author: Parker, J.: Mayham, P. J.

text:
    The National Commercial Bank of Albany, Appellant, v. Charlotte C. Gray and Others, Respondents.

      Party wall — practical location of a boundary line — acquiescence—ancient writing —windows in a party wall.

    Tlie rule which forbids the disturbance of a practical location of a boundary line which has been acquiesced in for a long series of years applies to the practical location of such a line through the center of a building wall, constituting it a •party wall.
    An agreement to that effect executed by the remote grantors of the adjoining owners, is admissible in evidence as an ancient writing although not acknowledged or recorded, where such location has been acquiesced in and the wall has been used as a party wall accordingly for a period of about seventy-five years, notwithstanding the fact that the wall may stand entirely within the line called for by the deed of one of the adj oining landowners. (Mayham, P. J., dissenting.) In such a case, one adjoining landowner has a right to close window spaces inserted in the wall on its elevation above his building by the owner within whose deed line the wall stands.
    When a wall is made a party wall by the establishment of a boundary line through its center,- each owner owns in severalty so much of the wall as stands upon his lot, subject to the easement of the other owner for its support and the equal use thereof as an exterior wall of his building ; and no other use of the adjoining owner’s portion of the party wall is permissible.
    .Windows have no place in a party wall.
    Appeal by the plaintiff, the National Commercial Bank of Albany, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of Albany county on the 16th day of April, 1891, upon a decision of the court rendered after a trial by the court at the Albany Special Term.
    The action was brought to restrain the defendants from building with brick or otherwise in spaces left open for windows in the westerly wall of tlie buildiiig standing on the plaintiffs’ premises, on the south side of State street, in the city of Albany, and from inserting or making any fastenings or connections with the wall, and from maintaining or continuing any fastenings or connections already made.

      Abraham, Icmsmg, for the appellant.

      Jacob II. Glute, for the respondents.
   Parker, J.:

The controversy between plaintiff and defendants, who are adjoining lotowners, relates primarily to the location of a boundary line.

Defendants say that the line extends through the center of the wall, which has been for many years used in precisely the same manner as are party walls, the timbers of the building on either side resting in and being supported by it.

Plaintiff, admitting that defendant’s user of the wall has been so long continued as to have created an easement which secures to him the right to such use as he now makes of. the wall, insists that it is not a party wall, but wholly on the lands of the plaintiff, and for that reason it cannot be interfered with in any action it may see fit to take with reference to the wall, so long as defendants are not interfered with in the enjoyment of their easement.

It seems that prior to about 1850, plaintiff’s building was three stories high and seventy-two feet deep. Defendant’s building was three stories high also, but only about fifty feet deep. Sometime in 1850, plaintiff raised its building, running ,.up the wall, which has been used as an easterly and westerly wall for plaintiff’s and defendant’s buildings respectively, to the requisite height, and inserted therein the beams for the added stories.

About the year 1871 the defendant extended his building so as to make its total depth seventy-t-wo feet, and raised it so much that he was obliged to build up the wall between him and plaintiff to a height of about fifteen feet above where plaintiff had built it in 1850.

In 1887 plaintiff again raised its building, using the fifteen feet of wall which defendant had added in 1871, in part to support the timbers of tlie added stories, and running up sucli wall about twenty-feet more, making tlie top of tlie wall nearly twenty feet above tlie roof of defendant’s building. In tlie erection of tlie wall, plaintiff left five spaces for windows. Defendant then closed sucli window spaces on bis side, and for a depth of six inches, by brickwork.

Thereafter this action was begun to restrain the defendant from interfering with the window spaces, which resulted in a judgment for the defendant.

The determination of the learned' trial judge seems well founded.

It is true that plaintiff’s deed, assuming its westerly boundary line to be correctly located, calls for a frontage that included the entire wall, instead of one-half of it. And as there is no record of conveyance from plaintiff or his predecessors in title of the six inches in controversy, plaintiff insists that its right to it cannot be questioned.

Defendant’s contention is that, in 1815, plaintiff’s and defendant’s predecessors in title located the boundary line in the center of the brickwork of said wall,” and that from that time until the commencement of this action, a period of about seventy-five years, such practical location of the line was acquiesced in by the parties to the original location and their grantees.

If it is legally established in the record before us that the facts are as defendant contends in such respect, then the case is clearly brought within the settled rule which forbids the disturbance of a practical location which has been acquiesced in for a long series of years — a rule adopted as one of repose, and which rests upon the same reason as the statute prohibiting the disturbance of an adverse possession which lias continued for twenty years. (Baldwin v. Brown, 16 N. Y. 359 ; Reed v. Farr, 35 id. 113; Avery v. Empire Woolen Co., 82 id. 582.)

We are thus brought to a consideration of the evidence introduced for the purpose of establishing a practical location.

The defendant put in evidence a writing under seal, which was neither acknowledged or recorded, of which the following is a‘ copy:

“ Whereas, the boundary line which divides the lot of ground on the south side of State street, owned by Joseph Alexander and his •wife, Ann Alexander, from the lot of ground owned by the heirs .of Henry Hogan, deceased, is not precisely ascertained and known, and, whereas, the said Joseph Alexander and Ann Alexander are about erecting a building on their said lot of ground, which renders it desirable that the said boundary line should be settled. Now, therefore, to the end that the said boundary line may be amicably ascertained, settled and established, the said Joseph Alexander and Anna Alexander, for themselves, their heirs, executors, administrators and assigns, of the first part, and Nelly Hogan and 'William Brown, Dorothy Brown and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Nelly Hogan, Henry Hogan and Martina Brown were and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement, that is to say:

“ First. The said party of the first part shall have full liberty to place the west wall of the building, which they are now erecting, as near to the east wall of the building, now occupied by the party of the second part, as they shall or may choose to do, and to build and finish the same in any manner they please without molestation or hindrance from the said party of the second part, or any person or persons by their direction or claiming under them.
“ Second. The center of the brick work of the said wall, when so built by the party of the first part at their own expense, and a corresponding line drawn to the south bounds of said lots, shall forever hereafter be allowed and acknowledged by both the parties to this agreement, and all persons claiming under, to be the true division line between the aforesaid lots of ground.
Third. The said party of the second part, or their heirs and assigns, shall have full liberty whenever they may choose to erect a building on their said lot of ground, to join the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto, and finish thereon in any manner they may choose to do. Also to build upon and raise higher the said division wall or extend the same further south so as to suit their own convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their directions or claiming under them. Provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner unnecessarily mar or injure the same.
“Fourth. Each of the parties to, this agreement shall keep in repair their own half of the said division wall, and neither party, or any person or persons by their direction or claiming under them, shall have liberty to pull down or demolish any part of the said division wall without consent of the other first had and obtained.
“ In witness thereof, the parties to this agreement have severally set their hands and seals this- day of May, one thousand eight hundred and fifteen, to these presents.
“JOSEPH ALEXANDER.
“ANN ALEXANDER.
“NELLY HOGAN.
“¥M. BROWN.
“DOROTHY BROWN.
“ELEANOR BROWN.
The words “ or their heirs and assigns ” in the first line of the third article, were interlined before execution.
“ Signed, sealed and delivered 1 in presence of )
“ James La Grange,
“ Peter Lansing, Jr.”

The plaintiff, in due season, objected to the introduction of the agreement, and the exception taken to the ruling admitting it will be first considered.

When offered, the testimony showed that the signature of plaintiff’s grantor to the agreement of 1815 was in his handwriting; that each of the adjoining owners entered into possession of the half of the Avail next adjoining him by inserting therein the necessary timbers for his building; the agreement offered was found by defendant among his muniments of title in 1811 or 1875; and plaintiff, about the same time, found a duplicate thereof among the deeds and papers Avhich it had received at the time of taking title.

Under the circumstances proven, it was clearly not error to receive in evidence as an ancient writing, and without proof of execution, this agreement which purports to have been executed more than seventy-five years before that time.

The agreement was ample to support the finding that the parties undertook to practically locate the boundary line between them in the center of the wall shortly thereafter constructed.

And this location was not questioned, so far as the record discloses, from 1815 down to 1887; on the contrary, there are positive acts of acquiescence.

Plaintiff’s remote grantor, who executed the agreement, took possession of only six inches of the wall, which he made use of to support the beams of the building erected by him.

Defendant’s grantor thereafter erected a building, at which time he took possession of one-half of the wall next to him in the same manner as the other party to the agreement had done.

