text:
    CHARLES W. DURANT, Plaintiff, v. WILLIAM P. ABENDROTH, Defendant.
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    PARTNERSHIP, LIMITED, UNDER THE REVISED STATUTES.
    I. Oebtificate and affidavit, when not sufficient.
    1. Truth. If the matters which the statute requires to be contained in the certificate and affidavit are stated therein untruly, a limited partnership will not be formed, and he who sought to confine his liability to that of a special, will become liable as a general, partner.

      (a) Truth is an essential requisite.
    2. Cash, tjntbue statement as to payment of.
    1. A statement in the certificate that the special partner has contributed ten thousand dollars in cash, and a statement in the accompanying affidavit that the sum specified in the certificate to have been contributed by a special partner, has been actually and in good faith paid in cash, are both untrue, where the only payment was by a cheek given at the time the certificate was signed and the affidavit made, but dated several days ahead.

      (a) Such check is not equivalent to a payment in cash on the day when it was given. That it was in fact paid on the day of its date, and before the future day fixed by the certificate for the commencement of the partnership, does not alter the case.

    (1) Uhdeb such a oebtificate so suppobted, he WHO SOUGHT TO BE A SPECIAL PABTNEB BECOMES LIABLE AS A GENEBAL PABTNEB.
    H. Statute, fob whose pbotection it was intended.
    1. Wholly for the benefit and protection of him who seeks to relieve himself of liability as general partner.

      (a) Not at all for the benefit or protection of those dealing with him or the partnership.

      Exceptions heard in the first instance at general term.
    This action was tried before Hon. John Sedgwick, and a jury, on the twenty-first day of October, 1875, when, by the order and direction of the court, made under objection and exception duly taken, a verdict for six thousand and twenty-four dollars and sixty-seven cents was rendered in favor of plaintiff. The judge directed the defendant’s exceptions to be heard, in the first instance, at general term, and suspended judgment in the meantime.
    The action is brought to recover of the three defendants, as copartners under the firm name of Griffith & Wundram, the amount of two promissory notes, conceded to have been made by that firm. Abendroth alone defends, claiming that the partnership is “limited” ; that he is a “special partner” ; and that he is, therefore, exempt from liability, except to the extent of his contribution to the capital stock paid in when the partnership was formed.
    It appeared in evidence that a certificate for the formation of a limited partnership was filed in the county clerk’s office, by the defendants, on December 23, 1870.
    That certificate stated, among other things, “that said copartnership is to commence on the first dajr of January, 1871, and is to terminate at the expiration of five years thereafter, and on the first day of January, 1876.” That “John Griffith and George W. Wundram, who reside in the city, county, and State of Hew York, are the general partners, and William P. Abendroth, who resides in the town of Eye, county of Westchester, and State of Hew York, is the special partner, and has contributed the sum of ten thousand dollars in cash, as the capital to be used in said business.” It is dated December 23,1870, is signed by all three defendants, and was acknowledged by all of them before a notary on that day.
    There was annexed to, and filed with the certificate, an affidavit, dated December 23, 1870, and sworn to on that day, before the same notary, by Griffith and Wundram, each swearing that “the sum specified in. said certificate to have been contributed by the special partner, as the capital stock of said firm, has been actually and in good faith paid in cash.”

    Annexed to the certificate and affidavit was the county clerk’s order, filed and recorded December 23, 1870, directing that the terms of this partnership be published in the New York Leader, and the New York Atlas, two papers published in the city and county of New York.
    The New York Leader, and the New York Atlas, were published weekly in the city of New York, on Saturday of each week, and the terms of the limited copartnership of Griffith & Wundram were published in such papers for six consecutive weeks, the first publication being on Saturday, December 31, 1870.
    The twenty-third day of December, 1870, fell on a Friday, and the twenty-fourth and thirty-first days of December, 1870, were Saturdays.
    Abendroth, called as a witness on behalf of the plaintiff, testified that the papers were signed December 23, 1870, and that his contribution to the capital of the firm was made on that day, by his check, dated December 31, 1870, which was paid, as soon as it went to bank, on January 2, 1871.
    The question presented is, whether, upon the facts o£ the case, Abendroth is liable as a general partner for the debts of the firm.

      Norwood & Coggeshall, attorneys, and of counsel for plaintiff, on the question decided by the court urged:

      I. (a) The defendants attempted to form a limited partnership pursuant to the statute, 1 B. 8. part II. chap. IV. tit. 1, p. 763, original paging. (5) The plaintiff claims that the certificate made by this defendant Abendroth and his partners Griffith and Wundrum, and by them dated, executed, acknowledged, and filed on December 23, 1870, was false in that it stated that the special partner had contributed the sum of ten thousand dollars in cash, whereas, in point of fact, this capital was not contributed any earlier than December 31, if it was cash even then. The question is simply whether or not that statement in the certificate was true or false within the meaning of section 8. Was the statement true ? Certainly not; and it was therefore a false statement. The provisions of the general statute of Massachusetts are the same as our own (Gen. St. Mass. chap. 55), and it has been there held that the requisitions of the statute must be strictly complied with. The parties are required to certify to that which has been done, not to that which is executory (Pierce v. Bryant, 87 Mass. [5 Allen] 91 ; Argall v. Smith, 3 Denio, 435 ; Lancaster v. Choate, 87 Mass. 568 ; Haggerty v. Foster, 103 Id. 17; Vandik v. Rorsaw, 67 Penn. 330 ; Richardson v. Hogg, 38 Id. 153 ; Hogg v. Orgill, 34 Id. see particularly p. 352 : Hubbard v. Morgan, cited 3 Kent's Com. 36, note a ; In the matter of King, 5 Benedict's Dist. Ct. Repts. 453 ; 7 American Law Review, 177).
    II. It is unnecessary to show any mala fides in making the certificate. Parties are bound to know the truth, and they can not be permitted to say that they acted in good faith in certifying to that which was in fact false (Pierce v. Bryant, ante ; Haggerty v. Foster, ante).

    III. It is quite immaterial that it does not appear that loss or injury has been sustained by any one in consequence of the failure to comply with the requisitions of the law (Pierce v. Bryant, ante).

      IV. Not only was the certificate false, bnt the affidavit reiterated the false statement. All that has been urged upon the points, ante, and the authorities cited, apply to the affidavit as well as to the certificate (Haviland v. Chase, 39 Barb. 273).
    V. (a) The defendants on the trial cited the case of Madison County Bank v. Gould (5 Hill, 309). (b) And the case of Lachaise v. Marks (4 E. D. Smith, 610). These cases are not applicable to the one at bar.

      Amherst Wight, Jr., attorney for defendant Abendroth, and John A. Mapes, of counsel, upon the question decided by the court, urged :
    I. The payment of the special capital, in the manner shown by the testimony, was a substantial and sufficient compliance with the terms of the statute, and did not constitute the defendant Abendroth a general partner. 1. The payment was actually made before the partnership went into effect by the terms of the certificate, the check being dated December 31, 1870, and paid on presentation, while the partnership was to commence January 1, 1871. For the purposes of this appeal it must be assumed, that the check was given December 83, 1870, the evidence on this point being conflicting, and the justice ordering a verdict, without submitting this question to the jury. 8. While the law requires that where rights and interests of creditors are imperiled, the statute should be strictly construed, it applies a more beneficent rule to cases where creditors interests are in no respects endangered ; and in such cases holds parties to a substantial compliance with the law only. For illustrations of this rule, the following cases are referred to: Brown & Argall, 24 Wend. 496 ; Madison Co. Bank v. Gould, 5 Hill, 309 ; Johnson v. McDonald, 8 Abb. 290 ; Levy v. Lock, 47 How. 394 ; Piper v. Poppenhausen, 43 N. Y. 73 ; Lachaise v. Marks, 4 E. D. Smith, 624; see also Lacharnette v. Thomas, 5 Rob. (La.) Rep. 172.
    II. Ho untrue statement, affecting the special partner, can be predicated of the certificate, as registered, or of the affidavit accompanying the same. Such certificate was executed in advance of the time when it was to take effect. Ho special partner pays in his capital until the papers are executed. To do so would be both unnecessary and dangerous, and yet the certificate always recites that the special partner “has contributed,” &c. This is like the acknowledgment of payment in a deed—always literally untrue when signed, and yet generally made true when it takes effect. So, in this case, the certificate was made true when it took effect, to wit: January 1, 1871. There was no necessity for filing or registering this certificate until that date, and it does not appear that Abendroth knew either of its previous registry, or that the general partner had appended an affidavit thereto, on December 23. As bearing on this point, see Ward v. Newell, 42 Barb. 482; Madison Co. Bank v. Gould, above cited, 5 Hill, 309.
    III. The statute authorizing the formation of “limited partnerships” should be construed according to the rule universally laid down by the courts of this State, that statutes must be expounded according to their meaning and not according to the letter, that the intention of the legislature in enacting the statute must be ascertained, and the real intention should prevail over the literal rendering of the statute. This rule is laid down and applied in numerous cases, of which only the following are cited : People v. N. Y. Central R. R., 13 N. Y. 78 ; Holmes v. Carley, 31 Id. 289 ; Chase v. N. Y. Central R. R., 26 Id. 523; People v. Draper, 15 Id. 532; N. Y. & Harlem R. R. v. Kip, 46 Id. 546 ; Smith v. The People, 47 Id. 330. 1. There can be no doubt that the intention of the legislature, in enacting the statute authorizing the formation of limited partnerships, was to invite and encourage the use of capital in commercial, mercantile, and manufacturing enterprises by restricting the liability of special partners to the amount of capital invested by them, upon their compliance with certain provisions of the statute, intended mainly to give notice to creditors of the conditions of the partnership. 2. To subject special partners to full liability for debts on account of a mere technical defect in the papers forming the partnership, when the spirit and substance of the law are observed, would be to defeat the intention of the statute, by deterring rather than encouraging capitalists, to avail themselves of its provisions. 3. All that can be reasonably required is that the creditors as well as the special partner, shall be protected by a substantial compliance with the spirit and intent of the law. If this be done, the law will not impose a severe penalty for the mere violation of the letter of the statute. As bearing on this, see Murray v. Central R. R. Co. (3 Abb. Ct. of App. 339).
   By the Court.—Sanford, J.

