author: By the Court—Robertson, J. Hoffman, J., Bosworth, Ch. J.

text:
    The Parker Mills, Plaintiff and Appellant, v. Edward H. Jacot and James C. Willett, Sheriff, &c., Defendants and Respondents.
    L. Under the act of Congress of July 29, 1850, (U. S. Statutes at Large, vol. 9, p. 440,) a bill of sale, or conveyance of a vessel, is void as against an execution creditor of the vendor, unless the bill of sale or conveyance be recorded in the office of the Collector of the Customs where such vessel is registered or enrolled, or unless such creditor, at the time of levying his execution, have actual notice of such bill of sale or conveyance.
    2. In a suit b3r the vendee against such creditor and the officer levying the execution, to recover possession of the vessel, a nonsuit is.proper where actual notice, to the vendee and sheriff, of the bill of sale is not proved, and the evidence given is not sufficient to justify a jury in finding the fact of actual notice.
    3. It is not enough that they have knowledge of circumstances calculated to lead to inquiry, if, with the inquiry made, the facts do not .convey actual notice of the bill of sale or conveyance.
    (Before Bosworth, Oh. J., and Hoffman and Robertson, J. J.)
    Heard, December 12, 1860;
    decided, April 20, 1861.
    Appeal by the plaintiffs from an order denying a motion for a new trial. This action was brought by the Parker Mills, a Massachusetts corporation, against Edward H. Jacot, a judgment and execution creditor of one Edgar Sprague, and also against James 0. Willett, Sheriff of the city and county of Few York, to recover the possession of a certain schooner called the Ann S. Salter, and damages for the detention.
    . It was tried before his Honor Justice Mohceiee and á jury, on the 7th of Fovember, 1859.
    The defendants justified the taking under a judgment and execution in favor of Jacot against Edgar Sprague, who, they alleged, was the owner.
    It appeared by the evidence that Sprague was the owner of the vessel on the 9th day of March, 1857, on which day he assigned it, with other property, to Thomas Collier and Elijah S. Robinson.
    The assignment after reciting Sprague’s indebtedness to the plaintiffs in the sum of $71,000 or thereabouts, which he was unable to pay at that time, and his desire of providing for the payment thereof by an assignment of part of his property for that purpose, (also his having it in contemplation to make a general assignment of all his property and effects for the benefit of his creditors at large,) assigned this schooner in trust to sell the same, and after paying expenses, to pay and discharge all the indebtedness of said Sprague to the plaintiffs, and if thereafter there should be a surplus remaining, then to pay over and return the same to the said party of the first part, or in case of his making the contemplated general assignment, then to account for, and make payment of such, surplus to the assignees named in such assignment.
    On the 27th of April, 1857, Sprague conveyed the vessel by bill of sale, to Haham Stetson, the Treasurer of the plaintiffs and for their benefit in consideration of $6,000. This was testified to be more than the value of the vessel.
    It appears Sprague did, on or before the 26th September, make a general assignment.
    The execution under the judgment of Jacot, was issued December 5, 1857; the judgment was recovered June 27, 1857. The plaintiffs were then in possession .under the bill of sale.
    The evidence of actual notice to the defendants, at the time of the levy upon and talcing of the schooner, of the conveyance thereof to the plaintiffs, is as follows, viz.:
    Thomas Collier, one of said assignees, testified, (among other things,) thus: “The schooner Ann 8. Salter came to the possession of the assignees on the 9th day of March, 1857; the assignees sold the vessel to the plaintiffs; it was a verbal sale, made on the 24th day of March, 1857, for the price of $6,000; after the parol agreement we executed a bill of sale; at the time of the sale to The Parker Mills the vessel was at Hew Orleans; she came into Hew York about the middle of April on account of a necessity; she then proceeded to her place of destination at Portsmouth.”
    Edward 0. Delavau, testified as follows: “In the month of September, 1857, between the 15th and 26th, witness, as attorney for the plaintiffs, went to Hewark, and there saw the Sheriff of the county in which that town is located. Between the 20th and 25th of said September, witness saw the defendant Jacot, in relation to an attachment issued by said Jacot, at Hewark, H. J., and the attaching the vessel Edward Eranklin; witness told said defendant that the property levied on by him in Hew Jersey, was not the' property of Edgar Sprague, but of the Parker Mills; that Sprague had made an assignment of that vessel, among other property; a partial assignment to Messrs. Oollier and Robinson; and that he had also made a general assignment to another assignee; the proceedings in Hew Jersey were thereupon discontinued.”
    John P. Knowles, Counselor-at-Law, of Providence, R. I., examined under a commission, in answer to the third interrogatory said: “Concerning the schooner named, I know only this, namely, that she arrived in Providence between the 17th and the 27th of September, 1857; that on a day intermediate, I went on board her with Deputy Sheriff R. W. Potter, for the purpose of attaching her on a writ, in which Edward H. Jacot was plaintiff, and one Edgar Sprague was named defendant, founded on a judgment of Court for about six thousand ($6,000) dollars; that on conversing freely with the captain (whose name I do not recollect), and on examining the papers he exhibited, I decided not to attach the vessel, especially as the said Potter positively declined doing so unless a bond of indemnity could be given him by responsible parties; the captain disclaimed any knowledge of any Edgar Sprague, nor, as I recollect, did that name appear in any paper exhibited; I left the vessel at the wharf in Providence, axnattached, and know nothing of her subsequent history.”
    In answer to the seventh, he said: “I doubt not that I (did communicate all I knew about the matter to Mr. Jacot, prior to the 27th of September, 1857; I am confident I informed him that he must give a bond, with sureties .satisfactory to the Sheriff, if he wished me to attach the ■schooner on his writ against Sprague; he proffered no bond, and that ended my agency in the matter.”
    Roger U. Potter, Deputy Sheriff of Providence county, R. 1., also examined on commission, in answer to the third interrogatory, testified thus: “I had a writ in September, 1857, given me by John P. Knowles, Esq., upon which I was requested to attach Edgar Sprague’s interest in the •schooner Ann S. Salter, lying at Fox Point, in the port of Providence, Rhode Island; I went on board and inquired for the captain; I found him and told him my business; he said that Edgar Sprague had no interest in the vessel, and hadn’t had for a long time; I requested him to show me the papers—her registry or license; he showed them to me, and I examined them; I was satisfied upon this examination that Edgar Sprague had no interest in said vessel; I told Mr. Knowles that I should not attach the vessel unless I had a bond of indemnity from reliable persons ; I gave him back the papers, and left the vessel unattached, and never received a bond; Mr. Knowles told me he should telegraph, and I told him if a bond was given, that I would take' the papers and attach her.”
    Abner C. Fish, being duly sworn, says: “ That he is now, and has been since May, 1857, thó master of the schooner Ann S. Salter; was at Providence, Rhode Island, with the schooner, in summer or fall of 1857; a man came on board, and said he had an attachment against the vessel; there were two gentlemen together; I asked for whose account the attachment was; they said on account of Edgar Sprague; I told them the vessel did not belong to Edgar Sprague; I showed them my papers. (Witness produced enrollment marked A.) These are papers I exhibited to them; I was employed to take charge of the vessel by C. 0. Sprague, clerk of the ‘Parker Mills’ at Wareham ; I received the certificate of enrollment a year ago last May; I received it from the deputy collector at Wareham, David Eye; the paper is just as I received it from the collector; the erasures were on it when I received it.”
    Cross-examined: “0. 0. Sprague is brother of Edgar Sprague; I showed my papers to both of the men that called down to the vessel.”
    This certificate of enrollment A, was read in evidence, is dated May 25, 1857, is signed “D. Eye, D’y Collector,” at the port of Eew Bedford, and recites that Abner 0. Fish made oath that the vessel was built at Chat-ham, Connecticut, in 1853, “ as appears by register granted at Eew Orleans, the 27th of January, 1857, and numbered (19) nineteen,” and declares that “the said schooner has been duly enrolled at the port of Hew Bedford.”
    It was admitted, that as between Stetson and the plaintiffs, the latter were owners of the schooner. There was no evidence that Willett took the schooner by directions of Jacot. When the plaintiffs rested, the defendants produced in evidence the judgment and execution under which the levy was made, and then moved for a nonsuit on the following grounds :
    “1st. That the defendant Jacot had no notice of the assignment from Sprague to Collier & Robinson.
    “2d. That said Jacot had no notice of the title of the plaintiffs.
    “ 3d. That a bill of sale was from Sprague, and not from the assignees.
    “4th. That no notice to defendant Willett was proven.
    “5th. That the assignment of Sprague to Collier & Robinson was void.”
    The Judge granted the motion and the plaintiffs excepted. The plaintiffs moved for a new trial. From an order denying that motion, the present appeal is taken.