In 1850, plaintiff raised its building, and for that purpose ran the wall up several feet, but only took possession of one-half of the wall.

About twenty-four years later, defendant remodeled his building, increasing the height of each of the several stories and adding an extra story, in the doing of which, he extended the division wall some fifteen feet higher than it was before. And when this was done, if not before, plaintiff had knowledge of the existence of the agreement of 1815. The defendant at this time cut off six inches from the face of the partition wall, and rebuilt it, his purpose being to have the portion of it which he claimed, conform in appearance to the rest of the building front.

When plaintiff increased the height of its building in 1887, it claimed the right to use the half of the wall on defendant’s side as well as its own, but then about seventy-two years had elapsed since the attempt of the owners to locate the division line, and the lapse of time, considered in connection with the facts referred to, fully establish a legal acquiescence in the location originally made.

Neither the parties to the original location, nor their successors in title, can now be heard to deny that such line constitutes the true boundary.

The agreement establishes that the wall is a party wall, and if the views so far expressed are correct, each owns in severalty so much of the wall as stands upon his lot, subject to the easement of the other owner for its support, and the equal use thereof as an exterior wall of his building. (Partridge v. Gilbert, 15 N. Y. 601.)

No other use of the adjoining owner’s portion of the party wall is permissible. Windows have no place in a party wall. (Nash v. Kemp, 12 Hun, 592; Danenhauer v. Devine, 51 Texas, 489; St. John v. Sweeney, 59 How. Pr. 175 ; Sweeney v. St. John, 28 Hun, 634.)

Defendant was, therefore, doing as he lawfully might in filling up the openings on his half of the party wall.

The judgment should be affirmed.

Putnam, J., concurred.

Mayham, P. J.

(dissenting):

This is an appeal from a judgment entered upon the decision of the trial judge in favor of the defendant.

The action was to restrain the defendant from closing up or obstructing windows left by the plaintiff in the westerly wall of the plaintiff’s bank building, above the top of the defendant’s adjoining building.

The complaint alleged that plaintiff purchased the premises under a mortgage foreclosure and took title under a master’s deed, dated the 10th day of April, 1833, and entered into the occupation at that date, and subsequently erected a building thereon of which the lower portion of this wall was a part, and alleged in substance that the whole of this wall was upon the premises so purchased.

The answer admits the plaintiff’s title under the master’s deed, but denies that the west wall of the building erected by the plaintiff was wholly on the land embraced in plaintiff’s deed, or conveyed by it, and alleges that “the west wall of plaintiff’s building is a party wall 12 inches thick; six .inches of the westerly part of said wall belongs to and js the property of this defendant, and six inches' of the east side of said wall belongs to and is the property of plaintiff.”

The plaintiff’s deed bounded the land conveyed by the property of one Douw on the east, which seems by the evidence to be a well-defined and fixed monument, called for fifty-three feet fronting on State street, and bounded the land so conveyed on the west by land of Henry Hogan, to whose title defendant has succeeded by a deed dated December 24, 1833, and recorded December 21,1834.

The proof showed that the wall in dispute was fifty-one feet seven and one-half inches from Douw’s west line, including both exterior walls of tlie plaintiff’s building, so that, standing upon plaintiff’s deed alone, the wall in dispute was wholly on the plaintiff’s premises.

But the deed from Tremain to Brown, under which the defendant claims, describes the defendant’s land as bounded easterly by a line running through the party wall on the west of the Joseph Alexander lot, which is the plaintiff’s lot and the wall in dispute in this action.

It is quite clear, that standing upon the' description and recitals in the deed given by the referee in partition under which the defendant claims, the rights of the plaintiffs could not be affected, as neither the plaintiff nor the mortgagor was a party to that proceeding, and the title under the foreclosure through which the plaintiff’s claim was perfected, before the deed in partition was executed and the mortgage under the foreclosure of which plaintiff derives title by its terms embraces the land on which the wall in dispute stands, and thus conveys to the mortgagee and the purchaser upon the foreclosure whatever right and title the mortgagor had in the premises at the time of the execution of that instrument; the foreclosure operates to extinguish the mortgagor’s equity of redemption and eliminate the defeasance, and the purchaser takes the title of the mortgagor as of the time of the execution of the mortgage, and when the mortgage lien was created. (Batterman v. Albright, 122 N. Y. 489; Rector, etc., v. Mack, 93 id. 488.)

Although the deed to Brown, through whom defendant claims, refers to this wall as a party wall, which as we have seen was subsequent to the conveyance upon the foreclosure, yet no reference seems to have been made in the deed to the defendant to this wall as a party wall.

But even if it had been thus described in all the conveyances after the deed in partition, still'it is difficult to see how such description could operate as constructive notice to the plaintiff as the purchaser of adjoining lands, and I think under the facts proved, that the plaintiff must be regarded as taking its title under the foreclosure unaffected by actual or constructive knowledge of any agreement which the mortgagor had previously made as to the westerly line of the mortgaged property, and is the owner of, and may hold and use the land according to the actual description in the mortgage, unless the agreement of 1815 can be upheld as a practical location of tliis line, running with the land and binding upon all subsequent owners.

The defendant offered in evidence on the trial an instrument in writing, dated in May, 1815, which was not acknowledged or recorded, purporting to have been made by Alexander, the mortgagor, under whose mortgage plaintiff claims title, and the heirs of Henry Hogan, from whom, through certain mesne conveyances, the defendant claims title, of which the following is a copy :

“ Whereas, the boundary line which divides the lot of ground on the south side of State street owned by Joseph Alexander and his wife, Ann Alexander, from the lot, owned by the heirs of Henry Hogan, .deceased, is not precisely ascertained and known, and whereas, the said Joseph Alexander and Ann Alexander are about erecting a building on their said lot of ground, which renders it desirable that the said boundary line should be settled.

“ Now, therefore, to the end that the said boundary line may be amicably ascertained, settled and established, the said Joseph Alexander and Anna Alexandei', for themselves, their heirs, executors, administrators and assigns, of the first part, and Nellie Hogan, and William Brown, Dorothy Brown and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Nellie Hogan, Henry Hogan and Martina Brown, were and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement, that is to say:

First. The said party of the first part shall have full liberty to place the west wall of the building which they are now erecting as near to the east wall of the building now occupied by the party of the second part, as they shall, or may choose to do, and to build and finish the same in any manner they please, without molestation or hindrance from the said party of the second part, or any person or persons by their directions, or claiming under them.
Second. The center of the brick work of the said wall, when so built by the party of the first part, at their own expense, and a corresponding line drawn to the south bounds of said lot, shall forever hereafter be allowed and acknowledged by both parties to this agreement, and all persons claiming under -, to be the trae division line between the aforesaid lots of ground.
“ Third. The said party of the second' part, or their heirs and assigns, shall have full liberty, whenever they may choose, to erect a building on their said lot of ground, to join the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto and finish thereon in any manner they may choose to do, also to build upon and raise higher the said division wall, or extend the same farther south, so as to suit their own convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their directions, or claiming under them.
“ Provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner unnecessarily mar or injure the same.
Fourth. Each of the parties to this agreement shall keep in repair their own half of the said division wall, and neither party, or any person or persons, by their direction or claiming under them, shall have liberty to pull down or demolish any part of said division wall, without the consent of the other first had and obtained.”

This paper purported to be signed by the parties named in it, and witnessed by two subscribing witnesses.

The plaintiff’s counsel objected to the receipt of this paper in evidence, on the ground that its execution was not sufficiently proved; that it was not recorded, and there was no proof of any notice to the plaintiffs at the time it took its deed; also, that the answer admitted that this wall in question was built by the plaintiff, who took title in 1838, and the agreement related to a party wall in 1815, and that the evidence was irrelevant and immaterial.

These objections were overruled by the court, and the plaintiff duly excepted.

The evidence shows that this agreement was in the possession of the defendant, with his other evidences of title, from the time of his purchase of his premises in 1874, and it is insisted that under the circumstances it was properly received in evidence, without proof of its execution, as an ancient writing.

This paper purports to have been executed in 1815, and was offered and received in evidence in 1890, seventy-five years after it bears date. This long interval made it clearly an ancient writing within the authorities, especially as the wall or line to which defendant claims it relates has remained in part m the possession of the defendant, or persons through whom he derives his title, since 1840, as shown by the undisputed evidence in the case.

The rule upon this subject seems well settled, both in this country and in England, that when possession accompanies the paper it proves itself, if an ancient writing.