The exemption from general liability for partnership debts, accorded to special partners, by the act. entitled “ Of limited partnerships ” (2 R. S. part II. ch. IV. title 1), depends upon a strict compliance with those requirements of the statute which prescribe the steps to be taken by persons desirous of forming such partnerships.

In according such exemption the statute is in derogation of common right, and the immunities, for which it provides, depend upon the performance of precedent conditions. It must therefore be strictly construed (Argall v. Smith, 3 Den. 435).

Among the conditions prescribed are: (1) The making, signing, and filing of a duly acknowledged certificate, containing, among other things, a statement of the amount of capital which each special partner shall have contributed to the common stock. (2) The filing, concurrently with such certificate, of an affidavit made by one or more of the general partners, to the effect that the sums specified in the certificate to have been contributed by each of the special partners, have been, actually and in good faith, paid in cash.

By these conditions, limited liability depends, not upon payment either before or after the date fixed for the commencement of the partnership, but upon the filing of a true certificate and affidavit showing such payment to have been made. “Ho such partnership shall be deemed to have been formed” until a certificate and affidavit “ shall have been filed as above directed.” Moreover, the act in express terms provides that if any false statement be made, either in certificate or affidavit, all the persons interested in such partnership shall be liable as general partner’s.

The obvious intent, as well as the clear and unambiguous language of the statute, requires that payment, in cash, by each special, partner, of the amount of his contribution to the capital stock, shall precede the signing and acknowledgment of the certificate. How otherwise can a certificate be made, which “shall contain” a true statement of the amount of capital which each special partner “ shall have contributed 1 ” The filing of a true certificate and affidavit is not a mere matter of form. It is the substantive requirement of the statute, upon which the privilege of limited liability depends. Of course, payment must be made, as required, since, otherwise, no certificate or affidavit showing payment to have been made would be true ; but exemption depends not merely upon payment, but upon the filing of a true certificate and affidavit of payment.

In the present case, no such certificate and affidavit were ever filed.

The certificate and affidavit which were made and filed, were regular in form, and ostensibly complied with the requirements of the statute. But they were not true. They contained false statements. The special capital stated therein to have been actually paid, in cash, had not been so paid. A check, dated a week or more ahead, is not cash, and the signing and delivering of such a check is not an actual payment, in cash.

Argument in support of a proposition so plain seems out of place. What can not be controverted, need not be demonstrated. The result is inevitable. No limited partnership can be deemed to have been formed. No exemption was secured. All interested in the partnership remained liable for all the engagements thereof, as general partners.

It is insisted that the subsequent payment of the check, on January 2, when it went into bank, was a substantial compliance with the statute; that such payment had relation back to the date of the certificate and affidavit; or, that the certificate and affidavit then became operative and took effect; that the plaintiff has been in no way prejudiced or misled; and that the statute was intended as much for the protection of the special partner, as for that of those dealing with him. I think it was intended wholly for the benefit and protection of the special partner, and not at all for the protection of those dealing with him. They had all the protection they needed at common law. He sought exemption from common law liability. The statute accorded it, on certain specified conditions. He. failed to comply with them. He was not misled, nor is he prejudiced. The liability of general partners is not imposed as a penalty ; a contingent statutory exemption is accorded to special partners as a privilege. The spirit of the statute is in no wise at variance with its letter. It demands the truth. To' construe it in such wise as to dispense with the truth would be tantamount to a repeal of its plain provisions. The distinction between truth and falsehood can not be obliterated by construction. If an affidavit be false when made, no subsequent performance of the act which it declares to have already been performed, can make it true ; and no amount of casuistry can justify an adjudication which shall accord to falsehood the immunities which legislation has reserved exclusively for truth.

I hold that the partnership of the defendants was general and not limited, for the reason that false statements were made in the certificate and affidavit.

It is, therefore, unnecessary to consider the irregularity in publishing the terms of the partnership, to , which our attention has been directed.

A construction of the statute which would accord immunity to the defendant, under the circumstances, already discussed, would be sufficiently liberal to tolerate a much more serious infraction of its requirements than that which is involved in the publication as made.

Judgment is ordered for the plaintiff, upon the verdict, with costs.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sanford, J.

license: Public Domain

text:
    HENRY BREWSTER, Plaintiff and Respondent, v. EBENEZER H. BALCH, Defendant and Appellant.
    I. SURETY.
    1. Instrument, joint and several, executed by, construction of, as against him.

      (a) Saíne rules obtain as against the principal.

    1. Rules of construction.
    1. The situation of the parties, and the hazards against which the security was exacted, must be considered.
    H. ADMINISTRATOR’S BOND.
    1. Construction of.
    1. On the appointment of Mary Cooley, administratrix, and Charles H. Davis, administrator, they executed a bond, with two sureties conditioned that “the above bounden M. C. and C. H. D. shall faithfully execute the trust reposed in her as administratrix and administrator of all and singular the goods,” &c., “of H. 0., deceased, and obey all orders of the surrogate, touching the administration of the estate committed to her."

      (a) Question. Is defendant (one of the sureties) liable for a devastavit committed by 0. H. D., or for his disobedience of an order of the surrogate.

      Held,

    that he was—
    1. In view of the statute requiring security it must be deemed that the parties intended that the obligees, both principals and sureties, should be responsible for the faithful execution by both administrator and administratrix of the trust reposed in them,.

    3. The insertion of the name, O. H. I)., and of the words, “ as administrator," show that it was the design of the parties to become responsible for the faithful execution by 0. H. D., as well as by M. 0., of the designated trusts. The trust designated was‘‘the administration of the estate of H. C.
    (a) The phrases, “reposed in her,” “committed to her,” are unnecessary words of description, and, if false or erroneous, might properly be omitted.
    Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    (5) But they are neither false nor erroneous. The trust was reposed in M. 0., and none the less so because it was also reposed in 0. H. D.
    3. Bbeach of, what constitutes.
    1. A refusal by an administrator to obey a surrogate’s order requiring him to malee a certain payment out of assets found and decreed to be in his hands, constitutes a breach.

      (a) This, although there has been no accounting by his co-administrator, nor any application therefor, and although the accounting on which the order was made was on the application of his co-administrator.

    3. P abites to action on.
    I. Plaintiff.

      The creditor to whom the surrogate directs payment to be made, may proceed against the sureties upon the administrator’s refusal to pay, and an assignment of the bond.

    Appeal from a judgment.
    The facts appear in the opinion.

      James Ridgeway, attorney, and W. W. Mann, of counsel for appellant, urged :
    I. The plaintiff has no right to maintain this action, even though the bond be held good in form and substance. The bond was executed to the people of the State of New York, who alone have the right to prosecute it. The surrogate had no power to assign the bond to the plaintiff, as alleged in the complaint, and any such order made by the surrogate was absolutely void, and gave no title to the plaintiff (Banks’ 5 Ed. 2 Rev. Stat. p. 120, § 19, and Latos 1830, chap. 320, § 19).
    II. The provisions of the Code requiring actions to be brought in the name of the party in interest, does not help the plaintiff. The order, as made by the surrogate, was, as stated in the complaint, that Davis pay three hundred dollars, viz : one hundred and fifty dollars to the plaintiff in the proceeding before the surrogate, and one hundred and fifty dollars for auditor’s fees. There is no allegation of any assignment of auditor’s fees to the plaintiff, nor will this provision apply to a statutory bond like the one in suit.
    III. Mary Cooley was administratrix jointly with Charles H. Davis as administrator. There was no order of the surrogate requiring her to account, nor is there any account, except inferentially that she did not participate in the administration. She should have been called upon to account, for non constat tliere was sufficient funds in her hands to have paid auditor’s fees and proctor’s fees, and the surrogate had no power or authority to make an ex-parte order, requiring one of the administrators to account and pay it. The order to account should have been against both.
    IV. The bond upon which this action is based was a bond for the performance of the duties of Mary Cooley, as administratrix of the goods and chattels which were of Horace Cooley, deceased.' la the language of the bond, the estate was committed to her, and to her only, and this court has no right to imply any engagements not named in the bond as against this defendant, who was simply surety and nothing more. The rule of construction in favor of a surety excludes implied engagements, and calls for exact performances of express stipulations (Rochester City Bank v. Elwood, 21 N. Y. 88; Ludlow v. Simond, 2 Caines Cases, 1 ; Walsh v. Bailie, 10 Johns. 180 ; Miller v. Stewart, 9 Wheaton, 680; Field v. Rawlins, 1 Gilman, 581).
    V. If we are met by the allegation that the present condition of the bond is the result of a mere clerical error, we reply that an action should have been brought, if such was the fact, to reform the contract. Non constat defendant executed the bond upon the lull understanding that Mary Cooley would be the acting administratrix, and while under such an agreement he was willing to become her surety ; he would not if Davis was to be the acting administrator. The judgment should be reversed, absolutely, with costs to defendant.

      H. Brewster, attorney, and of counsel for respondent, urged :
    I. The appellant signed as surety for Charles H. Davis as well as for Mary Cooley, and the parties bind themselves jointly and severally in the penal part of the bond. And this provision as to its being joint and several, runs all through the bond, and applies to the condition as well (Kirby v. Turner, Hopkins, 309 ; Negley v. Gard, 20 Ohio, 310).
    II. An action will lie on a several accounting of one administrator (People v. Downing and others, 4 Sandf. S. C. 189; 7 Johns. Ch. 17; Dayton on Surrogates, 2 Ed. 484, 485).
    III. The bond was objected as insufficient to reach this case because the condition states the trust reposed in her, instead of them, and again the estate committed to her. This was a mere clerical slip in filling up a blank. By what is in the condition without this, the sense is plain. The intent is to govern in all cases. This rule applies to sureties as well as all other parties (Chit. on Contracts, 517; Relloni v. Freeborn, Court of Appeals, Dec. 1875, reported Albany Law Jour. Jan. 22, 1876, p. 62). Where enough is left falsity will not hurt (Burr v. Broadway Ins. Co., 16 N. Y. 267 ; Caroni v. Jerome, 58 Id. 315). This last case was on an administrator’s bond.
    IY. Although the previous points appear to me to cover the entire case, it may be proper to suggest that no objection can now be taken as to parties (Depuy v. Strong, 4 Abb. Pr. N. S. 340 ; O’Connor v. Such, 9 Bos. 318). That the mode of proceeding in this case was correct (Laws of 1837, p. 535, §§ 63, 64, 65 ; Laws of 1844, p. 91, § 2). The bond was properly assigned (Baggott v. Boulger, 2 Duer, 160).
   By the Court.—Sanford, J.