      E. S. Van Winkle, for plaintiff.
    I. Ho notice of the assignment to either Jacot or the Sheriff was necessary. The want of such notice did not alter the ownership of the vessel, and could only protect trespassers acting in good faith from liability for any damage beyond actual damages. Hor would the want of such notice give any rights except as against Sprague and his immediate vendee or assignee; "none against purchasers from such vendee or assignee. (9 U. S. Stat. at Large, p. 440.)
    H. But Jacot had notice; and the Sheriff could get no right of property, except through Jacot.
    The order should be reversed, and a new trial granted.

      R. Goodman, for defendant Jacot.

      A. J. Vanderpoel, for defendant Willett.

      The assignment to Oollyer & Robinson, and the bill of sale to Stetson, not having been recorded in the office of the Collector of Customs where the vessel was registered or enrolled, and no “actual notice” of the assignment or bill of sale being shown to have been given to the defendants, the transfers are “not valid” as against them or either of them.
    1. The statute of July 29, 1850, provides that no bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation or conveyance be recorded in the office of the Collector of the Customs where such vessel is registered or enrolled: provided, that the lien by bottomry, &c. (U. S. Stat. at Large, vol. 9, p. 440 ; Dunl. Ed. of Laws, 1233 ; Potter v. Irish, 21 Bost. Law. R., 103.)
    2. “Rotices are actual, when they are directly given to the party to be affected by them; or constructive, when the party, by any circumstance whatever, is put upon inquiry, which amounts, in judgment of law, to notice, provided the inquiry becomes a duty.” (Bouv. L. D., tit. Notice.)
    “Of actual notice, little can be said. It requires no definition, and it need only be remarked that, to constitute a binding notice, it must be given ly a person interested in the propei'ty and in the course of the treaty for the purchase.” (1 Story Eq., § 400 ; 3 Sug. on Vend., 452 ; 2 Spence’s Eq. Juris., 753 ; Coote on Mort., 370 ; Pomroy v. Stevens, 11 Metc., 244 ; Hewes v. Wiswell, 8 Greenl., 94 ; Flagg v. Mann, 2 Sumn., 486, 554, 555 ; Cushing v. Hurd, 4 Pick., 253 ; Dey v. Dunham, 2 John. Ch. R., 182.)
   By the Court—Robertson, J.

The plaintiff’s right to recover depends upon the act of Congress of July, 1850, (9 U. S. Stat. at Large, p. 440,) if that be a constitutional enactment. It requires bills of sale and conveyances to he recorded in a Collector’s office in order to be notice to any one save grantors and mortgagors and their representatives, and persons having actual notice of them. It is contended on behalf of the plaintiff that information sufficient to put parties upon inquiry is actual notice, within the meaning of the statute; that mere want of notice could not alter the ownership of the vessel, but only served to protect honest trespassers from anything more than mere actual damages, and merely took away the rights of a vendee claiming under an unrecorded bill of sale, and not those of tona fide purchasers from him.

The plaintiffs had an ample opportunity to give actual notice to both defendants of their interest and the instrument under which they claimed, before any sale by the latter; the responsibility of keeping them in the dark rests upon the plaintiffs ; the prejudice, therefore, if any, is of their own seeking. There is no great hardship in compelling a vendee under an unrecorded bill of sale, to give full notice to a party seizing the vessel by legal process, while much harm is done to the creditor of the vendor by concealing such bill until the trial. The language of the statute is very comprehensive, it makes a sale by an unrecorded instrument void as against parties not actually notified. I do not see how that can be confined to a restriction of damages, or to the vendee; it includes the whole world save the excepted class.

The question still remains as to the meaning of the word “ actual.” The evidence approaches very nearly, if ■ not quite, to proof of information sufficient to put the defendants upon inquiry; The plaintiffs were in actual possession of the vessel which forms the subject of controversy; the defendant Jacot, was 'informed that the plaintiffs’ agent had notified his attorney and an officer, who were prepared to seize her in another port under an attachment, that she had been enrolled in a different port, and the vendor and debtor had not owned her for a longtime. But the use of the word “ actual ” in the statute renders such evidence unavailing. This statute is probably a copy of a law of the State of Massachusetts in relation to the registry of instruments affecting real estate; for it contains the words “ heirs and devisees ” who are not the successors to the title of personal property. (Mass. R. S., ch. 59, § 28.) Before the last revision of her laws, the word “ actual ” was not in such act, but was introduced in such revision and has been since held to exclude all constructive notice. (Pomeroy v. Stevens, 11 Metc., 244 ; Flagg v. Mann, 2 Sumn. R., 486, 554, 555.) A similar doctrine was held in Maine even when the word “ actual ” was not in the statute. (Hewes v. Wiswell, 8 Greenl., 94.)

Even in regard to constructive notice, considerable modifications have been lately made of the doctrine. In Goodman v. Simonds, (20 How. U. S. R., 343), notice was held to mean knowledge, as one of its usual and appropriate significations. In Hewitt v. Loosemore, (9 Eng. L. and Eq., 35,) constructive notice was defined to be “ know- “ ledge imputed by the Court upon presumptions too strong “to be rebutted, that such knowledge must have been “ communicated.” These decisions go far to approximating the two kinds of notice, and in a statute, according to its subject, the approximation may be very close. In Dey v. Dunham, (2 J. C., 182 ; S. C. on app., 15 J. R., 555,) it was held that a notice to break in on the registry acts must be such as will affect the subsequent purchasers with fraud; it is not enough if only sufficient to put him upon inquiry. Implied notice was held not to be sufficient in Jackson v. Given, (8 J. R., 137 :) The doctrine laid down in Dey v. Dunham, is reiterated in Jackson v. Van Valkenburgh, (8 Cow., 260 :) And Jackson v. Elston, (12 J. R., 452,) declares that explicit notice of the prior unregistered deed must be given. The language of all the cases in regard to notice under registry acts, seems to be even stronger than those in case of negotiable instruments diverted from the object for which they were made. Even without the word “ actual ” in the statute, I think the notice in this case was not sufficient, with it, there clearly was not notice.