In Hewlett v. D. & S. Cock (7 Wend. 371), Nelson, J., in delivering the opinion of the court, after an extensive review of the authorities at that time, says: “ Possession accompanying the deed is always sufficient without other proof, but it is not indispensable.”

In that case the lease which ivas offered in evidence as an ancient document, was found among the muniments of the title of the farm of which the premises in question were a part fifty years before the trial, and a new trial was ordered because the trial judge refused it in evidence without proof of execution.

We are, therefore, of the opinion that it was not error in this case to receive this writing, without proof of execution, especially as the execution by one of the mortgagors was proved by competent evidence of the genuineness of his signature.

But the more serious question as to its admissibility against this plaintiff, as it seems to us, is as to its competency as against this plaintiff, who, so far as the case shows, purchased at the mortgage sale, without any notice, either actual or constructive, of the existence of this contract.

The plaintiff, in its complaint, claims title to this entire wall, derived under a foreclosure of a mortgage, in which there was no notice of the existence of the claim now made by the defendant, that this was a party wall, and at the time of the execution of said mortgage, and at the time of the purchase by the plaintiff, no actual or constructive notice was given of the existence of any adverse claim.

If this claim can be proved and established by this instrument, the plaintiff will lose not only the six inches of land in dispute, but the title to and control of lands clearly conveyed to it on the mortgage sale.

Clearly, there was no dispute or controversy over this line apparent upon the face of the mortgage, and the plaintiff was justified in assuming, in the absence of any notice or record evidence to the contrary, that the moi'tgage conveyed, free of charge or incum-brance, the premises covered by its description.

The defendant seeks to break the force of this objection by proving that, in 1874, the president and cashier of the plaintiff had a copy of this contract which the president exhibited to the defendant.

I do not think that that proves or tends to prove notice to or knowledge in the plaintiff of the existence of this writing at the time of the purchase of these premises by it, or at the time of the execution of the mortgage to which, as we have seen, the plaintiff’s title relates.

While the law presumes a thing to continue as it is once proven to be, until a change is shown, I am not aware of the existence of any rule extending that presumption backward so as to make the proof that some of the officers of this bank had a copy of this instrument in 1874, evidence of notice to or knowledge in the plaintiff of its existence in 1833.

The only evidence upon which it can be claimed that there was a practical location of this line, and the erection of this wall upon, or in accordance with, such location, is this written instrument, and that evidence is found only in the recitals contained in it.

It is true that this wall, as a division between the premises of the plaintiff and that of the defendant, is presumptive evidence of the location of this line, and had the proof shown knowledge in the plaintiff of the agreement contained in this writing, its acquiescence in the location of the line in the center of the wall, as specified in the writing, would have amounted to a practical location by which the plaintiff would be bound.

But before there can be an acquiescence such as would bind a party by a location as against the calls in his deed, he must be informed of the existence of an agreement by which the line is claimed to be located. (Baldwin v. Brown, 16 N. Y. 359 ; Reed v. Farr, 35 id. 116.)

In Baldwin v. Brown the court say: “ Unless the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance. * * * In all cases in which practical locations have been confirmed upon evidence of this kind, the acquiescence has continued for a long period, rarely less than twenty years,” and the court then gives five instances in which it continued from twenty-six to forty-eight years.

. It is true that these cases relate to parol agreements and not to writings. But when the party sought to be concluded, as in this case, is ignorant of the existence of any writing, and holds under paper title, not in accordance with the alleged practical location, it is difficult to see how the terms of the deed can be overthrown short of an adverse possession, such as would bar an action at law to recover the possession.

We are, therefore, of the opinion that this writing furnished no legal evidence to establish a practical location as against the plaintiff, which took title under the deed in foreclosure without notice of. its existence, and who within the calls of the deed constructed this wall on lands covered by the terms of that instrument, and that its reception in evidence was, therefore, error.

But it is insisted by the defendant that this agreement conveyed no land, and, therefore, was not required to be recorded, and that subsequent purchasers or incumbrancers were not entitled to notice of its existence. But it would seem that if it conveyed no land, or any interest in land, it would not be a contract or agreement running with land so as to bind such subsequent- incumbrancers or purchasers.

The rule seems well settled that such contracts or covenants are personal and do not run with the land. In Cole v. Hughes (54 N. Y. 444), the court seem clearly to assert that doctrine, and quote with approbation the language of Wilde, J., in Hurd v. Curtiss (19 Pick. 459): “ That no covenant will run with the land so as to bind the assignee to perform it, unless there were a privity of estate between the covenantor and covenantee,” and that this rule was without exception; and the same case quotes the following, from Washburn on Real Estate, “ that when one who makes a covenant with another in respect to land, neither parts with nor receives any title or interest in the land, at the same time with and as part of making the covenant, it is at best a mere personal one, which does not bind his assignees, and that such covenants, and such only, run with land as concern the land itself, in whosesoever hands it may be.”

If, therefore, within this rule no title or interest in land passed from or to Alexander, the mortgagor, by this writing, then none of its obligations would attach to the lapd in the hands of the purchaser under his mortgage.

If we are right in our conclusion that this writing was not competent evidence as against the plaintiff, and that a practical location of the line between the plaintiff and defendant was not established by it, then it follows that as the front of plaintiff’s land on State street, called for by its deed, is fifty-three feet ten inches, and the width of plaintiff’s bank building from Douw’s line to the westerly side of plaintiff’s west wall was fifty-one feet seven and a half inches, the whole of said westerly wall built by plaintiff is on plaintiff’s land. But it is further urged by the defendant that this wall in dispute is and always has been used as a party wall between the plaintiff and defendant, and that, therefore, all the rights and incidents of a party wall attach to the same.

The evidence in this case shows that the wall in dispute has been the dividing wall between the premises of the plaintiff and defendant at least since 1840,. and that the buildings on either side have connected with it by inserting beams and timbers in it for support.-

This furnishes prima facie evidence that the wall in question is and has been used as a party wall, and belongs equally to the plaintiff and defendant. In Sherred v. Cisco (4 Sandf. 490), the court lays down- the rule upon this subject as follows: “ The principle of the decisions is, that while the common user is presumptive evidence of a tenancy in common in the land and wall, that presumption is rebutted by proof of the precise extent of the land originally belonging to each owner, and each then is deemed the exclusive owner of so much of the wall as stands on his own land.”

In Schile v. Brokhahus (80 N. Y. 614), Church, C. J., says:

The old wall from long user, in the absence of evidence, must be deemed a party wall presumptively, either from an agreement to that effect or from its being built upon the line of the two lots for that purpose by the respective owners.”

But a fee will not be implied from user when an easement only will secure the privilege enjoyed (Roe v. Strong, 107 N. Y. 350), and when, as in this case, the plaintiff establishes a clear evidence of title in itself to the locus in guo, the occupancy by the defendant, unsupported by title, paramount to that of the plaintiff, must, it seems to me, be but a user, and as such valid to the extent that it has been enjoyed for so long a period of time; but without the aid of the writing which we have excluded, limited to that extent, and ineffectual to prevent tbe plaintiff from running the wall up on the same foundation, with or without windows, and that any interference by the defendant by filling up such windows, or building another wall resting upon the plaintiff’s against such windows, is a violation of the plaintiff’s property rights, and a permanent assumption of the use of this wall for which an injunction might issue.

It will be seen that the success of the contention of the respective parties to this action largely depends upon the question whether the instrument in writing put in evidence by the defendant, under the objection of the plaintiff, and which we hold incompetent, and the admission of which, by the trial judge, we have reached a conclusion was error, disposes of this question in favor of the plaintiff, for which this judgment should be reversed.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Charles N. Williams, Appellant, v. Nathaniel C. Boynton, as County Clerk of the County of Essex, Respondent.

      Resolution requiring a majority vote of members elected to a hom'd of supervisors — ■ a member seated but not elected is not, as a defacto officer, to be counted — a validating statute, when ineffective.