Charles H. Davis and Mary Cooley were appointed administrator and administratrix of Horace Cooley, deceased, and letters of administration were issued to them, by the surrogate of the county of Hew York, upon the execution by them and their sureties of the bond or obligation upon which this action is brought. The condition of the bond is that the above bounden Mary Cooley and Charles H. Davis shall faithfully execute the trust reposed in her, as administratrix and administrator of all and' singular the goods, chattels, and credits of Horace Cooley, late of the city of Hew York, deceased, and obey all orders of the surrogate, touching the administration of the estate committed to her. It is insisted, on behalf of the defendant Balch, one of the sureties on the bond, that, as against him as such surety, the bond must be strictly construed, and that upon a strict construction, he can not be held liable for a devastavit committed by Davis, nor for Davis’s disobedience of the order of the surrogate requiring the payment of a sum of money to the plaintiff, out of assets decreed to be in his hands as administrator of the estate.

1. The liability of principals and sureties upon a joint and several obligation is determined upon the same rules of construction ; and, with respect to both, the situation of the parties, and the hazards against which the security was exacted, must be considered in determining the legal effect of the instrument (Rochester City Bank v. Elwood, 21 N. Y. 88). If, therefore, Davis is liable upon the bond, so also is Balch. The statute requires that “ every .person appointed administrator shall before receiving letters, execute a bond with two or more competent sureties, to be approved by the surrogate ; and the bond shall be conditioned that such administrator shall faithfully execute the trust reposed in him as such, and also that he shall obey all orders of such surrogate touching the administration of the estate committed to him ” (2 R. S. 77). The intention of the parties, in view of the statutory requirement, doubtless was that the bond should be, and should be deemed and taken to be, a full compliance therewith ; and that the obligors, both principals and sureties, should become and be responsible for the faithful performance by both administrator and administratrix of the trust reposed in them. To suppose otherwise would involve the implication of an intended evasion of, and fraud upon the law. No such evasion and fraud is to be presumed, as within the contemplation of either or any of the parties. The honest intent is not only to be presumed, but is, I think, fairly manifested by the terms of the instrument, without the slightest change, by construction, of its peculiar phraseology ; and especially, if its phraseology is considered in connection with the statute. If there be any failure to express such intent, it was, in all probability, occasioned by a mere clerical error in the filling up of a blank. But I am of opinion that the language used sufficiently expresses such intent. Had the name of “Charles H. Davis” and the words, “as administrator,” been wholly omitted from the condition of the bond, there might, consistently with an honest purpose and intent on the part of the parties, have been ground for the construction contended for by the defendant Balch ; but it is impossible to give any force or sig nificance to the insertion of that name and those words, without assuming that the design and purpose of the parties was to become responsible for the faithful execution by Davis as well as by Mary Cooley of the designated trust. That trust was the administration of tiie estate of Horace Cooley, as appears by the express terms of the instrument; and the words “reposed in her,” and “ committed to her,” are but additional and unnecessary words of description which do no harm, and which, even if wholly erroneous and false, might properly be rejected, inasmuch as the trust intended to be described is otherwise designated with certainty. If the intent is clear, the mistake is to be disregarded, and no reformation of the instrument by an appeal to the equitable power and jurisdiction of the court, is requisite. 6‘ Falso demonslratio non nooeV'1 (Burr v. Broadway Ins. Co., 16 N. Y. 267). But those words are not false nor erroneous, and it is quite unnecessary to reject them. As matter of fact, the trust was reposed in Mary Cooley; and none the less because it was also reposed in Davis. H"or was he the less bound to execute that trust, reposed also in him, because in the condition of the bond it was described as reposed in her. The condition was that both should faithfully execute that trust, and it was for its faithful execution by “Davis ” as “ administrator,” as well as by “ Mary Cooley as administratrix,” that the sureties, in express terms, became bound.

2. The failure of Davis to comply with the order of the surrogate requiring payment to the plaintiff out of the assets found and decreed to be in his hands, constituted a breach of the condition of the bond, quite irrespective of any accounting by Mary Cooley, or any application therefor. He was called to account upon her application, as he well might be, and was held liable upon an accounting to which she was a party. The creditor of the estate to whom, by the order of the surrogate, he was directed to make payment, had the right to proceed against his sureties upon his refusal, and an assignment of the bond.

The judgment should be affirmed with costs of the appeal.

Spier, J., concurred.


text:
    FRANCIS C. CORMIER, et. al., Plaintiffs and Appellants, v. WILLIAM BATTY, Defendant and Respondent.
    I. TROVER.
    1. OOKVEBSIOS".
    («) Prima facie evidence of.

    1. Original tortious taking is ; this as against any one to whose possession the property may come.
    3. Demand and refusal is.
    Conclusive,—either of them is conclusive if nothing appears to avoid their effect.
    (6) Original tortious taking.

    1. Its effect as establishing a conversion will be avoided, when. (») Bona-fide purchaser. When the defendant is an innocent bona-fide purchaser, and received the property by delivery from Ms vendor.

    1. This is one case of avoidance.
    1. A bona fide purchase and, delivery must concur. If either element is wanting there is no avoidance.

      Q>) Bubtheh of pboof. It devolves on the defendant to show the facts constituting the avoidance.
    But,
    1. Even if it devolved on plaintiff to show that defendant was not a bona-fide purchaser, or did not receive the property by delivery, evidence that the property had been pointed out to defendant .as the plaintiff’s property, and that it was plainly marked so as to be readily identified ; that the sale to defendant was for a pre-existing indebtedness due him by a firm of which the plaintiff was a member; that at the time of the sale the property was lying on a beach ready for shipment, and was taken from there and loaded on a vessel by defendant’s orders, and under his direction, for his account is sufficient, it being uncontradieted, to establish—
    1. That defendant was not an innocent bona-fide purchaser.
    3, That he took and carried away the property without any actual delivery to him by the vendor.

      (c) Receiver appointed in another action.

      1. Taking possession by him of the property in question, effect of.
    1. Will not exonerate the defendant in the trover action from liability for the value of the property, if once liable therefor on a tortious taking.

      (a) This though the receiver was appointed in an action instituted by the plaintiff in the trover action, and at his instance, and though possession was taken by the receivers with the knowledge, and without objection on the part of said plaintiff, and though on defendant in the trover action giving security to account, the receivership was discharged, and the property delivered to such plaintiff.
    II. RES-ÁDJUDICATA.
    1. Where A. brings an action against B. and C. to dissolve a partnership existing between him and B., and to set aside a transfer of the firm property by B. to C., which transfer covered individual property of A. (it being claimed by B. to be a part of the firm property), and 0. in his answer insisted on the validity of all the transfers to him by B., including the one covering the individual property of A., and claimed that property as his own, and- insisted on his right to hold and use it ; and the record shows that the ownership of the property, and C.’s good faith in purchasing it, was both litigated and decided adversely to 0., such reeoi'd is competent evidence in an action of trover brought by A. against 0. to recover damages for the conversion of such individual property, both on the question of ownership and of good faith.

      (a) It operates as an estoppel upon Ods denying the ownership of A., and also from claiming that he was an innocent bonafide purchaser.

      Before Speir and Sanford, JJ.

      Decided March 20, 1876.
    Appeal from a judgment on a verdict for defendant, rendered by direction of the court.
    The cause was tried before the Chief Justice and a jury, October 6, 1875.
    The action was brought to recover damages for an alleged wrongful conversion of certain logs of red cedar and cedar bolts, the property of the plaintiffs. Defense, a general denial. It was conceded, on the argument, that the plaintiffs’ right of property and possession were adequately proved; but the defendant contended that there was no proof of a wrongful conversion. It appeared in evidence that the goods were brought by defendant from Cedar Keys to Hew York, and were there sold by him, and his liability to account to the plaintiffs, in a proper action, for the proceeds of such sale, is not controverted by his counsel. The plaintiffs contend that he is liable for the value of the goods, on the ground of a tortious taking and conversion of them.
    In April, 1872, the property in question, then in the actual possession of plaintiffs, as its owners, was lying on the beach at Cedar Keys, piled up and ready for shipment. A partnership then existed between plaintiffs and the defendant’s sons, its business being the purchase and sale of cedar wood and other merchandise, at Cedar Keys and in Hew York. The plaintiffs carried on the firm business in Hew York ; the defendant’s sons at Cedar Keys. Their father, the defendant, was a creditor of the firm. In the latter part of May, 1872, without the knowledge or assent of the plaintiffs, their copartners, the defendant’s sons made a sale and transfer of logs and other merchandise, the property of the firm, and also of these logs and bolts, the separate property of the plaintiffs, to the defendant, the consideration of such sale and tranfer being the pre-existing indebtedness from the firm to him. The defendant’s sons claimed that the property in question belonged to the firm, but such was not the fact. By direction of the defendant, the whole property thus purchased by him was laden on a schooner, and shipped to blew York. Before its arrival there, suit was instituted by plaintiffs against the defendant and his sons, in the supreme court, for a dissolution of the partnership, the avoidance of the transfer of firm property to defendant, and for other relief. A receiver was appointed in such suit, who, on the arrival of the schooner, with the knowledge of the plaintiffs and without objection on their part, took possession of the entire cargo, including the plaintiff’s logs and bolts, and caused it to be stored. The receivership was shortly afterwards discharged, on motion of defendant, upon his giving security to account, and the cargo, including the property nowin question, was restored to and immediately sold by him. The plaintiffs made no demand for the possession of the property w'hile it was in the possession of the receiver or afterwards, and it was sold with their knowledge, and without objection from them.