Although I find difficulty in ascertaining any principle upon which the Federal Congress has power to legislate upon the transfer of vessels, not equally applicable to the sale of any other species of property, either subjects or instruments of commerce, or even to every act in the course of commerce, every mercantile dealing, including prevention of frauds and effects of policies of insurance; and although such power does not come within that of regulating' the national character of vessels, nor is it in aid of revenue laws or a regulation of commerce under section 3 of section 8, article 3 of the Constitution of the United States, I am loth to pass upon the question of the constitutionality of the law under consideration ; and leave it to the highest court in this- State or the Federal Courts to pass upon it: being content with noticing it: particularly as the counsel did not discuss it on the argument.

These views render my examination of other points in the case unnecessary. The order should, therefore, be affirmed, with costs.

Hoffman, J.,

delivered an opinion, which after discussing questions other than that of notice, proceeds as follows, viz.:

We come, therefore, as to both defendants, and in every aspect, as to the defendant Willett, to the consideration of the question mainly argued and relied upon by the defendants, viz., the effect of the act of Congress of July 29,1850, upon the case. (U. S. Stat. at Large, vol. 9, p. 440.)

This point was not explicitly and in terms taken upon the trial. It is supposed to have been included in the point that neither defendant had notice of the assignment or bill of sale. Both counsel advert to the statute in their points; the plaintiffs seeking to avoid its effect. Much of the argument on the appeal turned upon it.

It seems to have been conceded and assumed that no registry, under the act in question, of the assignment or bill of sale, had ever been made.

The act in question provides, “That no bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel, of the United States shall be valid against any person, (other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof,) unless such bill of sale, mortgage, hypothecatiou or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.’’ Other sections provide for the mode of recording’, giving certificates, &c.

■ My brother Bobertsoe has expressed some doubt as to the constitutionality of this act, whether it can justly come within the power of regulating the national character of vessels, under the power to regulate commerce.

Professor Parsons, in his Elements of Mercantile Law, (pp. 329, 330 and note) has intimated similar doubts. He adverts to the case of recording, required by State laws, of mortgages of personal property, and he observes: “If we suppose the statute to be constitutional, of which however we do not feel certain, we should say that it controlled and superseded the State statute, so as to make that unnecessary and ineffectual; and therefore a record in the custom houseonlywouldbesufficient.” In Thompsons v. Van Vechten, (at Special Term in June, 1857 ; see 6 Bosw., 373,) I had this act under consideration, and observed that, prior to this statute, the registry or enrollment established merely the national character of the vessel. It was not necessary, to make the title valid, that a bill of sale should be enrolled or registered. (Hozey v. Buchanan, 16 Pet., 215 ; Wendover v. Hogeboom, 7 John. R., 308 ; Weston v. Penniman, 1 Mason, 306.)

Hicks v. Williams, (17 Barb. R., 523,) was referred to, where it was held that a canal boat was not a vessel of the United States, within the act. Ho question as to the legality of thé act was raised. •

Thomas v. The Steamboat Kosciusko, was also noticed. (11 Leg. Obs., 38.) Betts, J., held, that in that Court (District Court of the United States,) at least, the act of Congress must prevail, whatever might be the question as to the subsistence of the State acts. That question did not arise.

I added “ In my opinion, this act of Congress prescribes a rule as to all vessels of the United States as fully obligatory upon the State tribunals, as upon those of the United States; that it does not supersede or abolish statutory regulations of the State upon the subject, which are not inconsistent with it. It imposes another condition as to the validity of a mortgage as to these particular vessels. Hence if a mortgage of such a vessel is not registered at the custom house, it will be invalid as to purchasers or mortgagees without actual notice, although the State law may have been fully complied with. If it be registered at the custom house, and a State statute has been neglected, it will give place to a subsequent transfer also registered, and as to which the State law has been fulfilled. And so in case of successive mortgages, all registered, and all made in accordance with the law of the State, the priorities will be settled by the dates. I do not see any serious difficulty in thus holding the legislation of the State and Congress to be concurrently in force.”

Mr. Parsons refers to the case of Fontaine v. Beers, (19 Ala., 722.) In that case it was held, that the statutes of the State requiring the registration of mortgages did not apply to vessels navigating the ocean. The evidence of title to such was to be looked for in the ship’s papers, and the recording under the act of Congress.

In Potter v. Irish, (21 Monthly Law Reporter, 103,) the claim of an attaching creditor under the Massachusetts law was held good against the mortgagee of a vessel, whose mortgage was not recorded at the Custom House at which she was registered, though recorded elsewhere.

I have not met any authority in the reports of the Supreme Court of the United States, upon the act, except that of Hays v. The Pacific Mail Steamship Company, (17 How. U. S. R., 597,) in which it was referred to in connection with the registering act of 1792. “These provisions,” say the Court, “and others might be referred to, very clearly indicate that the domicile, or home port, of a vessel that requires to be registered, is the port at which she is registered, and which must be the nearest to the place at which the owner or owners reside.”

The home port of the vessel in question was New York, and it was held she was not liable to taxation by the State of California. She was not properly within its limits, so as to become incorporated with the other personal property of the State. She was temporarily engaged in lawful trade and commerce, with her situs at the home port where she belonged, and where the owners were liable to be taxed upon their capital.

The constitutional power to regulate commerce has authorized Congress to adopt the system of registration and enrollment of vessels, by means of which a national character is given to them, and a compliance with which is indispensable for the obtaining that character and the advantages which arise from it. I do not see why it is not equally constitutional to impose a condition on the mode of transfer of such national vessels, to keep the evidence of the title to them recorded and open.

Lord Teetebden says that the great, and, perhaps, the only original object of the British statutes, was, to advance the policy of the State by the notoriety of property, obtained through the medium of a public register, a measure adopted, with numerous improvements, from the wisdom of former times. The privileges belonging to a national vessel are to be preserved and continued in the manner pointed out by the statute.

The power to regulate commerce embraces within its scope the power to regulate navigation. (Gibbons v. Ogden, 9 Wheat., 1 ; City of New York v. Miln, 11 Peters, 102 ; and Veazie v. Moor, 14 How. U. S. R., 568.)

In The People v. Brooks, (4 Denio, 469,) Justice Beardsley says: “The word commerce, as used in the Constitution, is not limited to the mere buying and selling of merchandise, and other commodities, but comprehends the entire commercial intercourse with foreign nations, and among the several States. It includes navigation, as well as traffic, in its ordinary signification, and embraces ships and vessels as the instruments of intercourse and trade.”

In The United States v. Coombs, (12 Peters, 72,) it was decided that, under, this provision of the Constitution, an act of Congress subjecting to indictment all plunderers of the property of wrecked vessels, or their passengers, extended to a pillage committed above high water mark. The Court held that it had not jurisdiction under the other clause as to admiralty jurisdiction.