    The Essex comity board of supervisors, authorized by law, by a majority vote of all the members elected thereto, to fix or change the site of any county building, by a vote of ten out of eighteen supervisors, passed a resolution changing the site of the county buildings of Essex county, eight supervisors voting against the resolution. The chairman of the board decided that the majority of the supervisors elected did not vote for the resolution, and that it was lost for the reason that two of the supervisors, Sullivan and Moynehan, who voted in favor of such resolution, had not been elected supervisors.
    In an action brought to prevent the submission of the question of removal of the buildings, etc., to the electors of Essex county, it appeared that Sullivan received the certificate of election from the town canvassing board, but that a mandamus had issued requiring such board of town canvassers to reassemble and declare the result of the said town meeting, and to issue a certificate of election to the candidate having the greatest number of votes, pursuant to which the town board of canvassers met, and upon such recanvass, Sullivan’s opponent was declared elected to the office of supervisor and a certificate was issued to him, and he took, filed and recorded the oath of office and gave and filed the requisite security as such supervisor, and thereafter an order was made by a justice of the Supreme Court directing Sullivan to deliver the books and papers, pertaining to the office of supervisor of such town, to his opponent.

      The board of supervisors, however, appointed a committee on contested seats, to which was referred the question of the contested seat occupied by Sullivan, and such committee made a report recommending the seating of Sullivan. Its report was adopted and Sullivan sat with the board of supervisors and voted for the resolution.

      Held, that the act of Sullivan in voting for the resolution was not within the line of action of a de facto officer, which, out of motives of public policy, the law would uphold;
    That neither as an elected or defacto supervisor was he entitled to vote upon such resolution, and that the resolution consequently did not receive the votes of a majority of the elected members of the board of supervisors.
    An act of the Legislature, (Chapter 148, Laws of 1893), legalizing, ratifying and affirming the action of a board of supervisors in relation to changing the site of a county building, where such action of the supervisors was not in conformity with the provisions of the general law (required by section 18 of article 3 of the State Constitution), providing for the change of a county seat, is void and of no force and effect as a validating statute.
    Appeal by the plaintiff, Charles N. Williams, from a judgment of the Supreme Court dismissing the plaintiff’s complaint, entered in the office of the clerk of the county of Essex on the 9th day of August, 1893, after a trial before the court at the Essex Special Term.

      Riehcvrd L. Hand, for the appellant.

      Chester B. MeLcmghUn, for the respondent.
   Herrick, J.:

This action is brought by the plaintiff as a taxpayer and resident of the town of Elizabethtown in the county of Essex in this State, asking the court to adjudge that no legal or valid resolution for the removal of the site of any building or change of location of any county offices in the said county of Essex has been adopted or passed by the board of supervisors of said county, and that the action had in said board in the year 1892 in that respect was and is without jurisdiction, illegal and void, and also asking that the defendant be perpetually enjoined and restrained from providing any official ballots, sample ballots or instruction cards, or distributing the same, and from incurring any expense, or doing any other act or thing, for the purpose of submitting the question of the removal of buildings or changing the location of offices, to the electors of the said county of Essex.

The plaintiff’s complaint was dismissed at the Circuit, and from the judgment entered thereon the plaintiff appeals to this court. The facts, so far as they are necessary to be stated' for the purpose of this appeal, are as follows: Chapter 686 of the Laws of 1892, known as the County Law, provides, among other things, for the location and change of location of county buildings. Section 31 of said act provides that: The board of supervisors may, except in the county of Kings, by a majority vote of all the members elected thereto, fix or change the site of any county building and the location of any county office; but the site or location of no county building or office shall be changed when the change shall exceed one mile, and shall be beyond the boundaries of the incorporated village or city where already situated, except upon a petition of at least twenty-five freeholders of the county, describing the buildings or office, the site or location of which is proposed to be changed, and the place at or near which it is proposed to locate such new buildings or office.”

The law further provides for the publishing of such petition and notice of its presentation to the board of supervisors.

Section 32 provides that: On the presentation of such petition and notice, with due proof of their publication, if a majority of all the members elected to such board vote in favor of a resolution for the removal of the site of the buildings described in such petition, to the site also therein described, or the change of the location of its county offices or any of them, said board shall thereupon direct that such resolution, together with the notice that the question of such removal will be submitted to the electors of the county at the ensuing general election, be published in at least two newspapers published in the county, to be designated by the board, once in each week for six consecutive weeks, immediately preceding such general election. Such resolution and notice shall be published accordingly.”

A petition and notice was presented to the board of supervisors of Essex county.

Some questions have been raised in regard to such petition and notice and the proof of publication thereof, but the view that I have taken of this case renders it unnecessary to discuss them.

The board of supervisors of Essex county consists _ of eighteen members; a majority of tlie members elected would, consequently be ten. On tlie seventh day of December a resolution, pursuant to the petition presented, providing for a change of the county buildings from Elizabethtown, where they are at present located, to the village of Port Henry, more than one mile from and beyond the boundaries of the village where they are now located, came up to be acted upon by said board of supervisors; of those present and claiming to act as supervisors, ten voted in favor of the passage of such resolution, and eight against the same. The chairman of tlie board of supervisors decided that a majority of all tlie supervisors elected to the board did not vote for the resolution, and that it was lost; and stated as his ground for such decision, that two of the persons, one named Sullivan, and one named Moynehan, had not been elected supervisors ; the decision of the chair was appealed from, and by the votes of the same persons who voted for the passage of the resolution, the decision of tlie chair was overruled, and subsequently and by the same persons a resolution was passed directing the resolution and notice that the question of such removal would be submitted to the electors at the ensuing general election, to be published in three newspapers named in such resolution.

It appears by the proceedings in the case that at the town election held in the town of Minerva, Essex county, in March, 1892, Henry Bradley and "William IT. Sullivan were opposing candidates for the office of supervisor; paster ballots containing the name of Mr. Bradley, and affixed to the official ballot, were voted at such election.

Tlie town board canvassing the ballots rejected and refused to count the paster ballots containing the name of Bradley, and gave the certificate of election to Sullivan. Including the paster ballots Bradley had the majority of the votes cast at such election. A mandamus was then issued requiring such board of town canvassers to reassemble and declare the result of the said town meeting, and to issue a certificate of election to the candidate having the greatest number of ballots cast for him, including such paster ballots. The order directing the issuing of such mandamus was appealed from to the General Term of this court, affirmed by the General Term, then taken to the Court of Appeals, and on the seventeenth day of June the order of tlie General Term was affirmed by the Court of Appeals.

It appears that thereafter the town board of canvassers met, recanvassed as directed by the court, and upon such recanvass Bradley was duly declared elected to the office of supervisor, and a certificate of his election was duly issued to him, signed by the officers who acted as such canvassers; that thereafter Bradley duly took and filed the requisite oath of office, and gave and filed the requisite securities as such supervisor; that thereafter, and on the 4th day of August, 1892, an order was granted by a justice of this court directing the said William H. -Sullivan to deliver the books and papers pertaining to the office of supervisor of said town, in his possession, to the said Bradley, which order was appealed from to the General Term, and was affirmed by the General Term on the 8th day of December, 1892, which order of affirmance was entered on December 13, 1892. The Essex county board of supervisors met November 14, 1892, and appointed a committee on contested seats, to which was referred the question of the contested seat from the town of Minerva. This committee, claiming to act under section Y, subdivision 1, chapter .482 of the Laws of 1815, which authorized boards of supervisors, where there is no determination by the court upon the subject, to determine all eases of contested membership in their boards, proceeded to determine who should represent the town of Minerva in the board of supervisors. The law under which they claimed to act, chapter 482 of the Laws of 1875, had theretofore been repealed by chapter 686 of the Laws of 1892. (See schedule ■of laws repealed, page 1798, Session Laws of 1892.)

Not only did they proceed without authority of law to make the investigation and determination, but their own report shows that they knowingly and willfully violated the law; it shows that they knowingly recommended the seating of the person who had received ■a minority of the votes- cast, and that they did it in, what they believed to be, opposition to the,decisions of the courts of the State. Their report, after reciting the various proceedings taken before the courts, and the decisions of the courts thereon, recommended that William II. Sullivan be allowed to sit as a supervisor representing the town of Minerva for the year 1892. After making such recommendation the committee attempted to justify their action in the following language: “ Your committee believe that they are justified, warranted and upheld in this conclusion by the case of Osborne v. Deane, in the 15th Dutchess, Columbia and Putnam senatorial district of this State, where the board of county canvassers refused to count the vote cast for Deane until compelled to do so by order of the highest appellate court of the State, which order was obeyed in that case, as it was in the case of the town board of Minerva. Yet the returns made by the irregular board of county canvassers were recognized by the State Board of Canvassers, and Osborne was allowed to sit as senator from the 15th district on a minority vote, Deane having received a majority of'the votes cast in said district.”

