain the action for tbe recovery or protection of ber interest.

Tbe judgment should be affirmed.

Smith, P. J., and Barrer, J., concurred.

Judgment affirmed, with costs.


author: Bradley, J.:

text:
    ELLEN O’DONNELL, Respondent, v. ROBERT McINTYRE, Appellant.

      Attornment by a tenant to a stranger — when void as to the landlord — 1 S. 8., 744, see. 3.
    The plaintiff, in 1880, leased a house belonging to her to one Bates. In 1880 the premises were sold, and in 1883 were conveyed, to the defendant for non-payment of taxes, and in February, 1883, his title thereto was perfected. In April, 1883, the defendant went to the premises, notified Bates, the tenant, of his, defendant’s,- title, and demanded possession of the premises, whereupon the tenant delivered to him the keys of the house and agreed to become the defendant’s tenant and pay him rent therefor.
    Upon the trial of this action, brought to recover damages for an assault and battery committed by the defendant upon the plaintiff on the said premises, the question as to which party was in possession arose.

      Held, that the attornment of the tenant to the defendant was void, and that the plaintiff’s possession was not in any way affected thereby.

      Appeal by the defendant from a judgment, entered on a verdict rendered at tbe Monroe Circuit, and from an order denying a. motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for an assault and battery. Both parties claimed possession of a house in the city of Rochester. The alleged assault arose from an effort, and force used, to eject the plaintiff from the house. The plaintiff recovered $1,000.

      J. A. Stull, for the appellant.

      John B. Fanning, for the respondent.
   Bradley, J.:

There is evidence tending to prove, and it was assumed at the trial, that the plaintiff, having title to the house and lot, leased the premises to one Bates, who went into possession as her tenant and paid rent to her; that afterwards, in August, 1S80, they were sold for taxes assessed to one Mary Horrigan; that in August, 1882, a deed pursuant to such sale was made to the defendant in terms conveying the premises to him, and that his title'under such conveyance was perfected in February, 1883, as provided by Laws' of 1877 (chap. 104; Laws of 1880, chap. 127). On 2d Ajiril, 1883, the defendant went to the premises, advised the tenant of the deed and demanded the possession of him, made arrangement with the latter to deliver to the defendant the 'keys of the house, and that the tenant should become his tenant, and pay him the rent thereafter.

The defendant having taken away some of the keys, the plaintiff went to the house on the 5th April with a locksmith to put new locks on the doors and went into the house, when the defendant came there and endeavored by force to remove the plaintiff from the house, but did not succeed. The evidence on her part tended to prove that the defendant used much force in his attack upon the plaintiff to remove her on her refusal to leave the house, and, violently struck and kicked her, and that her injuries received were serious; while his testimony was quite different in respect to the extent of force used.

The question of possession was an important one. If the defendant did not have tbe actual possession of tbe premises be was not justified in tbe application of any force to remove the plaintiff from tbe bouse. Tbe trial court held that be did not have possession of tbe premises, that tbe cause of action was established and that tbe question was one of amount of damages only;

On tbe part of the defense it is contended that tbe defendant having tbe title to tbe premises could, and by tbe arrangement with tbe tenant did effectually obtain tbe attornment of tbe latter to him and tbe relation of landlord and tenant was accomplished, and that such relation between tbe plaintiff and the tenant was terminated. And as a consequence tbe plaintiff was a trespasser and tbe defendant had the right to use tbe requisite force to remove her from tbe house on her refusal to leave it. And thus is presented tbe main question in this case.

It was at the trial and is here assumed that tbe defendant had tbe legal title by virtue of tbe tax deed. But that did not enable him and tbe tenant of tbe plaintiff, without tbe consent of tbe latter, by mere agreement between them to that effect during tbe term, to produce attornment of the tenant to him and take from her tbe relation of landlord.