But upon the point of the notice or information acquired by Jacot, not being such as prescribed by the statute, I concur with Justice Bobebtsoh’s result. The statute only remedies the want of registry as to those who have actual notice of the bill of sale, mortgage, &c. The acts of our State as to recording deeds and mortgages provide, that, if not recorded, they shall be void as to subsequent purchasers or mortgagees, in good faith, and for valuable consideration. This language lets in the doctrine of notice; and it is settled that implied or presumptive notice may be equivalent to actual notice. (Kent’s Com., vol. 4, p. 171., &c.) It is not necessary to enter upon the cases and their distinctions upon this doctrine. (1 R. S., 756, § 1. As to mortgages of chattels, 2 R. S., 136, 3d ed. ; act of 1833, ch. 297, § 1.)

The statute of fraudulent conveyances relative' to lands, (2 R. S., 134, § 1,) is, that conveyances or charges on land, made to defraud proven subsequent purchasers for a valuable consideration, shall be void. And the second section is, that no such conveyance or charge upon lands shall be deemed fraudulent in favor of a subsequent purchaser who shall have actual or legal notice thereof at the time of his purchase, unless the grantee was privy to the fraud intended.

This statute changes the rule of law under the 27th of Elizabeth, by which even a mere voluntary conveyance, fraudulent only by construction of the law, could be set aside by a subsequent purchaser, although he had notice of it. (Roberts on Convey., 35 ; White v. Hussey, Prec. in Ch., 13 ; Doe v. Manning, 9 East., 59 ; 18 Ves., 90, 110 ; Sterry v. Arden, 1 John. Ch. R., 261 ; Newman v. Rusham, 9 Eng. Law and Eq. R., 410.)

Chancellor Kent, in Sterry v. Arden, adverts to the doubts expressed whether the better construction of the statute would not have been to support the voluntary conveyance against purchasers for a valuable consideration with notice, (and to that opinion he strongly inclined,) but that it was pretty evident the allusion there was only to cases of actual notice, where the purchaser was intentionally and premeditatingly defeating the fair claims and expectations of the prior grantee. (9 East., 71 ; 6 Bos. & Pull., 335 ; 1 Fonbl., 269, n. 9 ; Atherly on Marriage Settlements, 197, n. 1 ; Sterry v. Arden, in the Court of Errors, 12 John., 536, Revisers’ Notes, vol. 3, p. 654.)

The phraseology of the statute above cited is, “ actual or legal notice.” In Williamson v. Brown, (15 N. Y. R., 354,) the different kinds of notice were much discussed. It was a case of an unrecorded mortgage and a subsequent grant. Mr. Justice Paige speaks of the question as being whether the plaintiff, (the grantee,) was to be deemed to have had, at the time of his purchase, legal notice of the prior unrecorded mortgage. It is manifest that he uses the term as equivalent to implied or constructive notice. Mr. Justice Selben has given a description of notices, perhaps more complete and accurate than any to be found elsewhere. “Notice is of two kinds; actual and constructive. Actual notice embraces all degrees and grades of evidence, from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in finding notice. It is a mere question of fact, and is open to every species of legitimate evidence, which may tend to strengthen or impair the conclusion. Constructive notice is a leg’al inference from established facts. A recorded deed is an instance of constructive notice. Actual notice of it or not is of no consequence. Notice to an agent is constructive notice to the principal; and it would not, in the least, avail that the agent had not communicated the fact. The law imputes notice, whether he has it or not. Legal or implied notice, therefore, is the same as constructive notice, and cannot be controverted by proof'.”

The question of notice of the prior mortgage in the case was then treated as a question of fact, upon the facts found by a referee, who had stated that the plaintiff had not actual notice of the mortgage at the time of his purchase, but had sufficient information to put him upon inquiry; that he pursued such inquiry to the extent of his information and belief, and did not find that such mortgage existed, or had been given. A judgment for the defendant, on the ground that the plaintiff was chargeable with notice of the mortgage, was reversed by the Court of Appeals.

It is, then, I apprehend, too strong a proposition to say that actual notice implies, and can only be satisfied by absolute proof of a direct personal communication of the fact or instrument in question. But in deciding what short of that will suffice, we are to bear in mind the strong leaning of the later English cases, and of the Supreme Court of the United States, especialty in commercial matters, to require much more to displace the right of an honest third party, on the ground of notice, than was before deemed requisite. In the case of The Belmont Branch of the State of Ohio v. Hoge, at the present General Term, (7 Bosw., 543,) I have examined and stated these authorities ; and the language of the learned Judges in Williamson v. Brown, (ut supra) is to the same effect.

It may be stated, then, as a just conclusion from these authorities, and the general principles they involve, that the evidence must be, such as to leave no room for doubt, that the party had information communicated to him of the existence of the bill of sale, mortgage or conveyance. The proof must be of a communication to him individually, and of the document; and if sufficient, it will establish knowledge. What is not required is, rigid proof of the exhibition of the instrument itself to the party personally.

How by the test of such rules, the evidence here is very defective and insufficient. There is no proof that the attorney or the Deputy Sheriff themselves, saw either transfer. On the contrary, it rather is to be inferred that they saw only the enrollment, and heard only that Sprague was not the owner. Knowles, the attorney, states he has no doubt he communicated to Jacot all he himself knew. I do not think that this would have sufficed had he really seen the transfers. Clearly it is now insufficient. The communication by Delavan to the defendant, related to another vessel, and the statement that Sprague had made a general assignment, was also much too vague to charge defendant with notice under the rules I have deduced.

I had some doubt whether the question as a matter of fact, ought not to have gone to the jury ; but I am clear that had they found for the plaintiff on this proof, the court ought to have set their verdict aside; and in such a case a nonsuit must be supported.

The order should be affirmed, with costs.

Bosworth, Ch. J.

The evidence was insufficient to charge Jacot; and as to him the complaint was properly dismissed, unless it be essential, to uphold the decision, that it was rightly granted on the grounds on which it was asked. Had it been moved on the ground that there was no evidence of the levy being ordered or requested by Jacot, that defect might have been supplied. But if granted because there was no proof satisfying the conditions of the act of Congress in question, the case could not have been sustained by proof of Jacot’s participation in the levy.

Assuming the act of Congress of July 29, 1850, to be constitutional, its effect is to make every .transfer of a vessel of no force or effect as against creditors or vendors not having actual notice of it, unless it be recorded as that act requires, although it be in the possession of a purchaser in good faith, who has paid full value at the time it is seized on process at the suit of such creditor. Such I think is the necessary import of the statute. • If so, then this action cannot be sustained on the evidence given, as neither the defendant Jacot nor the Sheriff is proved to have had actual notice of the assignment of it; and the evidence given does not warrant the jury in finding actual notice. Hot seeing clearly that such an act is void, I concur in affirming the order.