Extended comment upon this proceeding is unnecessary. The report of the committee was adopted by the board of supervisors, and Sullivan sat with the board of. supervisors, and, as we have seen, voted for the passage of the resolution to change the location of the county buildings. The legality of his vote is sought to be upheld upon the ground that he was a defacto supervisor. It seems to me that the act of Sullivan in voting for this resolution is hardly witlpn ' the line of action of a defacto officer, that out of motives of public policy the law will uphold. The question of who are defacto officers, and under what circumstances the acts of persons unlawfully holding office will, out of motives of public policy, be held valid, has been the subject of much controversy, and has been frequently passed upon by the courts. I thinlc the leading case upon that subject in this country is perhaps that of The State v. Carroll (38 Conn. 449), where the following broad and comprehensive definition is laid down: “ An officer defacto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised.

First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were.calculated to induce people without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.

Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.

Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.

Fourth. Under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such.”

Sullivan cannot be said to be acting under either the second, third or fourth clauses of this definition, neither do I "think his act can be said to be one of those mentioned in the first, for neither by reputation or acquiescence was he acting or- holding office under such circumstances “ as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be,” for at the time of his voting his right to vote was publicly challenged upon the ground that he was not a supervisor, so that no one need to be induced without inquiry to submit to his action in that respect; the only people who are called upon at this time to submit to his action are the members of the board of supervisors and the county clerk, and as to them it seems to me that he is not holding office “ under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be.” The acts of de facto officers are upheld as matter of public policy to prevent a failure of justice, to permit the orderly transaction of public business, and to protect the interests of the public and individuals where those interests are involved by the acts of persons exercising the duties of public officers without being legal officers. In this ease individual interests are not involved; no rights have been vested; nothing has been done upon the faith of the act in question by any individual; no one has yet acted upon the faith of it ] neither do I see that any public interests are affected; nothing has as yet been done that, as a matter of precedent or rule for future action, requires that as a matter of public policy the acts of Sullivan should be sustained as those of a de facto officer; to do so, would be to hold that persons without semblance of right, after 'decisions of the courts of last resort adversely to their claims, may by physical force retain possession of the offices they have thrust themselves into, and be recognized as the lawful holders thereof. Such a doctrine, it seems to me, is contrary to sound public policy and will cause more trouble and confusion than to hold the acts of persons performing the duties of public officers under such circumstances invalid as to all the world. Sullivan’s only claim of title to the office of supervisor was under the certificate of election given to him by the board of town canvassers, and the evidence in the case shows that he was not elected a member of the board of supervisors, and the certificate of election awarded to him was set aside by the decision in the case of People ex rel. Bradley v. Shaw (133 N. Y. 493). (See, also, The People ex rel. Bradley v. Supervisors, 69 Hun, 406.) That is a matter of public record of which all persons are presumed to have knowledge.

The case also shows that upon a recanvass, held pursuant to those ■decisions, Bradley had a majority of the votes, and that a certificate of election was awarded to him. ■

Sullivan’s claim to office is not acquiesced in; it is a matter of record in the courts that he is not entitled to it; he holds it against the protest of the lawfully elected person, against the successful appeal of that person to the courts of the State, holds it by force and by the arbitrary action of himself and the members of the board of supervisors; the validity of his act that we are called to pass upon was not at any time acquiesced in, but was challenged when it was being done, and before it can become operative, the aid of the court is sought to prevent its becoming operative, and that aid is sought before either the public or individuals have taken any action upon the faith of his act. The rule as to the recognition of de faeto officers and their acts has limitations, and, among others, those limitations are as to such acts as are arbitrary and voluntary, and do not affect public utility. (Board of Education v. Fonda, 77 N. Y. 350.) Here we certainly have an arbitrary, voluntary case of usurpation, and the request is that we interfere before the public interests are affected by the results, and I cannot see how our refusal to recognize Sullivan as a defacto supervisor, and his act as valid, will adversely affect public utility.”

It must, therefore, I think, be held that Sullivan was not a defacto supervisor, whose act in voting for the resolution should be sustained from any reason of public policy.

The County Law, as we have seen, requires that a resolution to change the location of county buildings shall be passed by the majority of members elected; that neither as an elected or a defacto supervisor was he entitled to vote upon such resolution; consequently it did not receive the votes of the majority of the elected members of the board of supervisors, and it follows'therefrom that the question as to the change of county buildings could not legally be submitted to the electors of the county by authority of such action of the board of supervisors.

If I am correct in my conclusions as to the right of Sullivan to sit and vote as one of the board of supervisors, it is unnecessary to pass upon the qualifications of Moynehan as a member of such board. It is contended, however, that the proceedings of the board of supervisors have been legalized by chapter 148 of the Laws of 1893, reading as follows: All proceedings, votes and resolutions taken and adopted by the board of supervisors of the county of Essex at its annual meeting, held in November and December, eighteen hundred and ninety-two, in relation to changing the site of the county buildings of such county, are hereby legalized, ratified and confirmed, so as to be of the same force and effect as if all the persons sitting as members of such board of supervisors, taking part in such proceedings and voting upon the questions and resolutions relating thereto, had been duly elected and qualified members of such board during such meeting.”

That the Legislature has power to validate by subsequent legislation acts done under an assumed execution of statute authority which has not been strictly followed is undoubted, provided that the act done, or the manner in which it has been done, is such that the Legislature might have authorized it to have originally been done, or done in that way; that which, however, the Legislature could not originally authorize to be done, having been done, it cannot legalize by any subsequent act of legislation. (Town of Duanesburgh v. Jenkins, 57 N. Y. 177; Williams v. Town of Duanesburgh, 66 id. 129; Tifft v. The City of Buffalo, 82 id. 204; Ensign v. Barse, 107 id. 329.)

The question then arises as to the power of the Legislature to authorize the acts in the beginning. It will be seen by reading the legalizing act that it professes to legalize and ratify the proceedings of the board of supervisors so that they shall have the same force and eftect as if the persons sitting as members of such board and taking part in its proceedings had been duly elected and qualified members of the board.

As an adjudication of the right and title of Sullivan to his seat in the board of supervisors, the act cannot be held to be of any force or effect, because the Legislature is not clothed with any such power, except in the case of its own members.

So far as it can be construed as an attempt to qualify any persons not having been legally members of the board of supervisors, with the powers of supervisors, it seems to me it must fail; I have not been cited to any authority, nor have I been able to find any, giving any such power or authority to the Legislature. A supervisor cannot be created by legislative enactment; the office of supervisor is a constitutional office (see N. Y. Const. art. 3, § 22) and is elective. And to clothe any person with the powers of a supervisor who has not been elected, would be an act in direct conflict with the spirit and intent of that portion of the Constitution making supervisors elective. But it is said that the Legislature might have originally provided for the passage of resolutions like the one in question by the vote of a majority of the supervisors present and voting, or that it might have provided for the submission of the question to the people of the county without its having previously passed the board of supervisors ; that is undoubtedly true, if the Legislature had so authorized it to be done by a general law, but I do not think it can single out Essex county alone and provide a special proceeding for matters of this kind in that county; it must proceed by general laws. Section 18, article 3 of the Constitution provides that “The Legislature shall not pass a private or local bill in any of the following cases: * * * Locating or changing county seats.” And again, in the same section it is provided that The Legislature shall pass general laws providing for the cases enumerated in this section.” The directions as to what they shall pass is just as mandatory as the prohibition as to what they shall not pass; and the last clause quoted is a command, among other things, to pass general laws for the “locating'or changing of county seats.”

Pursuant to that command they have passed a general law providing for the locating or changing of county seats, which is embraced in chapter 686 of the Laws of 1892, and to hold that chapter 148 of the Laws of 1893 is a valid law is to except Essex county from the provisions of the general law and, in effect, to uphold a local law providing for the changing of the county seat. It is said that this act does not change the county seat; that is true, but that does not relieve it from the prohibition of the Constitution; it is a law regulating the method and procedure by which the change shall be made and applicable to Essex county alone.

I do not understand that when the Constitution says that the Legislature shall pass general laws providing for the cases where it prohibits the passage of local laws, that it i& to be considered as meaning that they are to pass general laws actually locating or changing county seats, but laws regulating the manner and providing for the procedure by which county seats shall be located or changed and a law providing a special procedure for one county alone comes within the constitutional inhibition.

For these reasons I think chapter 148 of the Laws of 1893 must be held void and of no force and' effect as a validating statute, and that the judgment herein should be reversed, and that judgment should be granted according to the prayer of the complaint.