The matter of attornment had its origin in tbe feudal system, and is as old as tbe laws regulating tenure of real property. And tbe restriction was alike on tbe landlord and tbe tenant so that neither without the consent of tbe other was permitted to substitute another in his place by grant or assignment of the reversion or term. That was founded in the system, and for the reason that tbe obligation of tbe lord and vassal was that of protection and fealty and tbe relation was in some degree personal. (2 Bl. Com., 57, 72, 288.) Tbe necessity for consent of tbe tenant (which was called attornment) to tbe conveyance of the reversion and to vest in the grantee the rights of tbe landlord in respect .to tbe lease and term was wholly done away by statute (4 Anne C., 16, § 9) which has been made tbe law of this State. (1 B. S., 789, § 146 ; Moffatt v. Smith, 4 N. Y., 126.) So that there is no restriction upon tbe right to pass tbe reversion and all such rights by grant to another.

But attornment by a tenant to a stranger is absolutely void and cannot affect the possession of bis landlord unless made with bis consent or pursuant to, or in consequence of, a judgment at law, or the order or decree of a court of equity, or to a mortgagee after the mortgage has become forfeited. (1 R. S., 744, §3.)

The defendant was a stranger within the meaning of the statute. The title which he asserted, and had, was hostile to that which the plaintiff had when the tenancy was created. The case is different when the estate of the landlord is a limited one and terminates after the commencement of the term of the tenant, or if the landlord’s estate or title has been extinguished or transferred by sale pursuant to decree or legal process; then the rights of the latter and his relation to the tenant for all practical purposes pass to the successor to the estate, or to the owner of the reversion thus acquired. (Jackson v. Rowland, 6 Wend., 666-670; Jackson v. Davis, 5 Cow., 124-135; Niles v. Ransford, 1 Mich., 338; 51 Am. Dec., 95; Hoag v. Hoag, 35 N. Y., 471.)

And the tenant may become the purchaser of the reversion at a judicial or other sale, and so acquire the rights of his landlord and relieve himself from liabilty as tenant to the latter. (Nellis v. Lathrop, 22 Wend., 121; Elliott v. Smith, 23 Penn. St., 131; Murrell v. Roberts, 11 Ired. Law R., 424; 53 Am. Dec., 419; Camley v. Stanfield, 10 Tex., 546; 60 Am. Dec., 219; Hetzel v. Barber, 69 N. Y., 1.)

But while his relation of tenant, and possession as such continues, he cannot avail himself of an outstanding title (which he may purchase) to dis23ute the title of his landlord, nor can he then effectually attorn to the person having an outstanding title in hostility to that of his landlord. (Bailey v. Moore, 21 Ill., 165; Lawrence v. Brown, 5 N. Y., 395-405; Kenada v. Gardner, 3 Barb., 589.) He must first surrender up the premises to his landlord before assuming an attitude of hostility to the title or claim of title of the latter. (Towne v. Butterfield, 97 Mass., 105; Miller v. Lang, 99 id., 13; Jackson v. Harper, 5 Wend., 246; Jackson v. Walker 7 Cow., 636; George v. Putney, 4 Cush., 355.)

There is, however, nothing in the way of the purchase of and taking title to an outstanding title by the tenant, which is all that was held in Senior v. Marcinkowiski (1 How. [N. S.], 331). The arrangement made with the tenant to treat the defendant as his landlord having been made without the knowledge or consent of the plaintiff, will be deemed collusive as against her and can afford no right to tbe defendant. (Stewart v. Roderick, 4 Watts & Serg., 188; 39 Am. Dec., 71.)

Tbe tenant continued in tbe possession np to and at tbe time of tbe occurrence in question, and tbe defendant had no possession in fact at that time. And tbe ground upon which be asserted it, was tbe arrangement by which be claimed tbe relation between tbe plaintiff and tbe tenant was terminated, and shifted so as to produce tbe relation of landlord and tenant between him and tbe latter. It may be assumed that this attempt was made during an existing term •of tenancy.

There seems to be no support for tbe contention that tbe defendant was in tbe actual possession of tbe bouse at tbe time of the alleged assault. And assuming that be then bad tbe right to possession by virtue of bis deed resulting from tbe sale for taxes, be was not by it given any right whatever to forcibly eject tbe plaintiff from tbe premises and in that manner take possession of them. (Parsons v. Brown, 15 Barb., 590; Bliss v. Johnson, 73 N. Y., 529; McMillan v. Cronin, 75 id., 474.)