Order affirmed.


source: Caselaw Access Project

author: Robertson, J. Hoffman, J.

license: Public Domain

text:
    Ludlow, Plaintiff and Appellant, v. Van Ness et at., Defendants and Respondents.
    1. Where, on a sale of real estate under a judgment foreclosing a mortgage, a deed is executed by the sheriff to D. L. as the purchaser thereof, dated June 29, 1854, (and recorded February 9, 1857,) and D. L. for good consideration, by deed dated July 9, 1859, (recorded October 14, 1859, conveys to J. W., Jr., who, for good consideration, by deed dated July 9, 1859, (recorded November 4, 1859,) conveys to E. H. B., and the plaintiff subsequently agrees to purchase said lands; he cannot maintain a suit to obtain a rescission of his contract'to purchase, by merely showing that the plaintiff in such foreclosure suit was an alien; and that D. L. in a covenant signed by him dated March 4, 1857, (and recorded in that month in the proper hook for recording deeds,) recited the alienage of such plaintiff, his ownership of the mortgage foreclosed, and that the property Was bought in by the alien’s agent in the name of D. L., for the ultimate benefit of the alien, in part payment of the amount due on -such mortgage; and that D, L. by said covenant, covenanted to and with the alien £o allow his agents “to let and demise the lands and to receive the rents thereof” — and “ whenever requested by the alien to convey the property * * to any person * * by him designated ”—and to “ execute deeds of sale by the alien * * and allow him to receive the proceeds * * whenever requested by said alien," &c.; where the only objection made to the title, on the tender of a deed by the vendor to the plaintiff, is that there was no request from the alien to D. L. to make the grant to J. W., Jr., and in other respects the title is admitted to be perfect.
    2. Such a covenant is not a conveyance within the recording acts, and the record of it is not constructive notice of its existence, and would not affect the title acquired by J. W-, Jr., or E. H. B., or that tendered to the plaintiff.
    3. The stipulations in the covenant on the part of D. L. are executory only, and the rights under it acquired by the alien rest wholly in action. It creates rio interest or estate in the land, nor right of possession. A citizen being owner and the fee being in him, and having the right of conversion without the consent of the alien, there can be no forfeiture by reason of such interest in the alien as the covenant creates and declares.
    4. A grant by D. L. to a purchaser for value, would vest in him a good title unaffected by the covenant, even though he bought with knowledge of it. (Hoffman, J.)
    (Before Bosworth, Oh. J., and Hoffman and Robertson, J. J.)
    Heard, December 7, 1860;
    decided, April 27, 1861.
    Appeal by the plaintiff from a judgment against him, entered July 14th, 1860, on the report of Philo T. Buggies, Esq., as referee.
    The action is brought by Edward H. Ludlow, plaintiff, against William W. Van Ness, Anthony J. Bleecker, James Bleecker, Robert H. Sherwood and William S. Mayo, as defendants, to obtain a judgment rescinding a contract made by the plaintiff November 22, 1859, to purchase the real estate in question, (the purchase being made at an auction sale conducted by the defendants other than Van Ness, who were auctioneers, and composed the firm of A. J. Bleecker, Son & Co.,) and also ordering a return of ten per cent of the purchase money paid by the plaintiff to said auctioneers at the time of the auction sale.
    The terms of the auction sale were as follows, viz.:
    “ Ten per cent of the purchase money, together with an auctioneer’s fee of ten dollars to be paid at the time and place of sale, and the remaining ninety per cent on the 15th day of December, 1859, for which a good and perfect title is to be given by W. W. Van Ness or others.”
    The defendant Van Ness, authorized the sale in the form and manner mentioned, and the other defendants acted as his agents.
    The substantial question raised by the appeal is this— was the plaintiff tendered a good and perfect title ?
    The premises in question (being at -the corner of Fifth Avenue and 112th street, New York city) are part of premises covered by a mortgage executed by Smith T. Weyant, the owner thereof, which mortgage was foreclosed in the Supreme Court at the suit of James Watt, Jr., an alien, and the premises were ordered by a judgment entered in that suit, April 10, 1854, to be sold by the Sheriff of the city and county of Hew York, to satisfy the moneys due on said mortgage, the said Watt being the owner thereof.
    Daniel Lord bought the premises at the Sheriff’s sale for $8,400, and received the Sheriff’s deed June 29, 1854, which was acknowledged the same day, and recorded February 9, 1857.
    Mr. Lord and wife, by a deed dated July 9, 1859, (and recorded October 14,1859,) conveyed the premises to John Ward, Jr., who, by a deed of the same date, (recorded Hovember 4, 1859,) conveyed the same to Robert H. Bleakie.
    Mr. Lord, on the 4th of March, 1857, executed a written and sealed instrument of that date to said James Watt, Jr., (recorded March, 1857, in the book for the recording ■of deeds), which recites that said Watt owned the mortgage, the foreclosure of it, and that “the said property was bought in by the agent of the said James Watt, in the name of the said Daniel Lord, for the ultimate benefit •of the said James Watt, in part payment of the amount due on said mortgage,” &e. By it, Mr. Lord “doth, for himself, his heirs and assigns, covenant to and with the .said James Watt, his executors, administrators, as follows :
    “ That the said Daniel Lord will allow the agents, from time to time, of the said James Watt, his heirs, executors, administrators and assigns, to let and demise the said lands, and to receive the rents thereof, keeping him harmless. That the said Daniel Lord will, whenever requested by the said James Watt, his executors, administrators, convey the said premises, or any portion thereof, to any person or persons by him or them designated. And that, whenever requested by the said James Watt, his heirs, executors, administrators or assigns, he will execute deeds of sale by the agents or representatives of him, the said James Watt, his heirs, executors, administrators or assigns, and allow them to receive the proceeds thereof, he being therein indemnified, in which deeds his wife shall unite to bar her dower, the said James Watt, his heirs and assigns, bearing the expenses thereof.”
    On the 15th of December, 1859, Van Hess tendered to the plaintiff a deed of the premises, duly acknowledged, and in proper form executed by said Bobert H. Bleakie and wife. The plaintiff expressed himself satisfied with the deed and title, with one exception only, viz., “that there was no request from James Watt, Jr., to Daniel Lord to make conveyance; and this was the only objection made to the title.”
    The plaintiff thereupon tendered to Van Hess the balance of the purchase money, and “demanded a deed conveying a good title to the lot,” and subsequently demanded of the other defendants, the ten per cent which they then held.
    The referee held, as conclusions of law, that the deed from the sheriff to Mr. Lord vested in the latter an estate in fee simple, and that the deeds to John Ward, Jr., and to Bobert H. Bleakie, successively, a like estate; that no cause was proved against either defendant, and that the complaint should be dismissed.
    By stipulation, the defendant Van Hess admitted that James Watt, Jr., by an instrument dated December 26, 1859, executed by him by Thomas Watt, his attorney in fact, requested Mr. Lord to execute deed of sale, &c. The power of attorney to Thomas Watt, is dated Hovember 18, 1856. The fact thus admitted by stipulation is not mentioned in the referee’s findings of fact, and the others above, mentioned are, as is the further fact that Bobert Bleakie had an unincumbered estate, in fee. Van Hess, by stipulation, further admitted, “that the title to said lands shall be deemed good and perfect, down to the conveyance from John Orser, sheriff, &c., to Daniel Lord, dated 29th of June, 1854.”
    Judgment having been entered on the report, the plaintiff appealed from it to the General Term.