Mayham, P. J., and PutNam, J., concurred.

Judgment reversed and judgment directed, adjudging that no valid resolution for the change or location of any county office of the county of Essex was adopted by the board of supervisors of Essex county at its sessions in 1892, and restraining the defendant from printing or distributing any ballots or incurring any expense for the purpose of submitting the question of the removal of the public buildings or changing the county seat of Essex county to the electors of the county of Essex, pursuant to any resolution purporting to have been passed by the board of supervisors of Essex county during the session of 1892, with costs and disbursements.


author: Vann, J.:

text:
    Gilbert Murdock, as Administrator, etc., et al., Respondents, v. Harriet Robinson et al., Appellants.

      Statute of Limitations —payment upon a recorded mortgage by the owner of a portion of the premises — effect thereof upon a purchaser of the remaining portion.

    A payment upon a recorded mortgage, made by tbe heirs of two joint and several mortgagors, while in the possession of the part of the mortgaged premises inherited by them from the mortgagors, keeps it alive as to the rest of the mortgaged land held by one acquiring title thereto by grant from one of the mortgagors, and from the heirs of another, although such grants were with warranty and for a valuable consideration, and no reference to the mortgage was contained in the deeds conveying the premises. (Merwin, J., dissenting.)
    Appeal by the defendants, Harriet Robinson, Mary Lamb and Clarissa Waterman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Otsego on the 9th day of March, 1893, with notice of an intention to bring up for review on such appeal an order of the Supreme Court substituting Gilbert Murdock as administrator, etc., of Harvey Murdock, deceased, as plaintiff in the place of Harvey Murdock, deceased, entered in the office of the clerk of Otsego county on the 6th day of April, 1892, and an order of the Supreme Court substituting Hiram S. Bradley as executor, etc., of Erastus Robinson, deceased, in the place of said Erastus Robinson, deceased, as a plaintiff in such action, entered in the office of the clerk of Otsego county on the 20th day of September, 1892, and also from an order of the Supreme Court made on March 7,1893, confirming the report of the referee and ordering judgment herein.
    This was an action to foreclose a mortgage dated September 21, 1861, and duly recorded on the twenty-sixth of October following, given' to the predecessors of the plaintiffs by Daniel Lamb a,nd Alanson Lamb, his son, who were at the time tenants in common of the mortgaged premises, each owning an undivided half thereof. Said mortgage, and the bond of even date, to which it was collateral, were conditioned for the payment of the sum of $826, in four equal annual payments, with interest on the unpaid principal, payable on the twenty-first day of September in each year.
    ■ Alanson Lamb died on the 23d day of April, 1870, intestate and unmarried, leaving the defendant Mary Lamb as his only heir at law. • On the 7th of January, 1871, Daniel Lamb conveyed to one George W. Palmer an undivided half of a part of said premises, known as the North house and lot, and on the same day Mary Lamb, who was then an infant, by Edward N. Griswold, her special guardian, conveyed to said Palmer the other undivided half of said portion. No mention of said mortgage was made in either conveyance, each of which was given for “ a full consideration,” with covenants of warranty. July 4, 1874, said Palmer conveyed said north part to tjie defendant Clarissa Waterman, by warranty deed, without reference to the mortgage, and she still remains the owner of the same.
    Daniel Lamb died intestate on the 1st of August, 1872, owning an equity of redemption in an undivided half of the rest of the premises, known as the South house and lot, and leaving as his only heirs at law and next of kin one Lucinda Lamb, now deceased, and the defendants Mary Lamb and Harriet Robinson. June 4, 1883, Harriet Robinson, Lucinda Lamb and Mary Lamb conveyed to one Andrew Shaw a small portion of the mortgaged premises, in consideration of the sum of fifty dollars, the full value thereof, and the plaintiffs released the same from the lien of said mortgage. Lucinda Lamb died intestate, November 8,1887, leaving as her only heirs at law and next of kin the said Mary Lamb and Harriet Robinson, who thereupon became and still are the owners of the equity of redemption in the South house and lot, which was worth the sum of $1,500. The value of the North house and lot did not appear.

      The interest on the principal of the mortgage was paid in fall to September 21, 1865, bnt no other payment, either of principal or interest, has since been made thereon by anyone, except that on the 8th of August, 1885, the sum of one dollar was paid to the plaintiffs, or their predecessors in title, by Lucinda Lamb, on behalf of herself, Mary Lamb and Harriet Robinson, in their presence, with their approval, and in recognition of the mortgage lien. The defendant Clarissa Waterman has never recognized the existence of the mortgage in any manner. The whole amount unpaid upon said bond and mortgage on the 20th of February, 1893, was the sum of $2,300.56. This action was commenced on the 13th of January, 1891. No personal representative of the estates of Daniel, Alanson or Lucinda Lamb, has ever been appointed. Judgment was rendered in favor of the plaintiffs for the foreclosure of the mortgage for the amount unpaid thereon.

      JE. M. Harris, for appellant Waterman.

      James W. Tucker and George Brooks, for appellants Lamb and Robinson.

      I/ywn J. Arnold, for the respondents.
   Vann, J.:

The main question presented by this appeal is whether a payment upon a bond and mortgage, made after a part of the land covered thereby had been conveyed without mention of the mortgage, by one who inherited the mortgaged premises from the deceased mortgagor, prevents the Statute of Limitations from running in favor of the grantee.

It has been held by the Court of Appeals of this State and by the Supreme Court of the United States that a partial payment made by the mortgagor himself, even after he has conveyed away the premises, arrests the operation of the statute, as to both grantor and grantee. (New York Life Ins. & Trust Co. v. Covert, 6 Abb. Pr. [N. S.] 154; Hughes v. Edwards, 9 Wheat. 489, 492. See, also, Barrett v. Prentiss, 57 Vt. 297.) This is upon the ground that as the grantee of the equity of redemption takes his title subject to the lien of a mortgage, duly recorded, he has constructive knowledge of the existence of the debt and of the power of the mortgagor to prevent tire exoneration of the land through the presumption of payment arising from lapse of time, by making partial payment or written acknowledgment. As payment is simply evidence from which an intent to renew the original promise may be inferred, it lias been held that a payment which is to operate as a new promise must be made by the debtor himself, or by his agent duly authorized to make the acknowledgment, or to do for him the act which is to be the evidence of the new promise. (Littlefield v. Littlefield, 91 N. Y. 203, 209; Smith v. Ryan, 66 id. 352; Miller v. Magee, 17 N. Y. St. Repr. 547, 549; Kelley v. Weber, 27 Hun, 8.)

The heirs of a mortgagor are hot his agents, nor do they stand upon the same basis that he did with reference to the debt secured by the mortgage. The debt represented by the bond is for the mortgagor to pay. He can renew it, and,' in so doing, renew the lien of the mortgage which was collateral thereto, even after he has parted with 1ns interest in the premises. But after his death, what is the obligation of his heirs in respect to a bond given by him ? Clearly their promise to pay his debt without some consideration moving to them would be a nudwnpackim and void, even if, as in the case before ns, the evidence of debt was a bond purporting to bind the mortgagor himself, liis heirs, executors and administrators. One, therefore, who sustained simply the legal relation of heir to the deceased mortgagor, but who had actually inherited nothing from him, could not bind himself to pay the bond by a promise without consideration. As partial payment is only evidence of a promise to pay the remainder of the debt thus recognized, such a payment, when there is no obligation to pay and no interest to protect, can have no more binding effect than an actual promise without consideration. When, however, the heirs have inherited the mortgaged premises, or even a portion thereof, from the mortgagor, and they have accepted the inheritance, how then do they stand with reference to the debt of their ancestor ? Whatever the rule was at common law, it is now provided by statute, that whenever any real estate subject to a mortgage executed by any ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator that such mortgage be otherwise paid.” (1 R. S. 749, § 4; 4 id. [8th ed.] 2461.) Under this statute, it has been held that the obligation of the heir to pay the mortgage is measured by, and may not exceed the value of the property which descended to him, including lands other than the mortgaged premises. (Hauselt v. Patterson, 124 N. Y. 349.) If the heir has conveyed any part of the land, the obligation to pay becomes personal to the extent of its value, otherwise it is in the nature of an obligation either to pay or to lose the entire inheritance. (Id.)