      Rodman & Adams, attorneys, and T. H. Rodman, of counsel for appellants, urged:
    I. Upon the whole case as it stood at the close, it was not for the court to direct the j ury that no wrongful conversion had been shown. The plaintiffs’ proof was all-sufficient to show an original tortious taking by the defendant, but there is more in the case. The plaintiffs have proved title to these one hundred and eighty-one logs, and an undisputed wrongful talking by the defendant’s sons, through whom he claims. It then lies upon the defendant to show affirmatively that he came to possession in perfect good faith for a lawful purpose. If goods be wrongfully taken by one party, he who subsequently comes into possession is deemed as much a wrongdoer as the original tortious taker, unless he affirmatively prove his bona-fldes, and without "such proof no demand need be shown (Tallman v. Turck, 26 Barb. 169 ; Barrett v. Warren, 3 Hill, 348 ; Pierce v. Van Dyke, 6 Id. 613 ; Ely v. Ehle, 3 N. Y. 506). The defendant here, to prove his bona-fldes, absents himself from the trial of the cause, and sends- his son Eugene to swear only to personal ignorance in the matter. The direction of the judge to the jury that no wrongful conversion had been shown was clear error.
    II. But the plaintiffs’ exception to the exclusion of the judgment roll in the suit of themselves as plaintiffs, and the defendant in this action as a defendant, is good. The defendant’s son Eugene had sworn that these one hundred and eighty-one logs had passed to this defendant by a sale made by his sons at Cedar Keys in May, 1872. This judgment roll contains the findings of the referee in the cause, that the sale was fraudulent, without consideration, made with the intent on the part of the defendant and his sons to cheat and defraud these plaintiffs. There is a further finding as to the plaintiffs’ title to the one hundred and eighty-one logs, and that they have never in any way parted with their title to the samé, or their right thereto. This is res judicata as to waiver up to the date of the referee’s report, July 10,1875. This record is not only evidence, but conclusive evidence as between the parties to this action upon the question of Plaintiffs’ title, the question of wrongful conversion, and the question of waiver. For its exclusion there must be a new trial.
    III. The defendant urges that by the acts or admissions of the plaintiffs in FTew York, subsequent to the arrival of the one hundred and eighty-one logs there, they have waived the tort of the defendant. The one hundred and eighty-one logs—one thousand eight hundred and eighty-two cubic feet—arrived in Hew York in July 1872. among a cargo of fifteen thousand feet, the whole being apparently the subject of the fraudulent sale which the sons had at Cedar Keys shade to their father in May previous. The plaintiffs immediately attacked this wholesale transfer of their partnership property, and July 16, 1872, had a receiver appointed of the same. The receiver’s appointment is exclusively confined to the partnership property. He, however, seems to have taken possession of the whole cargo, including the one hundred and eighty-one logs. This was a conversion by the receiver, for he had. no title and no right to these logs. His act gave the court no jurisdiction over the property. He placed the cargo in the yard of a wharfinger, as whose servants these plaintiffs conducted its reception into the yard. The plaintiffs acquired no possession of the wood. The possession was the wharfinger’s. August 3, 1872, the receiver, in spite of the plaintiff’s opposition, was discharged, and ordered to transfer back to this defendant the property taken possession of by him, the receiver, on said defendant’s filing security to account. This was. done, and the defendant received back the whole cargo, and sold it immediately. While this order, perhaps, in terms covers the whole cargo, this court will not pervert its sense and evident intent to protect this defendant against the consequences of his fraud. The action, in which the receiver had been appointed and this order made, exclusively concerned partnership property. The first order gave the receiver no right or title to the one hundred and eighty-one logs, and he therefore had no title or interest in them which the second order could divest. The property was not and could not "be before the court in that action. William Batty could not account in the partnership suit for the property, the subject of this action, which was not partnership property, and the referee in that suit when the defendant tried to account there so as to purge this fraud, struck the matter out. Again, the pleadings in the judgment roll show that these one hundred and eighty-one logs were not under consideration in the partnership suit, and they explain the order.
    IV. But all these considerations, even if held against the plaintiffs, will not avail the defendant. It is claimed that they operate as waiver, or estoppel against the plaintiffs. Wot so (Martin v. Angell, 7 Barb. 410 ; Dezell v. Odell, 3 Hill, 215 ; Sharpley v. Abbott, 42 N. Y. 448; Baker v. Union, &c., 43 Id. 289 ; Lawrence v. Brown, 5 Id. 394; Chatauque Co. Bank v. White, 6 Id. 236 ; Jewett v. Miller, 10 Id. 402 ; Brown v. Bowen, 30 Id. 541). Wo act of these plaintiffs, no fact shown on the record, has prejudiced their cause of action. Whenever a right of action has once vested in a man, it can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done (McKnight v. Dunlop, 5 N. Y. 544 ; Willoughby v. Backhouse, 4 Dowl. & Ryl. 539 ; Christianson v. Suiford, 19 Abb. 22 ; Heam v. Rogers, 9 B. & C. 577). After a wrongful taking and carrying away of property, the cause of action is complete and an offer to return the property is no defense, either full or partial, because the cause of action fs complete (Woodruff, J., Brewster v. Silence, 38 N. Y. 428 ; Bronson, J., Hamner v. Wilsey, 17 Wend. 93 ; Bronson, J., in Otis v. Jones, 21 Id. 396 ; Higgins v. Whitney, 24 Id. 380 ; see Otis v. Jones, 21 Id. 396). Even the return and acceptance by the owner of property tortiously tafeen does not bar the claim for damages. The return and acceptance only operates to mitigate the damages (Vosburgh v. Welsh, 11 Johns. 176). Grant, then, to the order discharging the receiver, and to the silence of the plaintiffs before the defendant, all the effect which the law allows, and the plaintiffs’ cause of action is still complete as on the day when the defendant wrongfully converted their property. There has been no satisfaction and no release.

      Edward L. Owens, attorney, and John E. Parsons, of counsel for respondent, urged:
    I. There was no error in dismissing the complaint. 1. In order to maintain their action the plaintiffs were bound to prove (1) ownership and right of possession, (2) the wrongful taking and conversion of the property. The plaintiffs proved the ownership, yet they entirely failed to prove the wrongful conversion of the property (Hill v. Covell, 1 Comst. 522; Whitney v. Slawson, 30 Barb. 276). 2. The evidence does not show that the defendant became wrongfully possessed of the property in Florida, but it does show that, with the knowledge of the plaintiffs, and without any objection on their part, the property had been transferred to the defendant, and by him shipped to Hew York. Defendant was, therefore, lawfully in possession, and until demand and refusal there was no conversion (Storm v. Livingston, 6 Johns. 43 ; Hall v. Robinson, 2 Comst. 293; Tripp v. Pulver, 2 Hun, 511). 3. To maintain tortious conversion, the defendant must have had knowledge that at the time of the transfer and shipment, the property belonged to plaintiffs ; there is no evidence of that fact. 4. But if the original, taking was tortious, still as the property upon its arrival was taken by the receiver appointed upon the application of the plaintiffs, and put in store with their assent, such tortious act was thereby condoned. Delivering to the receiver was not, under the circumstances, a conversion. 5. The defendant afterwards became lawfully possessed of the property under the order directing the receiver to deliver the same to him. Under these circumstances, to maintain conversion, it was necessary to prove demand and refusal to deliver the property. USTo such proof was given ; on the contrary, the proof shows affirmatively that there was no demand (See cases above cited).
    II. There was no error in excluding the judgment offered by the plaintiffs. 1. The judgment was in another and different suit wherein the parties were not the same as in this action, nor did it involve the same subject-matter. 2. ■ It was only admissible, if at all. to prove ownership to the property, and as that fact had been proved, and not controverted by the defendant, it was immaterial for that purpose. 3. It does not prove that the defendant knew that the property in question at the time of its transfer and shipment, belonged to the plaintiffs, and without such proof there was no tortious conversion. In order to make the judgment evidence, it should appear that this matter was in issue (Manny v. Harris, 2 Johns. 24 ; Campbell v. Butts, 3 Comst. 173; Farnham v. Hotchkiss, 2 Keyes, 10; People v. Johnson, 38 N. Y. 63). Inference or argument from this judgment will not be sufficient (Dunckle v. Wiles, 1 Ker. 420-430). 4. It did not disprove or tend to disprove, the plaintiffs’ proof that it was by order of the court that the defendant received the property after the receiver took possession of it on plaintiffs’ application. 5. But if it was in anyway admissible, still the plaintiffs were not injured by its exclusion ; it proved nothing pertinent to this case, and therefore this court should not reverse the judgment and order a new trial, because of its exclusion (Beebe v. Bull, 12 Wend. 504; Hayden v. Pulver, 2 Hill, 205; People v. Wiley, 3 Id. 194 ; Worrall v. Parmelee, 1 N. Y. 519; Vandervoort v. Gould, 36 Id. 629, 644; People v. Waterford Co., 2 Keyes, 327, 336).
   By the Court.—Sanford, J.

The verdict for defendants must have been directed on the hypothesis, that, notwithstanding plaintiffs’ right of property and possession, and the wrongful taking and conversion of their goods by defendant’s sons, there was proof of such lawful possession in the defendant himself, as to render proof of demand and refusal indispensable to the maintenance of the action. The rule is well-settled that until demand and refusal, trover will not lie against an innocent bona-fide purchaser from a wrongdoer (Barrett v. Warren, 3 Hill, 348). But when the plaintiff’s title and an original tortious taking appear, the burthen is cast upon a purchaser to show that he is free from fault, and came to the possession of the property in a lawful manner, for a lawful purpose, and in perfect good faith. If he knew, or had any reason to suspect or believe that he was dealing with one who acquired the property unlawfully, he may then be treated as a wrongdoer, without any demand by the true owner (Pierce v. Van Dyck, 6 Hill, 613). His own protection from being held liable as a tortious taker depends upon his entire innocence and perfect good faith. His innocence and good faith being proved, he would be protected from such liability, and could not be charged in trespass de bonis asportatis, though he would still be liable to the true owner, in trover, or replevin in the detinet, after demand and refusal (Ely v. Ehle, 3 N. Y. 506). In this case, it clearly appeared that the defendant’s sons sold or assumed to sell to defendant, without color of authority or right, the plaintiffs’ property, together with other wood and merchandise, of which they were lawfully in possession, and which belonged to a firm .composed of themselves and the plaintiffs, in consideration of a pre-existing indebtedness of such firm. It further appeared that the firm was formed in December, 1871; that the logs and bolts in question had been previously purchased and paid for by the plaintiffs ; that in February, 1872, they were lying on the beach at Cedar Keys, in the actual or constructive possession of the plaintiffs ; that, in that month, they were specifically pointed out to the defendant by one of the plaintiffs as their separate property, and that a conversation then occurred as to the disposition the plaintiffs proposed to make of them. One of the plaintiffs testifies that, in that month, he was one day walking on the beach at Cedar Keys with the defendant, where the logs were piled, and that the defendant then asked him whose wood it was. Witness replied that it belonged to F. and J. Cormier, the plaintiffs. The defendant asked what they were going to do with it, and was informed that as soon as a cheap freight could be had, the plaintiffs would ship it to New York. The property was susceptible of easy recognition and identification. It was plainly marked or branded with certain marks and letters, burned in with a steel stamp, viz., “F. & J. C.” in a diamond, “ C.” in a diamond, and “A. H. M.” Prior to their partnership with defendant’s sons, the plaintiff had used the brand “F. & J. C.” in a diamond, for a long time. The marks were generally placed on two sides of the logs, sometimes on three sides, and sometimes on both ends. These logs, with the other wood so purchased by defendant from his sons, were loaded “by his direction and for his account,” on board the schooner Sarah Cullen, and were brought to New York, where they were seen, and at once recognized and identified as their property, by the plaintiffs, before her cargo was discharged from the schooner.