There being no question but that some force was used by tbe •defendant, in bis effort to. remove tbe plaintiff, tbe cause of action was made out, and tbe only inquiry that remained for the jury was us to the amount of tbe recovery which should be given to tbe plaintiff. In respect to tbe character of tbe assault and of tbe injuries received and tbe extent of them, the testimony was conflicting and presented for tbe jury tbe question of credibibty of witnesses which it was peculiarly within their province to determine.

We see no occasion to disturb tbe verdict on tbe merits, and none •of the exceptions seem to have been well taken. Tbe judgment and order should be affirmed.

Smtth, P. J;, and BarKeb, J., concurred.

Judgment and order, affirmed.


author: Smith, P. J.:

text:
    HIRAM C. PETTIBONE, Receiver, etc., Appellant, v. WILLIAM E. DRAKEFORD, Respondent.

      Receiver in supplementary proceedings —power of, to maintain an action to replevy goods mortgaged by the debtor —1858, chap. 314.
    A receiver, appointed in supplementary proceedings, cannot maintain an action of replevin to recover articles of personal property which have been transferred by the debtor, in fraud of his creditors, by a chattel mortgage, where the mortgage has been foreclosed and the property has been purchased and taken possession of by the mortgagee prior to the appointment of the receiver.
    No power to maintain such an action is conferred upon him by chapter 314 of 1858 enlarging the powers of receivers, assignees, etc.
    The only remedy of a receiver in such a case is to bring an action in equity to set aside or remove the fraudulent mortgage.
    The class of receivers referred to by the act of 1858 are those who are vested as-such with an entire estate, or with all the property and effects of an insolvent, for the benefit of all the creditors. A receiver, appointed in supplementary proceedings for the benefit of a single creditor, is not included in the class.
    This construction is sustained by the provisions of the sections of the Code of' Civil Procedure (§§ 3468, 3469), providing for the vesting of the title of the property of the judgment debtor in the receiver, which imply that a transfer of the legal title of the debtor, prior to the periods fixed in section 3469, which is valid as between the parties to it, although fraudulent as to creditors, prevents the vesting in the receiver of the legal title to the personal property so transferred.
    Appeal from an order of the Special Term, granting a new trial to the defendant upon a motion therefor made upon a case and exceptions.
    On the 31st day of J anuary, 1881, Elizabeth J. Chase was the owner of the personal property described in the complaint in this action» On that day, for the purpose of securing the defendant for moneys which she then owed him, and for indorsements upon which he had become liable for her, she executed and delivered to the defendant a chattel mortgage upon said property. Said mortgage was duly filed on the 1st day of February, 1881, and refiled on the 9th day of January, 1882. On the 9th day of February, 1882, defendant foreclosed his chattel mortgage and became the purchaser of the-property at the sale, and took possession thereof. On the 28th day of November, 1881, one Charles Sheldon, with others, recovered a judgment against Jen Dexter Chase and Elizabeth J. Chase, in the 'County Court of Steuben county for $296.24.
    Proceedings supplemental to and in aid of the execution issued ■on said judgment, were commenced by the service of the usual order, on Elizabeth J. Chase, on the 28th day of December, 1881. After the return of the execution, a supplemental order was made and served on both defendants in the judgment on the 4th day of February, 1882. The plaintiff was, by an order made in said proceeding, on the 26th day of April, 1882, appointed receiver of the property of both defendants.
    He, thereafter, duly qualified and entered upon the discharge of his duties; subsequently the plaintiff’s receivership was duly extended in proceedings on three other judgments against the same defendants. Thereafter plaintiff, as such receiver, brought this action of replevin against this defendant to recover the possession of the property described in said chattel mortgage and in the complaint, or the value thereof in case a delivery could not be had; the action was tried by a jury in the Steuben County Court, and the plaintiff had a verdict for $800. On the 23d day of February, 1884, this ■cause was certified to the Supreme Court by Hon. Harlo Hares, ■county judge of Steuben county, and thereafter a motion was made •Dy the defendant at Special Term, on a case and exceptions, for a new trial, which motion was granted and a new trial ordered upon the ground as stated in a memorandum by the justice holding said term : “ That an action for a claim and delivery of personal property cannot be maintained by a receiver appointed in supplementary proceedings in a case where the judgment debtor had transferred the property before the appointment of the receiver and the mortgagee had taken possession of the property by virtue of such mortgage.” From that order this appeal is taken.