      Charles E. Whitehead and Wm. Curtis Noyes, for appellant.
    I. The title proposed to be made in this case was not good, and the purchaser was entitled to receive back his deposit and interest.
    1. James Watt did become the purchaser at the sheriff’s sale, and the sheriff’s deed was given to Mr. Lord for his benefit only, and no valid trust being declared in it, or in any instrument executed contemporaneously with it, an apparent legal title vested in Mr. Lord, under the Revised Statutes, subject to be defeated by creditors. (1 R. S., 730, § 64.)
    2. By the grant or declaration of uses executed by Mr. Lord, on the 4th of November, 1857, an absolute title to the premises vested in James Watt, the same as if a conveyance had been made directly to him by Mr. Lord because™—
    The grant or declaration of uses, specifically gives James Watt, the beneficiary, the exclusive possession of the premises, by allowing his agents “to let and demise the lands, and to receive the rents thereof;” of course the agents would do this for him, or he could do it himself.
    And Mr. Lord further agrees to convey the premises, or any portion thereof, to any person or persons by him or his executors or administrators designated, and that whenever requested by them, he will execute deeds, and allow them to receive the proceeds thereof.
    Thus Watt is, by this grant or declaration of uses, “entitled to the actual possession of the lands, and to the receipt of the rents and profits,” and is declared to be the exclusive beneficial owner, and no lawful trust, nor any active trust of any sort, being declared in Mr. Lord, Watt is in law deemed to have a legal estate therein of the same quality and duration, and subject to the same condition as his beneficial interest, and that is an absolute estate in fee simple. (1 R. S., 727, §§ 47-49, 58, 59 ; Wright v. Douglass, 3 Seld., 564, per Ruggles, J., 568-570, 574 ; Ring v, McCoun, 6 Seld., 268, per Gardiner, J., 271.)

      Under the former statute of uses, the legal estate would have been transferred to the use and vested in Watt. (Preston on Est., 145, 149 ; Watkins on Conv., 197.)
    Mr. Lord’s conveyance, therefore, to John Ward, conveyed no title to him, and the title proposed to be given to the appellant on the purchase, was through that deed only, and included no deed from Watt, in whom the legal title was. The appellant, if he had accepted it, would have acquired no title at all, not even one of a questionable character.
    Besides, if Watt himself had conveyed, the title derived through him would have been subject to be disturbed for his alienage; as the prerogative right of forfeiture is not barred by alienation, and it must be taken subject to the right of the government to seize the land. (2 Kent, 61.)
    Especially is this the rule, as no one could claim as a bona fide purchaser; the grant or declaration of uses having been recorded March 27th, 1857.
    II. Even if the legal title remained in Mr. Lord, still it was to evade the right of the State as to Watt’s alienage, and was charged with a trust for Watt, of which the record of the declaration of the uses would be notice to subsequent purchasers, and they would take subject to the trust as well as to the claim of the State, thus rendering the title doubtful and hazardous. (Anstice v. Brown, 6 Paige, 448 ; Du Hourmelin v. Sheldon, 1 Beav., 79 ; Hubbard v. Goodwin, 3 Leigh, 514.)

      B. T. Kissam, for respondent Van Ness.
    I. The exceptions of plaintiff to the Referee’s report, raise only two important questions in this action:
    1st. Did the several conveyances from Lord to Ward and from Ward to Bleakie vest in the latter a good and sufficient title to the lot in question?
    -2d. Is the title conveyed to Bleakie affected in any manner by the covenant of Daniel Lord?
    This covenant was executed and recorded nearly three years after the delivery of the deed from Orser to Lord, but before the delivery of the deed from Lord to Ward.

      Mr. Watt being an alien, could have taken title to the land by a conveyance made directly to himself, but in no other way. (2 Kent’s Com., marg. p. 53.) The covenant does not possess the form or requisites of any of the conveyances specified in the Revised Statutes, (1 R. S., pp. 738, 739, 1st ed.,) and, therefore, does not pass the title in the land to Mr. Watt. Mr. Watt cannot have taken the title by operation of law; therefore, construction, aided by the statutes, cannot have vested the title to the land in Mr. Watt, or have given him any interest in it. (2 Kent’s Com., marg. pp. 53, 62.) Courts of justice must carry into effect the intention of the parties. (Lalor on Real Estate, pp. 305, 306.) Mr. Lord’s intention was simply to obligate himself to convert the land into money or personalty and apply the proceeds to the liquidation of Mr. Watt’s original mortgage claim. (Meakens v. Cromwell, 1 Seld., 136 ; Anstice v. Brown, 6 Paige, 448.)
    II. There was only one objection made to the title on the 15th December, 1859, (the day fixed for closing the sale,) viz.: “That there was no request from James Watt, Jr., to Daniel Lord, to make conveyance.’’ This was a waiver on plaintiff’s part of all other objections, and if the one made is insuflicient, he is not entitled to a rescission of his contract. (1 Hilliard on Vendors, p. 211, § 7 ; id., p. 223, § 36 ; 2 id., p. 69 ; More v. Smedburgh, 8 Paige, 605 ; Walker v. Wainwright, 16 B. S. C. R., 486 ; Reed v. Trustees of Lockport, 3 Comst., 197 ; Embury v. Connor, id., 511.)
    There was no necessity for a request. Mr. Lord had the right to convey without it. The object and whole intent and effect of the covenant was to enable Mr. Watt to expedite a conversion of the land into money, and get the proceeds. The judgment should be affirmed, with costs.

      John Sherwood, for A. J. Bleecker, Son & Co.
    I. The covenant of Mr. Lord was not entitled to be recorded. It was neither a conveyance, power, nor declaration.

      II. The title was absolute in Mr. Lord, and no action of ejectment by the State would lie for the possession of the land. In case it be said that the conveyance to him was an evasion of the laws relative to escheat, the remedy of the State would be a proceeding in equity against him to recover the proceeds of the land.
    III. At most this was a common method of securing a debt to a mortgagee. The fact that the mortgagee was an alien does not deprive him of security for his debt; nor of any remedy or protection such as the common one of purchasing in the property through an agent.
    1. A creditor secured by an assignment for the benefit of creditors, does not lose his right because he is an alien.
    2. The idea that in such cases, the State might claim an escheat would be opposed entirely to public policy. As in cases of mortgages by corporation to secure bonds held by aliens, is it possible that the agent of the bondholders cannot purchase the estate on a foreclosure sale?
    IV. At most the instrument creates a charge in the nature of a mortgage. The title was good in Bleakie and judgment should be affirmed, with costs.
   Robertson, J.

The objections to the title arose wholly from the instrument of March, 1857, executed by Mr. Lord, coupled with the alienage of Mr. Watt, and they all hinge upon the right acquired by the latter under it.