This evidence, wholly uncontradicted, was, in my judgment, sufficient to raise a legal presumption against the good faith of the defendant in purchasing these logs from his sons, and put upon him the bur-then of showing, if he could, that he did not recognize them as those pointed out to him by one of the plaintiffs at Cedar Keys, and did not know them to be the property of the plaintiffs ; or, he might have contradicted the testimony as to the whole conversation. But, uncontradicted and unexplained, the proof in regard to this conversation seems to me sufficient to raise the presumption, and to sustain a finding, of bad faith, and of notice, and of unlawful possession on the part of the defendant. The defendant’s points concede that if, at the time of the transfer and shipment, defendant had knowledge that the logs belonged to plaintiff, the action for tortious conversion can be maintained, and such is doubtless the law.

Again, a mere sale by a wrongdoer, without actual delivery, is insufficient to exonerate the purchaser from liability as a tortious taker. Trespass de bonis asportatis will.lie against the purchaser from a wrongdoer, who himself takes and removes the goods from the wrongdoer’s possession. In this case, as in that of Ely v. Ehle, above cited, there is no proof that the defendant’s sons ever did any other act in respect to the plaintiffs’ logs, which as we have seen, were piled up together on the beach, ready for shipment, than to enter into an illegal and unauthorized contract with defendant for their sale ; they did not deliver the logs to him, or, at least, there is no evidence of such delivery. The only testimony in regard to the transaction is that of one of defendant’s sons, to the effect that there was a sale to defendant, in May, 1872, of cedar wood, and goods in the store at Cedar Keys : and that such sale embraced these logs and bolts. In the case last cited, it was held, under like circumstances, that the6facts warranted the inference that defendant himself took and carried away the property, by virtue of his contract of sale, without any actual delivery being made, and that by taking and removing it, he became a trespasser, and that his taking was tortious, the vendor having no power to sell. There is no proof in this case, that the plaintiffs’ logs were ever moved or stirred, from the time when the defendant first examined them, in the presence of one of the plaintiffs, until they were taken and removed by the defendant. They were then actually or constructively in the possession of the plaintiffs, lying on the beach, ready for shipment. There they remained, so far as appears by the case, until they were seized upon and removed by defendant. The schooner on which they were placed was loaded by his direction, and for his account, and there is not a particle of evidence that the defendant’s sons ever touched the logs, or interfered with them in any way, except by wrongfully .assuming to contract for their sale. Except as affected by the contract, the situs of the property remained unchanged.

Under these circumstances, the defendant was himself a tortious taker, and liable to be proceeded against as such, irrespective of a demand upon him for the return of the goods.

If once liable as a tortious taker, the subsequent taking of the property by a receiver, appointed in a suit instituted by plaintiffs, and on their application and its restoration to defendant, by order of court on his giving security, did not exonerate him from such liability. Had he returned the property to plaintiff, his legal liability for damages would not have been discharged. The wrongful conversion is the gist of the action. “ If A. take the horse of B. and ride him, and after deliver him to B., yet may B. maintain trover against A., for the riding was a conversion, and the re-delivery will not bar the action, although it will go in mitigation of damages ” (Countess of Rutland’s Case, cited, 1 Rol. Abr. 5, L. 1; Brewster v. Siliman, 38 N. Y. 428). Had the defendant offered to return the goods, or tendered them, it was optional with the plaintiff to refuse or receive them, and he might have recovered their value.

The record offered in evidence by the plaintiffs and excluded by the court, shows a former adjudication by the supreme court, in a suit to which plaintiffs and defendant were parties, both with respect to the title of the property now in controversy, and with respect to the defendant’s innocence and good faith, in making the purchase from his sons, under which he here claims to have acquired lawful possession of the plaintiffs’ logs. Those logs were embraced in that purchase ; and the question of their ownership, and that of the defendant’s good faith, in making the purchase, were both litigated in that suit, and, as appears by the record, were both determined in it adversely to the defendant. The record was therefore competent and material evidence upon both of these points. It was insisted, on the argument,- that it was, at most, only competent as showing plaintiffs’ ownership, and that this was immaterial, as the fact had already been adequately proved, and had not been rebutted. But evidence is not immaterial because it is cumulative ; and I deem the question of defendant’s good faith, in making the purchase which he invokes to shield him from the imputation of having tortiously taken the plaintiffs’ property, of essential materiality. That purchase was adjudged by the supreme court to have been made in bad faith, and to have been wholly fraudulent and void against the plaintiff, both with respect to the partnership property, and to the separate property of the plaintiffs now in question. In his answer, in that suit, the defendant claimed as his own the whole cargo of the Sarah Cullen, and insisted that he had a right to hold and retain it. He insisted on the validity of all transfers made to him by his sons. The court adjudged the property now in suit to be the property of the plaintiff, and held, that the sale to the defendant in which it was embraced was fraudulently made, and with intent upon the part of the defendant and his sons to cheat and defraud the plaintiffs. Such an adjudication operates as an estoppel, and no principle has been suggested, upon which its inadmissibility, as evidence against the defendant, can be properly asserted.

The judgment should be reversed with costs.

Speir, J., concurred.


author: By the Court.— Monell, Ch. J.

text:
    MORTIMER PORTER, Plaintiff and Respondent, v. JOHN McGRATH, Defendant and Appellant.
    I. GENERAL TERM.
    1. FINDINGS OF FACT, RIGHT TO LOOK BEYOND.
    1. On appeal from a judgment rendered on a trial by the court or a referee, the general term, when the evidence is before it, has a right to look into the testimony, and to presume that in addition to the facts,- specifically found such other facts as are necessary to support the judgment, and as to which there is sufficient evidence to warrant their having been found, were also found. Stoddart v. Whitney (46 W. 7. 637) does not conflict with this ; for there the court was not furnished with the evidence.
    II. TRUST DEED.
    1. Conveyance of land in trust with a reversion to the grantor on the execution of the trusts.
    1. Power ot Grantor.
    (a) Has power to grant, assign, or devise his reversionary interest.
    3. Exercise of power by devise to the trustee in fee upon trusts effect of.

      (®) Mebges the whole legal estate in the person who is the trustee and devisee, subject only to the execution of the trust if it remains unexecuted.
    III. EJECTMENT.
    1. Title of Plaintiff.
    1. Grantee in trustee deed, and deviser in fee, upon trusts contained in the will of the grantor.

      (a) May maintain the action whether the trust in the trust deed be executed or not; no conveyance having been made by him.
    1. If not executed, he may maintain it under the trust deed ; if executed, under the devise.
    2. DEFENSE TO ACTION.
    Occupancy. That defendant is not the actual occupant is a sufficient defense.
    3. DEFENDANT, WHO TO BE.
    1. The actual occupant, if thebe is one.
    1. Who is actual occupant.

      (a) Husband and wife. Where they both live on the premises which have been conveyed to the wife, who paid the consideration out of her own money, and which have also been leased to her for a term of years, the wife, since the act of 1849, is the actual occupant, and the proper party defendant,

    UNLESS,
    1. She has made the husband her tenant, or has put him in actual and exclusive possession, or has created a joint occupancy in him and herself.
    (®) The bare fact of their residing together in the dwelling does not make him either sole or joint occupant.
    2. Occupancy, estoppel by pleading against denying.
    1. Semble, where the defendant after a general denial claims to 'hold under an unpaid mortgage, and alleges that his possession is under that mortgage, and not otherwise, he is estopped from denying that he is the actual occupant.
    3. Occupancy by defendant, what sufficient pboof of. Such statement in the answer, in connection with defendant’s declaration made before suit brought, that he was the occupant, and proof, introduced to contradict a witness who had testified that she was the occupant, to the effect that before suit brought she had declared the defendant to be the occupant, is sufficient.

      Before Monell, Ch. J., and Sedgwick, J.

      Decided April 3, 1870.
    4. POSSESSION OF PLAINTIFF.
    1. Presumption of.

      (a) When he shows the legal title in himself, and no adverse possession of twenty years is shown, he is presumed to have been in possession within the time required by law.
    5. DEFENSE TO ACTION.
    1. Lease by assignee of unpaid mortgage.

      (a) Possession under, is a complete defense.
    But not
    if the lease was executed if ore the assignment of the mortgage to the lessor.

      Relation batik. The assignment will not relate bach so as to make the letting an act of possession under the mortgage.
    IV. EVIDENCE.
    1. Parol, as to written instrument for what purpose admissible.

      (a) Instrument not required to be under seal.
    1. By whom made. Although by the body of the instrument and the signature to it, it appears to be the instrument of A., it may be shown by parol that A. was acting as the agent of B., and that the instrument is in fact B.’s.
    Appeal from a judgment.
    The action was to recover the possession of real property, and was tried by the court without a jury.
    The following are the facts found, and the conclusions of law:
    In 1836, one Samuel A. Porter was seized in fee of the premises. In that year Porter mortgaged the premises to Ellis Potter and McGrown. In August, 1840, Porter conveyed the premises in fee to the plaintiff. In September, 1842, Potter and McGrown assigned their mortgage to one Van Voorhies, who in 1872 assigned it to Mary N. Townshend. The mortgage was never paid by Porter. He made a small payment in 1842.