No question is raised on this appeal as to whether the persons making the payment or new promise would be personally liable for any deficiency, as judgment was not rendered against them to that extent, nor was it rendered against anyone, except for the enforcement of the lien of the mortgage. "Whether payment by the administrator would revive as to the heir, or vice versa, is not here material, as no personal representative of either mortgagor has been appointed.

A promise to pay by the heir in possession of the mortgaged premises, or of a part thereof, would have the support of a sufficient consideration when, as in this case, it was necesssary in order to prevent lawful dispossession through the process of foreclosure. An actual promise to pay the bond, made by the heir in proper form, Upon such a consideration, would adopt the debt and make it his own. (Tighe v. Morrison, 116 N. Y. 263; Smart v. Smart, 97 id. 559 ; Mallory v. Gillett, 21 id. 412.)

So, where the heir had conveyed a part of the land, and had received payment therefor, as in the case before us, he would be personally liable to the owner of the bond and mortgage to that extent, and this also would constitute a sufficient consideration to support his promise to pay the debt. (Hauselt v. Patterson, supra.) The payment in question, therefore, was evidence from which the inference is permissible that such a promise was made. Partial payment, based upon a lawful consideration, has no other effect upon the remainder of the debt, under any circumstances, according to the authorities. (Harper v. Fairley, 53 N. Y. 442, 444.) Aside from extinguishing the debt^w tanto, it renews the remainder, at least as to the person making the payment and thereby acknowledging and promising to pay it. While the statute now provides that an actual acknowledgment, or formal promise in terms, must be in writing, it expressly says that this does not alter the effect of a payment of principal or interest. (Code Civ. Proc. § 395.) A payment of part, therefore, is still evidence of a promise to pay the remainder. But whom does the payment or promise bind ? Does it affect anyone except the person making it, or does it keep the security alive as to all persons ? Lord Cranworth answered this question in Roddam v. Morley (1 De G. & J. 1), by saying that “ when a part payment, or payment of interest, has been made, which has the effect of preserving.any right of action, that right will be saved not only against the party making the payment, but also against all other parties liable on the specialty.” The learned judge added that as the statute does not restrict the effect of payment, the court cannot restrict it. It was held in that case that payment of interest by the tenant for life of a devised estate, keeps a specialty alive as to the persons entitled to the remainder.

Mr. Jones, in his work on Mortgages (4th ed., vol. 2, § 1202), says: “ A purchaser with actual notice of the mortgage, or constructive notice by means of a registry, can avail himself of the presumption of payment from lapse of time only when the mortgagor could avail himself of it under the same circumstances. The grantee succeeds to the estate and occupies the position of his grantor. He takes subject to the incumbrance, and his title and possession are no more adverse to the mortgagee than was the title and possession of the mortgagor. The purchaser is bound by the acts and declarations of the mortgagor, in respect to the mortgage, while he retains the equity of redemption or any part of it; as, for instance, the purchaser of a part of the mortgaged premises cannot claim a presumption of payment of the mortgage from lapse of time when this presumption is repelled by payments of interest made by the mortgagor within twenty years, or by his admission within this time that the mortgage was then subsisting. * * * The record is notice of the mortgage to a subsequent purchaser, and the mere fact that he has had actual possession under his purchase for the statute period of limitation is no bar to a foreclosure of the mortgage.”

In Pears v. Laing (L. R. [12 Eq.] 41), it was held that payment by one interested in the general residue of the real and personal estate of the ancestor, although not otherwise interested in the land covered by tbe mortgage upon which the payment was made, was sufficient to keep the debt alive and was binding upon all persons interested either in the mortgaged property or in the general estate, which was liable for repayment by reason of a covenant. This case was carefully considered, and although, like all the modern English cases, it was dependent to some extent upon a statute, the reasoning applies directly to the case in hand. If payment is effective when made by one interested in a fund out of which the mortgage is payable, it must be equally effective when made by one interested in land out of which the mortgage is payable. •

In Moller v. Duryee (21 Wkly. Dig. 458), it was held that payment upon a mortgage debt by the executor of the mortgagor kept the mortgage alive as against a grantee of the mortgagor. So, we think, that payment upon a mortgage made by the heirs of two joint and several mortgagors, while in possession of a part of the mortgaged premises^ inherited from those who gave the mortgage, keeps it alive as to a person holding the rest of the land by grant from one of the mortgagors and from the heirs of the other. Such a payment is not made by a stranger, but by those having, so to speak, a legal hand to pay with, for if the payment had not been made they might have lost their land. They were interested, because they paid to protect their title and • possession. It was furthermore their duty to pay, under the statute quoted above, if they retained possession of any part of the mortgaged premises, and also to the extent of the value of such portion as they had conveyed. This duty to j>ay not only relieves the payment from the imputation of having been made by volunteers, but also furnishes an adequate consideration. As payment by a mortgagor, after conveying, binds his grantee, so far as the lien of the mortgage is concerned, so payment by the heir, after it had become his duty to pay, should have the same effect.

This is the logical result of the decisions already referred to, made by the highest courts, which work out exemption from the statute through the recording of the mortgage and constructive notice to the purchaser, who is warned in advance by the Recording Act of the consequences that he may have to face, taken in connection with that other line of decisions which make payment evidence of a new promise. Whether it revives the debt to the extent of making anyone personally liable, we do not decide, as that question is not before ns ; but we simply bold that it revives tbe lien of the mortgage as tp all lands covered thereby, including those conveyed both by the mortgagors and their heirs. As the grantee would have been bound if she had made the payment herself, so she is bound, though perhaps to a less extent, when it is made by one whose duty it was to pay. This conclusion makes it unnecessary to consider the position of the respondents based upon section 403 of the Code of Civil Procedure.

After considering all of the questions to which our attention has been called, we are of the opinion that the judgment and orders appealed from should be affirmed, with costs.

HaediN, P. J., concurred; MeewiN, J., dissented.

Judgment and order affirmed, with costs.


author: Parker, J. :

text:
    William H. Buchanan and Others, Respondents, v. Albert Ashdown, Appellant.

      Mistaken boundary line — neither the owner nor the purchaser of adjacent land is estopped thereby — when acquiescence for twenty years is necessary.

    Where the owners of adjacent lands survey out a line and, believing the survey to be correct, fix the line accordingly, neither party assuming to know more than the other about it, and neither asking the other to do any act on the faith of it, neither party will be estopped from claiming up to the true line, when he discovers that a mistake has been made in the survey; particularly when the other party had made no improvements upon the land between the mistaken boundary line and the true one except to clear it up and appropriate the proceeds to his own use.
    Nor in such a case will either party be estopped from claiming up to the true line as against a person who has purchased the adjacent land from the other owner on the theory that the mistaken boundary line was the true one.
    ■When, owing to an inaccuracy or unintelligible description in a deed, or the obliteration of monuments referred to therein, a line, intended to be described by the conveyance, cannot be accurately located upon the ground, a location by agreement of the adjacent owners will be controlling, and when once made, even though by parol, cannot be repudiated by either; but where such line intended to be described by the conveyance can be found and located, a party who would substitute for that line another, fixed by parol agreement between adjacent owners, must show that the substituted line has been located and acquiesced in for at least twenty years.
    Appeal by the defendant, Albert Ashdown, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chemung on the 22d day of April, 1889, upon a verdict in favor of the plaintiffs, rendered at the Chemung County Circuit, awarding them the possession of five and three-tenths acres of land, and for fifteen dollars damages, and from an order entered in said Chemung county clerk’s office on the 18th day of July, 1890, denying the defendant’s motion for a new trial, made on a case and exceptions settled by the trial court.
    The action was in ejectment to recover a strip of' land lying adjacent to a disputed line. The defense relied upon was that a grantor, through whom the plaintiffs claim, was estopped from asserting his title, and that the line was fixed by a practical location of it.

      Wilmot K. Knapp, for the appellant.

      II H. Boohwell, for the respondents.
   Parker, J. :

There seems to be no doubt but that, according to the paper title of both parties, the land in dispute belongs to the plaintiffs. The defendant’s grantors never had any title west of the division line between the northeast and the northwest quarter of the 2,000 acre tract. All of his land must be found within the northeast quarter of that tract, and the plaintiffs’ land lies adjacent to and west of such division line. Also, it appears that there was no serious difficulty in locating such division line upon the ground, by surveying the whole tract, and starting from well-known monuments on the exterior lines of such tract. The land in dispute lies west of such division line properly located, and, hence, is not embraced within the northeast quarter of the tract.