The extent of the right acquired by Watt in or over the premises in question by such instrument may be narrowed by ascertaining what it does not confer. It does not profess to give, by itself, any right to the possession of the land, or any interest therein, to any one, without the execution of some other instrument by the covenantor; indeed there are no words of present grant in it. Not only is no present right conferred by it on any one, but it does not purport to create any interest, estate or trust in, or power or authority over the land, in any person, or even to give any one the power of creating such estate, interest or trust. Its language is entirely future and executory; it does not make any use of the previously recited purchase for the benefit of Watt as the basis of any equitable estate or interest, but contains only covenants to convey to his appointees. Such covenants contained in it do not run with the land; they affect neither the title to it nor' the mode of using it or its appurtenances; nor do they subject any other land to the use of the owner of the premises in question. In fine, the covenants composing the entire instrument are only executory stipulations, the remedy for whose breach is an action for damages, or their enforcement, if capable of specific performance. The rights of Watt or his assignees are, therefore, wholly in action, not in possession. It is not a covenant to stand seised, for want of the proper considerations of blood or marriage; and it is no form of grant or conveyance recognized or created by any statute.

Although the covenantor, by such instrument, covenanted to allow Watt and his agent to demise the land and receive its rents, and to dispose of it and receive the proceeds of such disposition, it did not confer any right of possession without the execution of some other instrument, even if it passed the right to the rents, in case any demise was made that gave no such right of possession. Neither Watt nor any grantor of his could have legally entered on such land without the permission of the covenantor, or brought an, action of trespass against him for ejecting them, or against strangers for trespassing on it. Watt or bis appointees were not entitled, by the execution of such instrument, to such possession of the land, or the receipt of the rents and profits, as to make his or their right or interest a legal estate within the meaning of the statute. (1 R. S., 727, 5th ed., §§ 47, 48, 49.) Nor was there such a grant of an absolute right of disposition by it, to Watt, as to take the title out of the covenantor and vest it in the latter; it required another instrument to do so. (1 R. S., 733, 5th ed., § 103.) Appointees of Watt had no other remedy to obtain a title or possession of the land, if refused by the covenantor, except to commence an action to compel him to convey the land to them as equitable assignees of Watt. If they had, that, such a right is only a chose in action, not an interest in the land. Mo purchaser from Mr. Lord, with full notice of such a claim, could be affected by it, until the commencement of such action and filing notice of its pendency.

If this be the correct view of the instrument in question, the objection of alienage also falls to the ground; not that I am disposed to consider the conveyance to Lord a mere mortgage, because he bought the property for the benefit of Watt, who, under the covenant in the instrument of March, 1857, was entitled to the proceeds of the sales of all the laud, whether they exceeded or fell short of the debts originally due to him ; and there was no equity of redemption left in any one after he had received the amount of such debt, certainly not in the original mortgagor. Still there was no such interest of Watt in the land as could be forfeited; and if any interpretation could save it from that fate, that must be given to the instrument of 1857.

Forfeiture for alienism retains its feudal character. As long as there is a native owner of the land there can be no forfeiture for the alienism of any one who has right only by contract. Tips principle pervades modern decisions, so that if an alien has no interest in, or control over the soil itself, but only a right to its proceeds whenever it passes by sale to the hands of another citizen or subject, while the right of conversion without the consent of the alien continually exists, neither the fee of the land nor any less estate can be made the subject of escheat by reason of such alienage. (Du Hourmelin v. Sheldon, 1 Beav., 79 ; S. C., on appeal, 4 Myl. & Cr., 525.) Land, over which an alien has no other control except to compel its lease or conversion into personal estate, so far as regards forfeiture for such alienage, is looked upon as already converted into personalty, whether such right arises from conveyance, (Anstice v. Brown, 6 Paige, 448,) or devise, (Meakings v. Cromwell, 1 Seld., 136.)

So, too, if the instrument be such as I have considered it to be, its mere record Avas not notice to any one; (1 R. S., 762, §§ 70, 71 ;) it might have been so, if it were the grant of a power over the land, (1 R. S., 735, § 127,) but it is not even that, and is not in any manner an instrument affecting the title to land, as that language is used in the statute. A glance at the purpose of the recording acts and. the provisions contained in them for carrying it out will readily show this. It is not every document in writing which may have some effect in establishing or overthrowing a title to land, which can be recorded. The written admission of a fact by a party claiming an interest in lands may materially impair Ms right or title, but even if it were under seal, its record would be no notice to purchasers. (Jackson v. Richards, 6 Cow., 617.) It is only the record of an instrument which directly operates on the land itself, and thus affects the title to it, which is notice of the interest, power, trust or estate thereby created. Still less than any other admission would one of facts merely evidence, or tending to create evidence, of the existence of an instrument material to a title, be notice of the existence of such instrument. The record must contain all the knoAvledge Avith which a purchaser is chargeable: his information is not to be derived partly from the record, partly from inquiries outside. Where the law gives the privilege of notifying the world by a copy of an instrument, it must be an exact copy. It is upon these principles that separate records are provided for mortgages, (which are mere liens, capable of being discharged,) executory contracts of sale and powers of attorney, because they do not affect the title to land, although they are the means by which it may be affected. The right, therefore, of which a record is notice is only such as is conferred by the recorded instrument, and is to be determined by its face alone, not by extrinsic evidence, and is not to be a mere claim. Executory contracts and powers of attorney are recorded separately, because they confer no rights in the land; the former are even subject to all equitable defenses which may prevent the enforcement of the obligation contained in them, although arising from facts not apparent on their face; and, the party in whose favor they are made having a right to elect to sue to recover damages for non-performance instead of demanding a specific performance, the title to the land consequently may never be affected by them. The object of the statute was not to embarrass the vendibility of land, by allowing a cloud upon the title to land, which might never become an interest in it, although a mere chose in action, to appear upon record, but simply to preserve evidence of the interest of a person in land, although he might be out of possession. A person having an executory contract for the sale or conveyance of land may convert his right under it into an interest in the land, by commencing an action for specific performance and filing a notice of the pendency of it: it becomes then an inchoate right, the completion of which by the final decree relates back to such inception. As there was no definition or settlement of Watt’s interest under the instrument of March, 1857, except by the record of that instrument, the plaintiff would have had his title discharged of any notice by Watt of his interest.

I think, therefore, the rights of Watt, under the instrument of March, 1857, were not such as to subject the title derived from Mr. Lord, to any claim from appointees of the former, or the State, by reason of his alienage; and that the record of that instrument was no notice of such rights. The title proposed was, therefore, unobjectionable, so far as any objection was raised thereto.

The judgment, therefore, must be affirmed, with costs.

Hoffman, J.

I shall first consider this case upon the assumption that the covenant of the 4th of March, 1857, was executed by Mr. Lord contemporaneously with the deed from the sheriff to him, viz., the 29th of June, 1854; that Mr. Lord did not pay the consideration money to the sheriff in point of fact, some arrangement by receipts having been made; and that the record of the instrument of the 4th of March, 1857, treated as made on the 29th of June, 1854, was an instrument to be recorded—was recorded—and thus became equivalent to notice from the date of the record.

Then I find that James Watt, Jr., the alien, had been the holder of certain bonds and mortgages upon lands in Hew York; that a foreclosure of such mortgages had taken place; that the property was bought in by the agent of Watt, in the name of Daniel Lord, for the ultimate benefit of Watt, in part payment of the amounts due upon such bonds and mortgages; and that deeds had been executed in pursuance of such arrangement, and for such purposes, by the sheriff to said Lord. The lands were taken in order to realize for Watt, the amounts due on the bonds and mortgages which affected the lands.