      Beard db Grijjm, attorneys {Be Merville Page, of counsel) for the appellant.

      William E. Bonham, attorney (A. Hadden, of counsel), for the respondent.
   Smith, P. J.:

This action was brought by the plaintiff as receiver of the property of Elizabeth I. Chase and Jen. D. Chase, appointed in proceedings supplementary to execution, to recover of the defendant the-possession of certain personal property which the plaintiff alleged belonged to the judgment debtors in said proceedings. The defendant claimed said property under the foreclosure of a chattel-mortgage which was executed to him by the judgment debtors and duly filed, and he had purchased the property at a sale under said mortgage prior to the commencement of said supplementary proceedings. The plaintiff contended that the mortgage was void as-against creditors, on the ground that it was executed with a fraudulent intent, and also on the ground that it was accompanied by a. parol agreement that the mortgagors should retain the possession of the property, sell it and apply the proceeds, or so much thereof as-should be necessary, to the support of the family of one of the mortgagors.

A prominent question in the case is whether the plaintiff, as such, receiver, can maintain an action at law against the mortgagee and purchaser under the mortgage, to recover the possession of the property, assuming that the mortgage is void for the reasons above stated or either of them. The case is now before us upon a re-argument ordered by the court. On the first argument the members of the court were of the opinion that the action could not be maintained by the receiver, and upon that ground affirmed the order of the Special Term granting a new trial. We all agree that the action could not have been maintained prior to the passage of the act (Laws 1858, chap. 314) to declare and extend the powers of executors, etc., the only remedy of a receiver in like cases, prior to that act, being an action in equity to set aside or remove the fraudulent mortgage. (Bostwick v. Menck, 40 N. Y., 383.) We are of the opinion that the plaintiff is not aided by that statute.

1. We think the class of receivers intended by the act are those 'who are vested, as such, with an entire estate, or with all the property and effects of an insolvent, for the benefit of all the creditors, and that a receiver appointed in supplementary proceedings for the benefit of a single' creditor is not included. The sole object of supplementary proceedings is to procure payment of the debt of the creditor instituting them, out of the property of the judgment debtor; not to effect a distribution of the debtor’s estate among all his creditors. True, other creditors may institute like proceedings and have tbe receivership extended to their claims, but that circumstance does not alter the essential nature of the proceeding. The equitable remedy, above suggested, is not only ample, but is peculiarly appropriate, as thereby only so much of the debtor’s property will be applied to the payment of the creditor represented by the receiver as shall be necessary for that purpose. But an action at law to recover the possession of a particular chattel can only be maintained upon the theory that the receiver is vested with the title to all the personal property of the debtor. If he may not recover the whole, by what rule shall the selection of a particular article be governed? And if he may recover the whole, by what process shall a court of law select and apply such part of it as shall be needed to pay the debt, and how shall it dispose of the surplus? The first section, we think, in terms, applies to receivers of the entirety. It uses the words, “receiver” * * * “of an estate, or the property and effects of an insolvent estate, corporation,” etc. Those words necessarily imply a receivership of the whole estate, and not of a part. The section classes receivers with executors and administrators, whose title extends to the whole of the estates of the deceased person whom they represent, and that, too, for the purpose of distribution among all the creditors.