But the defendant claims that owing to the conduct of one of the grantors through whom the plaintiffs claim, to wit, Fitzsimmons, his, defendant’s, rights have been extended over onto the northwest quarter, and up to the fence on the west side of the strip of land in dispute, and of which be lias for some years been in possession. lie claims tbis extension of bis title on two grounds:

First. That Fitzsimmons’ conduct estopped him and bis grantors from claiming farther east than the line of such fence.

Second. That such line was fixed by himself and Fitzsimmons by a practical location as the true line between them.

In 1811 the defendant held a contract from one Webb for the purchase of fifty-nine and one-lialf acres in the northeast quarter of such tract, and Fitzsimmons owned the land next adjacent on the west, and in the northwest quarter of the tract. There were then two lines running north and south blazed through the forest, the one some rods west of the other, and doubt existed as to which was the correct division line between the two quarters. The deed to Webb referred .to his land as the northeast quarter. The deed to Fitzsimmons did not refer to either quarter in its description, and did not give any monuments purporting to locate such division line between the two quarters. Webb claimed that the most westerly of the blazed fines was the division fine. Fitzsimmons claimed that the easterly of such blazed fines was the division fine between them.

The defendant claims that in 1871, Fitzsimmons, with a surveyor, came to him for the purpose of locating such fine; that they went onto the lot, surveyed it out, and agreed that the west fine blazed through the woods was the correct fine between them; that the defendant, acting thereon, the next year paid up his contract to Webb and took his deed from him, describing the land therein up to the west fine as so located; that he subsequently, from year to year, cleared up to that fine and built fences thereon, and for upwards of twelve years he had had a fence along the whole of such fine, and had cultivated and used up to that fence. Hence, he claims that he cannot now be disturbed in the possession of such land by any grantee of Fitzsimmons.

Generally in order to deprive the owner of land of his title thereto by an estoppel in pais, the acts or representations on which the estoppel is based must indicate intentional deceit, or at least such gross negligence as to evidence an intent to deceive. (Pom. Eq. Juris. §§ 806, 807; Trenton Banking Company v. Duncan, 86 N. Y. 230.)

It is said that the truth concerning the material facts represented or concealed, must have been known to the party sought to be estopped, at the time he made them, or else the circumstances must be such that a knowledge of the truth is necessarily imputed to him. (Pom. Eq. Juris. § 809.)

It sometimes occurs, however, that when there is actual intervention on the part of one having the title to land, which induces another to deal, concerning it, with a third person, as if he were the owner, the person having the title will be estopped from asserting it against the person so mislead, even though he did not at the time know that the title was his. Such estoppel is based on the theory that when one of two innocent parties must suffer a loss, it must be borne by that one of them who by his conduct made the injury possible. An illustration is found in the case of Storrs v. Barker (6 Johns. Ch. 166.)

In the case before us the most that can be charged against Fitz-simmons falls far short of indicating an intent to deceive, or of any negligence suggesting such an intent. From all the evidence there is on that subject, it is plain that Fitzsimmons neither knew, nor claimed to know, any more about the correct line than "Webb or the defendant, who represented Webb, knew. He had no better means of ascertaining than they had. Both Fitzsimmons and the defendant went upon the lot together, knew the facts which the surveyor assumed as correct, and the method which he adopted to find the true line, and as the result of such survey both agreed that the west line was the correct one. The facts which convinced the one convinced the other. From all that we know of the transaction, it seems to have been a conclusion reached and agreed upon by both, but based upon a mistaken and inaccurate survey. At least such is the only fair inference to be drawn from the evidence. Therefore, Fitzsimmons should not be held estopped on the ground that, knowing of his own claim to the land up to the east line, he either negligently or deceitfully allowed the defendant to believe that the west line was the correct one, and to purchase from Webb on that theory.

Nor do the facts warrant an estoppel against him on any ground. If he had assured the defendant that Webb owned up to the west line, and advised him to take a deed bounded by that line, it would be a case somewhat analogous to that of Storrs v. Barker, above cited, and it might be said that his conduct had caused the injury which the defendant must suffer. But there is nothing in the case to show that Fitzsimmons knew under what claim the defendant held the land, whether as vendee or grantee of Webb, or that any consequences would follow their act of fixing upon the line between them other than would ordinarily follow when two owners agree upon such a line. He did not suggest to the defendant to purchase from Webb, nor did he in fact give him-any assurance that Webb owned up to such line, beyond the survey that was then made and his acquiescing in it as a correct one.

It seems to be simply a case where the owners of adjacent lands survey out the line, and believing the survey to be correct, fix the line accordingly, neither party assuming to know more than the other about it, and neither asking or advising the other to make any purchase, or do any act on the faith of it. Surely by such conduct neither party would be estopped from claiming up to the true line, if in a month or a year thereafter, he should discover that a mistake had been made in the survey, and particularly when the defendant had made no improvements upon the premises, except to clear it up, and appropriate the proceeds to his own use.

The mere acquiescence of Fitzsimmons in a survey made by both parties, and supposed by both, to be correct, was by no means such an intervention or conduct on his part, “ as to render it just that as between himself and the defendant, he should bear the loss.” Unless the facts show such an equity no estoppel can be created. (See Trenton Banking Company v. Duncan, 86 N. Y. 222, 230; Hinkley v. Crouse, 125 id. 730.)

The claim that the west line was fixed by “ practical location,’? requires the examination of another rule. When, owing to an inaccurate or unintelligible description in a deed, or the obliteration of monuments referred to, the line intended by the conveyance cannot be accuratfely located upon the ground, a location by agreement of the adjacent owners will be controlling, and when once made, even though by parol, cannot be repudiated by either. But when the line intended by the conveyance can be found and located, a party who would substitute for that line another one fixed by parol agreement between the adjacent owners, must show that the substituted line bas been located and acquiesced in for at least twenty years. There need not be the actual possession of the land by the party claiming up to such line, that is necessary to sustain an adverse possession, but there must have been a location and acquiescence for that full period.

A careful examination of the decisions upon this subject will show that they are all in harmony with the rule as thus stated. In Clark v. Wethey (19 Wend. 320), it is held that declarations and acts of the parties going to establish a different location from that fixed by the deed are not admissible, but where, from vagueness and obscurity of the description, or from the decay or destruction of the monuments referred to in the deed, doubt and uncertainty exist in reference to the time, the declarations and acts of the parties may be shown.

In Baldwin v. Brown (16 N. Y. 359), it is said that it is not the parol agreement which establishes the line, but the long acquiescence in it, which “ affords ground, not merely for an inference of fact to go to the jury as evidence of an original parol agreement, but for a direct, legal inference as to the true boundary line,” also that “The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years.”

These cases have been continually cited and approved (see Reed v. Farr, 35 N. Y. 113 ; Reed v. McCourt, 41 id. 436; Corning v. Troy Iron & Nail Factory, 44 id. 595; Ratcliffe v. Gray, 3 Keyes, 510 ; Clark v. Baird, 5 Seld. 204 ; Raynor v. Timerson, 51 Barb. 519), and as recently as Eldridge v. Kenning (12 N. Y. Supp. 693), it is said that no title is gained by practical location in any less period than under the Statute of Limitations. To same effect is Clark v. Davis (19 N. Y. Supp. 191).

The cases of Vosburgh v. Teator (32 N. Y. 561); Williams v. Montgomery (16 Hun, 50), and Sherman v. Kane (86 N. Y. 73), so far as they would sustain a line acquiesced in for a less period than twenty years, I understand to refer to those instances where the line intended by the deed cannot be located with reasonable certainty.

In the ease before us, the deed to Webb, the defendant’s immediate grantor, described the land conveyed to him as the northeast quarter of the 2,000 acre tract, and there is no difficulty in locating that quarter, or in finding its true west line. In fact, it was plainly marked on the ground by a blazed line, but it was the easterly of the blazed lines instead of the westerly one. The parties in their survey mistakenly adopted the westerly one, but inasmuch as such mistaken location had not been acquiesced in for twenty years, the defendant’s claim under it had not ripened into a title, and Fitzsimmons and his grantors had not been thereby divested of the title which their deeds gave them.

If these views are correct, the defendant established no defense to the plaintiff’s claim, even though the facts be taken as he claims them to be. His motion for a nonsuit was properly denied, and the judgment against him was such as should have been rendered. "We conclude, therefore, that the judgment should be affirmed, with costs.

HabdiN, P. J., concurred; MeewiN, J., concurred in the result.

Judgment and order denying a new trial affirmed, with costs.