      In October, 1865, one Chandler took possession of the premises as vacant lots, and erected a dwelling-house thereon ; prior to which time the premises were unoccupied.
    In the same year, Chandler conveyed the premises in fee to Ann McGrath, the wife of the defendant, who paid the consideration out of her own money. John Townshend testified on the trial that at the time of the lease of the premises to Ann McGrath, Mrs. Townshend claimed to own the same.
    On October 5, 1865, John Townshend gave Ann McGrath a lease of the premises for a term of ten years from ¡November 1, 1865. The precise finding of the judge was, that the lease to Ann McGrath was executed by and in the name of John Townshend, and that John Townshend testified on the trial that he made the lease as the attorney and agent of Mary ¡N. Townshend.
    In respect to the possession of the premises, the judge found as follows:
    That on or about October 5, 1865, the defendant entered into the occupation of the premises in suit, and has ever since occupied the same. That ever since the making and delivery of the lease to Ann McGrath, she has paid.the rent for the said premises pursuant to the terms of the lease.
    That prior to the commencement of the action, a.nd having in view the commencement of the same, the plaintiff had an interview with the defendant, and his wife, Ann McGrath, on the premises, and that in such interview the defendant and his said wife, both informed the plaintiff that defendant occupied the premises in suit; that he had purchased the house from the person who had put it up; and that he paid rent to Mr. Townshend for the lots, but plaintiff did not inform them of his object in making such inquiries.
    The conclusions of law were as follows :

      That at the time of the commencement of the action, the plaintiff was the owner in fee of the premises in suit.
    That at the time of the commencement of the action, the premises were “ actually occupied ” by the defendant, and he was the “actual occupant” thereof.
    That at the time of the commencement of the action, the defendant unlawfully withheld possession of the premises from the plaintiff.
    That the plaintiff is entitled to judgment for possession of the premises described in the complaint.
    Upon the trial, the deed from Samuel A. Porter to the plaintiff was read in evidence. It conveyed the premises in fee, but upon the trust to sell, and out of the proceeds to pay certain specified debts of the grantor, &c., and to pay over the residue, if any, to the grantor, his heirs, &c.
    The plaintiff also proved the will of Samuel A. Porter, made in 1840, by which he devised, &c., his estate to his executors in fee upon certain trusts. The plaintiff was named as one of the executors, and was the only executor who qualified.
    Ann McGrath testified that she bought the premises offChandler, and paid for them with her own money ; and that she afterwards took a lease from Townshend. That the defendant lived with her as a part of the family, but not as her tenant.
    The plaintiff testified that he went to the premises in November, 3 871, and saw Mrs. McGrath. The defendant was not present.
    Any conversation between the witness and Ann McGrath, not in the presence of the defendant, was objected to. The objection was overruled, and the defendant excepted.
    The plaintiff testified : I asked Mrs. McGrath who occupied the premises,—whose house it was; she told me John McGrath, her husband ; she said they had the»whole premises down to the Second Avenue. Afterwards I saw the defendant, and asked him if he occupied the premises, and he said he did ; that he had purchased the house from the person who had put it up, and that he paid rent to Mr. Townshend.
    The defendant’s counsel requested the judge to find as a fact, that at the time of the lease from John Townshend to Ann McGrath, Mary H. Townshend claimed to own the premises ; and also that said John Townshend executed the said lease as the attorney and agent of Mary H. Townshend.
    The defendant filed exceptions to the findings, fact, and conclusions of law, and appealed from the judgment entered upon the decision of the court

      John Townshend, attorney, and of counsel for appellant, urged:
    The appellant’s points are: 1. Ho title in plaintiff. 2. Defendant not the proper person to be sued. 3. Defendant, if the proper person to be sued, was in occupation under a mortgage in possession. I. At the time of making his will, S. A. Porter had no estate or interest in these premises which he could devise, and consequently the plaintiff took no interest under the will (Briggs v. Davis, 21 N. Y. 574 ; Wallack v. Van Reswick, 13 Alb. Law Jour. 44). (a) Besides which, the will does not empower the trustees to receive the rents and profits, and, therefore, they had a power only, and not a legal estate (1 R. S. 729, §56). (5) The judge at the trial apparently took this view, as he does not in his findings say anything concerning the will.
    II. Whatever estate and interest plaintiff took under the trust deed, terminated before the end of the trial in this action. The deed was made in August, 1840, and after twenty years, that is, after August, 1860, the debts were all presumed to be satisfied, and the trust estate reverted to the heirs of the grantor, S. A. Porter.(a) “But after twenty years the law presumes the debts paid, and the trust executed, so far as respects creditors ” (Burrill on Assignments, 551, 2d ed. ; Ingraham v. Cox, Select Eq. Cases [Pa.] 70 ; Coates Estate, 2 Id. 258, 263 ; McKnight v. Taylor, 17 Peters, 197 : Grant v. Duane, 9 Johns. 612). (b) The purposes for which the trust was created having ceased, the estate of the trustee also ceased (1 R. S. 730, § 67). (c) If the provisions of the Revised Statutes lastly referred to did not cover the case, the amendment to that section certainly did (Laws 1875, ch. 545, took- effect June 27, 1875). (d) As that law took effect before the decision, it applies to this case (Curtis v. Leavitt, 17 Barb. 311; 15 N. Y. 13-85; where as in this case the law passed after the proofs were closed), (e) A plea puis darrien continuance could be interposed at any time before verdict (2 Dunlap’s Prac. 624). (/) The law provides for the expiration of a plaintiff’s right before verdict (2 R. S. 308, § 31).
    III. John McGrath was not the proper party defendant. The premises were “actually occupied,” and in such case the “actual occupant” shall be “ named defendant ” (2 R. S. 304, § 4; People v. Ambrecht, 11 Abb. 97; Lucas v. Johnson, 8 Barb. 248; 2 R. S. 204, § 7; Id. 307, § 30, subd. 3; Id. 308, § 34; Id. 310, § 43 ; Id. 311, § 50.)
    IY. A married woman may hold and occupy real estate as her own separate property. In the exercise of this right it may happen that she will wrongfully withhold real estate. If she does so either by accident or design, it is her own act, and one which the husband can not control (Peak v. Lemon, 1 Lans. 302, Lamont, J.).
    Y. The fact that the defendant resided on the premises with his wife as part of her family, does not change the case. Where husband and wife live on premises, the separate property of the wife, the former is not in legal presumption so in control thereof as to be lia: ble for injuries sustained by negligence in the use thereof, as by leaving an uncovered pit thereon (Fiske v. Bailey, 51 N. Y. 150 ; Allen v. Cowan, 23 Id. 505 ; Rowe v. Smith, 45 Id. 230 ; Minier v. Minier, 4 Lans. 421). (a) The case of Snyder v. The People (26 Mich. 106) is consistent with this view (Shepperd v. The People, 19 N. Y. 543; Nat. Fire Ins. v. McKay, 5 Abb. N. S. 449). (c) There can be no estoppel by reason of anything said by the defendant to plaintiff, concerning the occupancy, because it does not appear that plaintiff informed defendant of his reasons for making the inquiry (Herman on Estoppel, 347, 339 ; Bigelow on Estoppel, 533).
    VI. The finding of fact that defendant was the occupant, was not warranted by the evidence, is contrary to the evidence, and is erroneous. It was excepted to. If warranted is not equivalent to finding that defendant was the “actual occupant.”
    VII. The court erred in allowing plaintiff to give his conversation had with Ann McGrath in defendant’s absence.
    VIII. The testimony that the lease to McGrath, was made by John Townshend as the attorney and agent of Mary N. Townshend, is in the case. It was properly admitted (Greenleaf' s Ev. § 279, 281; Taylor' s Ev. § 1051, 1054; Jackson v. Sternberg, 1 Johns. 153; Ide v. Sadler, 18 Barb. 34; Overseers of Berlen v. Norwich, 10 Johns. 229 ; Vanneman v. Powers, 56 N. Y. 42; Ford v. Williams, 21 How. U. S. 289; Noyes v. Phillipps, 16 Abb. N. S. 400; Gates v. Brower, 9 N. Y. 205; Sickles v. Gillies, 35 N. Y. Sup. Ct. 14 ; Herman on Estoppel, p. 229; Britton v. Lorenz, 45 N. Y. 54 ; Barry v. Ransom, 12 Id. 464 ; Russell v. Erwin, 41 Ala. 292 ; McArthur v. Soule, 12 N. Y Supreme Court, 67; Indianapolis R. R. v. Tyng, 13 Alb. L. J. 101).

      . IX. It is not necessary to the validity of a contract required by the statute to be in writing, that the writing should disclose the principal. The signature of the agent is sufficient (Dykers v. Townsend, 24 N. Y. 59; Ford v. Williams, 21 How. U. S. 289).
    X. A principal may always sue in his own name upon a contract in writing made by his agent, without disclosing the name of the principal (Tainter v. Prendergast, 3 Hill, 72; Noyes v. Phillips, 16 Abb. N. S. 400; Union Rubber Co. v. Tomlinson, 1 E. D. Smith, 364 ; Brush v. Cole, 28 N. Y. 261; Schmaltz v. Avery, 16 Q. B. 655 ; Addison on Contracts, 600, 6 Eng. Ed.).