2. The title of a receiver in supplementary proceedings is limited by statute to the property of the judgment debtor. The provisions on the subject are found in sections 2168 and 2469, of the present Code of Procedure. The first of those sections provides that “the property of the judgment debtor” is vested in a receiver, who has duly qualified, from the time of filing the order appointing him, or extending his receivership, as the case may be, subject to certain exceptions not material to the present case. The next section provides that where the receiver’s title to personal property has become vested, as prescribed in the last section, it also extends back, by relation, for the benefit of the judgment creditor in whose behalf the special proceeding was instituted, to certain stages of the proceeding preceding the appointment of the receiver, as specified in the several subdivisions of that section. The section concludes with these words: “ But this section does not affect the title of a purchaser in good faith, without notice, and for a valuable consideration, or the payment of a debt in good faith and without notice.” Tbe purchaser thus referred to, evidently is one who purchases during the period over which the proceeding is made to extend back by relation, as provided in the section, for the title of a purchaser in good faith, etc., prior to such period, certainly could not be affected by the proceeding, and no statute would be necessary to protect his rights. This implies clearly that the title acquired within that period by a purchaser without consideration or acting mala fide, or with notice of the proceeding, does not stand in the way of the1 title of the receiver, and it seems to imply also that a transfer of the legal title of the debtor, prior to that period, which is valid as between the parties to it, although fraudulent as to creditors, prevents the vesting in the receiver of the legal title to the personal property so transferred. Such property we apprehend cannot be said to be “ the property of the j udgment debtor ” within the meaning of the section. In the present case the defendant acquired title long prior to the time to which the supplementary proceedings relate. In Southard v Benner (72 N. Y., 424) the plaintiff, an assignee in bankruptcy, was vested, by the express terms of the federal statute (U. S. R. S., § 5046), with all the property conveyed by the bankrupt in fraud of creditors, thus giving him, as Judge Allen remarked in that case, “ a title to all property so conveyed.” But if the views above expressed are correct, the title vested by statute in a receiver in supplementary proceedings does not extend to property transferred by the debtor, prior to the time at which the proceedings were commenced, or to which they relate back, and we think the position of such a receiver in respect to property in that situation is the same now as it was declared to be in Bostwick v. Menck (supra).

This construction gives full effect, we conceive, to the language of the act of 1858. It extends the powers of the several classes of trustees therein mentioned, by giving them the right to maintain appropriate actions at law for the purposes therein specified. Theretofore they were confined to their equitable remedies, with the exception of executors and administrators, who could sue at law under the Revised Statutes. (2 R. S., 449, § 17; Babcock v. Booth, 2 Hill, 181.) It is apparent from the similarity of language in the two acts that the later act was framed in view of tbe earlier one, and that the in tendon was to make the rights of the several «lasses of trustees therein named uniform with those of executors ■and administrators, in respect to the particulars specified in the •■statute. In some respects, the later act enlarges the powers conferred by the previous statute upon executors and administrators, 'the second section giving a right 'to sue for the specific property fraudulently conveyed, as well as the right ro recover the value thereof and damages, which was given to executors and administrators by the Revised Statutes.

The views above expressed are not in conflict with the cases cited by the learned counsel for the appellant. In none of those cases was a receiver in supplementary proceedings a party. Each of them was brought by a trustee, embraced in one of the classes •described in the act of 1858, as we have interpreted it. We are, therefore, still of the opinion that the plaintiff cannot maintain this action.

Eor another reason we think the order under review should be .affirmed. It appears by the case that the trial court, at the request of the plaintiff’s counsel, charged the jury that the burden of proof was on the defendant to establish the good faith of the mortgage; which was excepted to. Also, that the defendant’s counsel asked the court to charge that the burden of proof was on the plaintiff to establish the alleged fraud, which the court declined, and the defendant excepted. Immediately after the refusal above stated .the court said: “ I have instructed the jury sufficiently in reference to that. I give you the benefit of possession of the property to «tart with, in charging that the jury must find a better right to the property in the creditors than the defendant, before the plaintiff can recover.” In view of the evidence, we think the charge and refusal were erroneous, and the error was not cured by the reference made by the judge to what he had previously charged. The evidence showed that the mortgage was duly filed. There was evidence tending to show that it was given for a good and sufficient consideration, and also that the subsequent possession of Chase, one of the mortgagors, was by the authority of the defendant, as his agent for that purpose, though upon the latter points the testimony was conflicting, and the judge submitted it to the jury to find whether the defendant put Chase in possession in good faith or as a mere cover. Under those circumstances the onus of showing good faith was not upon the-defendant, unless the jury should find that there was no change of possession. But the rulings of the court put that burden upon the-defendant, irrespective of the question whether the possession of the property was changed. That was error prejudicial to the-defendant.

For these reasons we think the order appealed from should be. affirmed, with costs.

BaeKer and Bradley, JJ., concurred.

Order affirmed, with costs.