    XI. So on such a contract the principal may be sued (Coleman v. First National Bank of Elmira, 53 N. Y. 393); unless it can be shown the other contracting party intended to look solely to the agent.
    XII. But in such a case, the agent is personally liable, and if sued, is not permitted to give evidence of agency. Proof of agency is not permissible on the principle of estoppel (Chappel v. Dunn, 21 Barb. 17 ; Lincoln v. Crandall, 21 Wend. 101; Babbitt v. Young, 51 Barb. 473 ; Beebe v. Roberts, 12 Wend. 413).
    XIII. If the agent describes himself as owner, the principal cannot sue (Humble v. Hunter, 12 Q. B. 310).
    XIV. The cases cited under points X. to XIII. as cases of contracts, are many of them cases of charter-party, but they apply equally as well to the case of a lease (Gram v. Seton, 1 Hall, 291).
    XV. At common law, a lease for more than a year was good by parol, and since the Revised Statutes, such a lease is good if in writing without a seal, and signed either by the lessor or his agent (Rickert v. Snyder, 9 Wend. 416; 2 R. S. 135, §§ 6, 8, 9).
    XVI. As the lease would have been good if made without seal, the fact of its being sealed makes no difference as regards the question of establishing agency (Lawrence v. Taylor, 5 Hill, 113 ; Everett v. Strong, 5
      Id. 163 ; affirmed 7 Id. 585; Worrall v. Munn, 1 Selden, 242, citing many cases, and overruling on this point, Blood v. Goodrich, 12 Wend. 527 ; Hanford v. McNair, 9 Id. 54; see also Wood v. Auburn R. R., 8 N. Y. 160; Van Ostrand v. Reed, 1 Wend. 424; Dean v. Roesler, 1 Hilton, 420 ; Commercial Bank v. Warren, 15 N. Y. 57 ; Farmers’ Loan Co. v. Walworth, 1 Id. 433). A stranger can not impeach a contract, on the ground that the agent has exceeded his authority. The contract is not void for that reason. It may be the principal has ratified it (Jackson v. Van Dalfsen, 5 Johns. 43 ; Beals v. Allen, 18 Id. 363; White v. Skinner, 13 Id. 307).
    XVII. Conceding that no authority to make the lease was shown, that the lease was void for that cause, and that plaintiff can raise the question, what results ? Simply that Ann McGrath became tenant of Mary N. Townshend from year to year instead of for ten years (Parcell v. Potter, Anthon N. P. 310 ; Porter v. Bleiler, 17 Barb. 149; 1 Platt on Leases, 391, 392).
    XVIII. This case differs materially from the case of an attempt to enforce the lease in favor of or against a party not named in it. Such an action, of course, could only be upheld by making the lease the act of the party not named (Purcell v. Potter, Anth. N. P. 310).
    XIX. It being shown that the lease by John Townshend tó Ann McGrath, was on behalf of Mary N. Townshend, Ann McGrath was really the tenant of Mary N. Townshend. The premises were occupied under the permission of Mary N. Townshend, and she was the assignee of the unpaid mortgage. The possession of McGrath was the possession of Mary N. Townshend; she was mortgagee in possession, and ejectment does not lie against a mortgagee in possession (Murray v. Walker, 31 N. Y. 399; Chase v. Peck, 21 Id. 581; Hubbell v. Sibley, 50 Id. 468). (a) Assignee of a mortgagee who is in possession can not be ejected by mortgagor (Jackson v. Bowen, 7 Cow. 13 ; Jackson v. Winkler, 10 Johns. 480). (5) After a mortgagee or his assignee has lawfully obtained possession, he may retain it until the debt secured by the mortgage has been paid . . . after possession he has the property pledged as his security, the title remaining as it was before (Trimm v. Marsh, 54 N. Y. 599; Wells v. Pierce, 4 Abb. Ct. of App. Cases, 559). (d) The only remedy of the mortgagor was by suit to redeem (Hubbell v. Moulson, 53 N. Y. 225.) (e) The statute of limitations does not pay a debt, it merely bars the remedy. The moral obligation to pay always remains (Johnson v. Alb. & Sus. R. R. Co., 54 N. Y. 417).

      Alexander Thain, attorney, and of counsel for respondent, urged :
    I. The plaintiff had shown a right of possession at the time of the commencement of the action, under the conveyance and under the will, and the title of Samuel A. Porter, through whom he claimed, having been conceded, the motion to dismiss was properly denied (2 R. S. title 3, part 3, chap. 5, sec. 25 ; Chapman v. Del. Lack. W. R. R. Co., 3 Lans. 261). The plaintiff, having shown legal title in himself, is presumed to have been possessed within the time required by law, no adverse possession for twenty years, or for any time, having been shown (Code, § 81).
    II. The will of Samuel A. Porter vested the legal title of his entire estate in his executors, and the plaintiff being the only one that qualified, took the sole legal title.
    III. Samuel A. Porter had an interest in the premises in question which passed to the plaintiff as his executor (3 R. S. 5th ed. p. 21, §§ 79, 80).

      IV. Assuming that plaintiff’s title as assignee ceased in 1860 by reason of the presumption that the purposes for which the estate was created had also ceased, then if our reasoning under the second point be sound, the legal estate vested in him under and by virtpe of the will, and he sustained his title on production of the will. It is a familiar principle that if the judgment of a court be right it will not be reversed, although the court erred in not stating the proper grounds for its decision ; and assuming it was error for the court not to have placed plaintiff’s right to possession under the will, the judgment should not be reversed for that reason, as the evidence as to the will was before the court below, and is also before this court, uncontradicted, and without objection by the defense. The findings may be modified, and the judgment affirmed (Casler v. Shipman, 35 N. Y. 533). It affects no substantial right of the appellant (Code, § 126).
    V. The defendant was in possession. Plaintiff testified as to an interview had with Mrs. McGrath, at which she stated that the property was occupied by her husband, and also as to another interview had with defendant and his wife, in which they both said that defendant was in possession. Beither defendant nor his wife attempted to contradict this, and since, by asserting the fact, they induced the plaintiff to bring his action against the defendant as the party in possession, they are estopped now from denying it (Tyler on Ejectment, 472, 473; Goshan v. Brown, 2 Doe, 174). It was not claimed or pretended that Mrs. McGrath was carrying on any business which required die use of this property, but the fact does appear that io was used as the residence of the family, and the law therefore presumes it was the dwelling of the husband and in his possession as head of the family (Snyder v. The People, 26 Mich. 106 ; Same case, 12 Am.

      R. 302). Such legal title as passed from Mr. Townshend may have vested in Mrs. McGrrath, and yet the actual possession of the property be held by defendant (Churchill v. Onderdonk, 59 N. Y. 134 ; Fiske v. Bailey, 51 Id. 150).
    VI. The possession was unlawful. Assuming that the lease from John Townshend to Mrs. McGrrath was the authority under which defendant held, it was executed by a party making no claim of title whatever. The court disregarded the lease from John Townshend to Mrs. McGrrath, the defendant having expressly disclaimed any right of possession save under the mortgage, and has also disregarded the evidence of Townshend that in making the lease he acted as agent for his wife ; and that his wife claimed an interest in the property anterior to her rights under the mortgage. The only competent evidence of either authority to lease for more than one year, or a conveyance to Mrs. Townshend, being written instruments (Squier v. Norris, 1 Lans. 282; Babbitt v. Young, 51 Barb. 466 ; 3 R. S. 5th ed. 220, § 6).
    VII. There was no right to hold under the mortgage shown. Defendant went into possession about October, 1865; whereas, Mrs. Townshend had no interest in the mortgage under which the defendant claimed his sole right of possession until December, 1872. There was no evidence of attornment on the part of either defendant or his wife to Mrs. Townshend after she acquired the mortgage, or in fact of attornment to her at any time, or recognition of her in any way, and no evidence that Mrs. Townshend, or her assignor, ever had possession of the property in question, or put any one in possession, or that there was any privity of contract between her and defendant, or that defendant .or his wife knew that such a person existed ; the only evidence in the case being that Chandler, who had possession, turned the same over to defendant, showing that defendant acquired possession under neither the lease nor the mortgage. To allow Townshend’s statement as to the position he occupied in making the lease to have any weight, would be leaving the matter a shuttlecock between himself and wife, to be used either way a.s interest demanded.
    "VIII. The court committed no error in allowing plaintiff to testify as to the conversation with Mrs. McGrath had in defendant’s absence. It wen t to show that she had made statements as to who occupied the property inconsistent with her testimony ; and in contradiction of her, after her attention had been called to the interview, and she had denied saying anything about the place.
   By the Court.— Monell, Ch. J.

The only fact found by the court to support the plaintiff’s title, is the trust deed executed in August, 1840. No finding was made in respect to the will of the grantor, executed in the same year devising the premises to the plaintiff.

It may be doubtful whether the plaintiff’s title can be sustained under the deed alone. A presumption of the execution and satisfaction of the trust, arising from lapse of time (Doe v. Staple, 2 T. R. 684 ; Laws 1875, chap. 545) would under the statute (1 R. S. 730, § 67) terminate the estate of the trustee, and reinvest it in the grantor, his heirs, and assigns. It does not appear that the plaintiff ever took or was in possession of the premises, either under the trust deed or otherwise ; and more than thirty years have elapsed since the deed was delivered. This would be sufficient to raise the presumption that the purposes of the trust have been executed ; and by operation of law the estate would revert to the grantor.

It is not, however, necessary, I think, to determine that question, as the plaintiff’s title can be upheld in another way.

The will of Samuel A. Porter, which took effect in 1841, devising his estate to the plaintiff, was received in evidence without objection ; and if we are permitted to look beyond the findings for evidence to sustain the judgment, the will is sufficient for the purpose.

In Chubbuck v. Vernam (42 N. Y. 432) the court says, “ A party seeking to uphold the report of a referee is entitled to the benefit, not only of the facts actually found by the referee ; but also, if necessary to sustain the conclusions of law found by the referee, to all such facts as the evidence tended to prove, and as the referee might have found in his favor.” In that case the court was not furnished with the evidence, and so far as it holds that' in such a case it was proper •to assume that there was evidence sufficient to sustain the finding of fact, it has been overruled by Stoddard v. Whiting (46 N. Y. 627).

But the last case does not interfere with the main proposition, that where the evidence is before the court it maybe looked at and used to support the conclusions of law.

However the rule may possibly be in respect to the powers of the court of appeals where the decisions cited were made, it is clear that this court at general term is not restricted to the facts as found below, but may look at all the evidence furnished in the case. This was in effect, I think, so held in Valentine v. Conner (40 N. Y. 248) where the court say (p. 252) “ that court—i. e., the general term—were not restricted to the facts found, but were authorized to examine the testimony, and reverse on the ground that it did not sustain those facts.” If the evidence can be resorted to to reverse, a fortiori, it should be resorted to to sustain a judgment.

Judge Grover, in a concurring opinion, in the case last cited, says, “It has been repeatedly held by that court that it will be presumed in support of the judgment of the referee, that he found such facts, in addition to those specified in his report, as essential to sustain the judgment, provided there was evidence given to warrant the finding of such additional facts.”

Looking, therefore, into the evidence, as I think we have a right to, we find that by the will of Samuel A. Porter, which took effect some five years after the date and delivery of the trust deed, he devised to the plaintiff all the interest in the premises that remained in the testator. The deed had conveyed the premises upon certain trusts, with a reversion to the grantor upon the execution of the trusts. Such reversionary interest passed to the plaintiff under the will, and merged the whole estate in him. The statute provides (1 R. S. 729, § 61) that a conveyance in trust shall not prevent the granting or devising the same lands, subject to the execution of the trust. And the grantee or devisee shall have a legal estate in the lands as against all persons, except the trustee and those lawfully claiming under him. Here, the trustee and devisee being the same person, the devise was of the whole legal estate to the plaintiff, subject only to the execution of the trust, if it remained unexecuted.

If, therefore, as has been suggested, the purposes of the trust are to be presumed to have been executed, then the devise took effect, and the legal estate was vested in the plaintiff under the will, discharged of the trust estate.

In the event, therefore, of the failure of the plaintiff’s title under the trust deed, he is amply fortified under the devise ; and the undisputed fact of the will, as proved, will sustain the conclusion of law, that at the time of the commencement of the action the plaintiff was the owner in fee of the premises.

It is objected by the defendant that the action is not properly brought against him, he not being the actual occupant; that it should have been brought against Ann McGrath, his wife.

The statute provides that if the premises are “ actually occupied,” such “actual occupant” shall be named as defendant.

The fact, as found by the court, is, that in “October, 1865, the defendant entered into the occupation of the premises, and ever since ^occupied the same.” And as a conclusion of law, “ that the premises were ‘ actually occupied ’ by the defendant, and he was the ‘actual occupant’ thereof.”

The evidence establishes these facts :

That prior to the delivery of the trust deed, Porter mortgaged the premises to Potter and McGown. In 1842 they assigned the mortgage to one Yoorhies, who in 1872 assigned it to Mary bT. Townshend. In 1865 one Chandler took possession of the premises, they being then vacant and unoccupied, and erected a dwelling-house ; and in the same year conveyed to Ann McGrath, the defendant’s wife, in fee, who paid the consideration out of her own money. At about the same time, John Townshend, the husband of Mary bT. Townshend, leased in his own name, but as he testified, as the agent of his wife, the premises to Ann McGrath, for a term of years. Ann McGrath and her husband, the defendant, lived together in the house on the premises.

The conveyance and lease to Ann McGrath, if they established any title, established it in her, and not in her husband. Under the laws of this State she could take and hold real or personal property as her separate estate, and is entitled to its rents, issues, and profits (Laws 1849, chap. 375).

Ann McGrath, therefore, was at the commencement of the action in possession under color of title, claiming to be the owner, and was the proper party to be made defendant, unless the joint occupancy with her husband, or the marital relation, made him the “ actual occupant” within the meaning and intent of the statute ; and that would be a good defense, unless the defendant by his acts and declarations is estopped from claiming that he was not in actual possession. Upou no other principle can the finding of the learned judge be sustained.

The action is to recover possession, and hence the necessity of proceeding against the person in the actual possession, against whom alone the writ of possession would be effectual. And as the occupant is liable for the rents and profits, the defendant had a right to defend, on the ground that he was not the actual occupant, and not liable for the rents and profits.

The right of a married woman to hold real property draws to it the right of possession, as in other cases, and she can hold both the title and the possession, and the rents and the profits, as her separate estate. She could have made her husband her tenant, or she could have put him in actual and exclusive possession, or she might have created a joint occupancy with herself. Bat either of these several relations would have to be established ; otherwise she, holding the legal title and being actually upon the premises, is to be presumed to be in the actual occupation.

The mere fact that McGrath resided in the dwelling-house with his wife, did not of itself, necessarily, make him, in contemplation of law, either the sole occupant, or a joint occupant with her. She might lawfully and properly permit him to reside there, without parting with her estate, or with her right to the rents and profits ; and without giving up her own occupancy. And if there was no conventional relation between the defendant and his wife which would give him the right to hold possession, then his mere marital relations would not be sufficient to make him the actual occupant within the meaning of the statute.

Shaver v. McGraw (12 Wend. 558) illustrates the meaning of the statute as to actual occupancy. The defendant was found working on a farm, there being no other occupant. But it appeared that he was hired by the person claiming ownership, and the court say, the possession by a servant claiming no beneficial interest, was not an actual occupancy by him.

The complete-disseverance of husband and wife, in respect to her separate estate, and his former common law right over if, is indicated in the following cases :

In Allen v. Cowan (23 N. Y. 502), it is held that the wife’s personal property in a house occupied by the husband and wife, is to be deemed in the possession of the wife.

In Rowe v. Smith (45 N. Y. 230), the husband and wife resided together upon the wife’s land, the horses, cattle, and other personal property, being used in connection with the real estate for the support of the family. The action was against the wife for a trespass by the cattle, and she claimed that her husband and not herself was liable. But the court held that the action would lie against her by force of the statute, separating her estate and all its incidents from her husband.

In Fiske v. Bailey (51 N. Y. 150), the action was against the husband, and the case was decided upon the admissions in the answer. But the court say that a husband and wife domiciled upon the separate property of the wife does not, of itself, give him any legal control over the premises, nor render him liable for injuries caused by negligently leaving a pit open.

A married woman may also maintain actions in • respect to her separate estate, and may even bring one against her husband to recover possession of her real property (Minier v. Minier, 4 Lans. 421).

A case in Michigan (Snyder v. The People, 26 Mich. 106 ; S. C., 12 Am. R. 302) is claimed to establish the unity of possession by husband and wife. The husband and wife resided together in the wife’s dwelling-house. Upon an indictment of the husband for arson in burning his wife’s house, it was held that although the property was hers alone, the residence was equally his—the estate was in her, but the dwelling-house, the domus, was in both. The crime of arson by the statute of Michigan is the burning the dwelling of another. So that no conviction under that statute can be had, if the person charged was dwelling in the building, even though the dwelling therein was wrongful. It was enough, therefore, for that case, that the defendant was, when he committed the act, dwelling in the house. But the court says he was rightfully there. How, it does not appear, as the statute in respect to the rights of married women is not stated in the report of the case.

I have examined this question with some care, not that it was necessary to the decision of the case, which, as will be seen, turns upon another and different point, but because of its important bearing upon the construction of the married woman’s act; and for the purpose of illustrating its effect upon the respective rights of husband and wife in respect to the separate estate of the latter, and my conclusion is, that the evidence in this case establishes such an actual occupancy of the premises by Ann McGrath, as would defeat a recovery, if the defendant had not estopped himself by his own acts and declarations.

The complaint alleges that the defendant is in possession, and unlawfully withholds the same from the plaintiff. The defendant, after a general denial and setting upon several defenses, claims to hold under the mortgage to Potter and McGown, which he claims is unpaid, and then avers that “the said supposed possession of the premises by the defendant in the complaint alleged, is a possession by virtue of and under color and authority of “that mortgage,” and not otherwise.

This admission by the defendant of a possession under an adverse title, is enough, it seems to me, to close the door against him, and, taken by itself, is enough to answer the statute. But when taken in connection with his declarations proved on the trial, and the admissions of Ann McGrath, the finding of the court that John McGrath was the actual occupant is fully sustained.

In Fiske v. Bailey (ubi sup.) the action was for injuries caused by falling into an open pit upon the land of the defendant’s wife, upon which they resided ; and to the allegation that he was the “keeper of a public house” thereon, he by his answer denied that he was the keeper of a public house, and the court held that the defendant was concluded by his admission upon the record, and that he could not avail himself of the fact that his wife was the owner of the land, and therefore she and not himself was liable for the injury complained of.

The objection to Ann McGrath’s declarations was, that it was proving a conversation in the absence of her husband. But the object was to contradict her evidence at the trial, after a sufficient foundation had been laid. For that purpose the evidence was proper.

The plaintiff, having shown a legal title in himself, is presumed to have been in possession within the time required by law, no adverse possession for twenty years having been shown (Code, § 81).

The actual possession which the defendant claims to have, commenced only as far back as the year 1865, or, as Chandler, who took possession of the vacant lots, testified,- in 1867, and does not therefore establish an adverse possession ; and the possession under color of title goes no farther back.

One of the other defenses is, that the defendant is in possession under Mary N. Townshend, who claims under the Potter' and McGown mortgage.

As that mortgage was older than the plaintiff’s title, and was proven to have been unpaid, a possession under it would be a defense to the plaintiff’s action. An action of ejectment can not be maintained against a mortgagee in possession (Van Duyne v. Thayre, 14 Wend. 233 ; Phyfe v. Riley, 15 Id. 248 ; Randall v. Raab, 2 Abb. 307 ; St. John v. Bumpstead, 17 Barb. 100).

By regular assignments the mortgage was transferred, and came into the possession and ownership of Mary E. Townshend, under whom it is now claimed the defendant holds.

In examining the question now under consideration, it may be assumed that the defendant holds in some way under Ann McGrath, his wife, who is alleged to be the tenant of Mary E. Townshend.

The proof shows that in October, 1865, a lease of the premises for ten years was executed between John Townshend of the first part, and Ann McGrath of the second part. The lease was not under seal. And the tenant has continued to pay rent during the intervening time.

To connect Ann McGrath with the Potter and McGown mortgage, and to make her possession a possession under it, John Townshend testified that the lease to Ann McGrath was made by him “as the attorney and agent of Mary E. Townshend,” who, he says, at that time claimed to own the lots.

But the McGrath lease was in 1865, and the assignment of the Potter and McGown mortgage to Mrs. ■ Townshend was not until December 17, 1872. And it does not appear that prior to the last date, Mrs. Townshend had any title to or interest in the premises. A mere verbal claim of title would not be sufficient, unless accompanied by some act of ownership. Ho adverse possession unless for twenty years could be founded upon it, and even a possession under such a claim would be that of a mere squatter.

The court did not find as a fact that John Townshend, in executing the lease, acted as the attorney and agent of Mrs. Townshend ; or thát she at the time claimed to own the lots. The finding is that he so testified.

It is, however, sufficient to give the defendant the benefit of the fact.

It was competent, I think, for the defendant to show by parol, that a lease, not under seal, executed in his own name as lessor, was in fact the lease of Mrs. Townshend, he acting as her attorney and agent. The following cases sustain such a proposition : Lynde v. Staats, 1 N. Y. Leg. Obs. 89 ; Union Rubber Co. v. Tomlinson, 1 E. D. Smith, 365; Ide v. Sadler, 18 Barb. 32 ; Briggs v. Partridge, 39 Sup. Ct. R. 339.

The difficulty in giving the defendant any benefit from the evidence, however, is, that even if it was the lease of Mrs. Townshend, the possession under it was not a possession under the Potter and McG-own mortgage. The assignment to her was long after-, wards, and does not relate back, so as to make the letting by her an act of possession under the mortgage.

Besides, the action is not against Mrs. Townshend’s tenant; and the defendant made no claim on the trial that he held under such tenant. He denied holding at all, and insisted he was not in the actual possession of the premises.

Upon the whole, the defendant failed to make out any defense, and the judgment for. the plaintiff was correct.

Judgment affirmed.

Sedgwick, J., concurred.