Then the instrument, to fulfill these objects and carry out these intentions, provides: That the agents of Watt, his heirs, &c., shall be allowed to let and demise the land, and receive the rents thereof, keeping the said Lord harmless; that the latter will convey the lands “whenever requested by Watt, his executors or administrators, to any person or persons by him or them designated;” that, when requested by Watt, his heirs, &c., he will execute deeds, (for sales made,) by the agents or representatives of Watt, his heirs, &c., and allow them to receive the proceeds thereof.

By the 2d section of title 5, chap. 1, part 2 of the Revised Statutes, (1 R. S., 948,) in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.

With the intention of this instrument to benefit Watt by getting payment of the amounts due on the mortgages, held steadily in view, we are to examine these various provisions.

A naked authority to the agents of Watt to let the lands, and receive the rents, limited to what is necessary for the purpose designed, is not equivalent to vesting in Watt a title to the actual possession of the lands, as well as to an indefinite receipt of rents and profits. (1 R. S., 727, §§ 47-49.)

A mere, and probably revocable power to a class of persons, to let the property and take the rents, falls much short of the case made by these sections.

There is next the delegation of a power to Watt, to designate a person or persons to whom Lord shall convey the land. This clause is the most difficult of all the clauses to make consistent with the general scope and intent of the instrument, as I have suggested it to be. But I am of opinion that it can be justly read to mean only this: That to carry out the general purposes, if circumstances occurred which rendered a change of the grantee advisable, Watt should have the power to do so; and the substituted person or persons should stand precisely in Mr. Lord’s place.

The last clause is, in substance, that Watt’s agents or representatives may make sales of the land, and Lord will execute deeds to the proposed purchasers, and will account for the proceeds, or allow such agents to receive them. Thus' I interpret this provision. This appears to be of itself, nothing but an agreement to sell the lands, through a class of agents, and account for the proceeds, but to throw light upon and aid in the construction of the other clauses.

Thus the case is brought, in my judgment, within the principle of Anstice v. Brown, (6 Paige, 448 ;) of Craig v. Leslie, (3 Wheat., 563 ;) and Meakings v. Cromwell, (1 Seld., 136,) Watt was to take the rents, and the proceeds of sales of lands, in and towards the discharge of the amounts due on the bonds and mortgages, which he originally held as security for a debt due to him.

Du Hourmelin v. Sheldon, (4 Milne & Craig, 525,) is a very pertinent and very instructive case irpon this subject.

There is another view of the ease. Suppose the Sheriff’s deed had been to Mr. Lord to hold the premises upon the trusts therein after expressed, and then the provisions of the instrument had severally been prefaced by a statement, “upon trust” and “upon further trust”—What would have been the legal operation?

Eor reasons before noticed, I do not think that the 47th and 49th sections of the statute affect the case. The 51st and 52d sections are inapplicable, because the 53d, I apprehend, applies; but chiefly because, where there is an express declaration of the trusts or conditions on which the land is held, there can be no implied or resulting trust. (6 Paige, 448.) If the 55th section can apply to the case, if it could be thought that it is a trust to sell land for the benefit of creditors, or to satisfy a charge, there would be an end of all difficulty. But I assume, and, probably, it is the true conclusion, that it cannot be thus considered. The 56th and 57th sections do not apply.

Thus then the estate had not become vested in Watt; there was no resulting trust in him. There was no express valid trust within the section allowing such. The legal estate thus far stood unaffected. Nor can I conceive that there was a power in trust in Mr. Lord under section 58. If this conclusion is correct, then in whom did the lands remain subject to the execution of the trust as a power under section 59? It could be nowhere but in the original piortgagors. But he did not grant the power. 74.) Neither Watt nor the sheriff ever had the title.

But is it a mere power in Mr. Lord? Powers are abolished, except as created-, construed and executed under the provisions of article III. (1 R. S., 732.) A power can only exist, can only come from an owner of land, granting or reserving the power to do something which he himself could lawfully perform. It is an act in relation to lands. (§§ 73-75.) No one made Mr. Lord the grantee of a power. No one capable of attaining some interest in the land, created a power in him.

Uses and trusts, except as authorized by the Revised Statutes, being abolished 45,) and powers existing only under the provisions of those statutes; and there being here no trust, no trust power, and no mere power placed or vested in Mr. Lord, the title, to the land remained unaffected by the instrument of March, 1857, either at law or in equity. It becomes a mere covenant which Watt might have enforced, or obtained damages for its violation. It is an instance of the difference between an equitable interest and an equitable or a legal estate, frequently pointed out by Mr. Locklin. (Analogy between Equitable and Legal Estates, passim.) The conveyance by Mr. Lord to a l)ona fide purchaser, even with full knowledge of the instrument, would transfer a good title, and supersede the covenant in favor of Watt, or any act under it.

But if his request ought to be made, then it appears from the stipulation of counsel, that it was made on the 26th of December; after the day of performance, it is true, viz., the 15th, but before action brought. This would be enough, if properly made before suit brought. It would be enough at the hearing, whatever might be the effect on the question of costs. But my view is, :that the instrument created only an obligation to do the act, and did not prescribe the request as a condition precedent to the validity of a sale or conveyance.

There is another and interesting aspect of this case. Adopting the views that the absolute legal title was in Mr. Lord, unaffected by a legal trust, and that there was no limitation of any legal or equitable estate .in Watt, was there not a power granted by Lord to Watt, by force of the instrument of March, and what was the extent and effect of such .power ?

Here again we are to 'be guided by the statute. It is apparent that there is nothing in the paper which authorizes any alienation by Watt. There is no authority to him to alien, in fee or otherwise, by means of a conveyance, will or charge. Ho absolute power of disposition is given to him. (§§ 76-78, 81-83.) The purchase and conveyance must be derived Bom Mr. Lord. There is no power within any provision of the statute which gives Watt an estate, or of itself binds or affects the estate. He has merely a covenant which enables him, to some extent, to control Mr. Lord’s acts and transfers of the property—when to sell and convey.

My brother Bobertsor has, I think, fully shown that the instrument signed by Mr. Lord was not within the recording act. (2 R. S., 762, § 39.) There is also no evidence of actual notice of its existence, either in Ward, the grantee of Lord, or in Bleakie, the grantee of Ward. If the purchaserwas in possession, and defending his title, the ignorance of his grantor would be a sufficient defense, but it seems to me that even then, knowledge should have been a fact to which evidence should have been given in the cause. But the plaintiff here is in this situation, that without anything in the pleadings, or in the case, to call for evidence to such a matter, and seeking to prevent the title being forced upon him, be is to depend upon the want of notice in a party, when it may hereafter be clearly established. I am not satisfied that his protection is clear on this ground. Bor reasons before stated the judgment must be affirmed.

Affirmance ordered; in which Bosworth, Ch. J., concurred.


author: Robertson, J.

text:
    Heroy et al., Plaintiffs and Respondents, v. Kerr, Defendant and Appellant.
    1. The exclusion of evidence, irrelevant and immaterial as the case stood when it was offered, is not sufficient cause for reversing a judgment, even though it would have been pertinent to the case as subsequently developed, and its rejection", If offered subsequently, would have been erroneous.
    2. Where a cause is tried: by the Court without a jury, a refusal of the Court to pass upon a question of fact not presented by the pleadings, is not the ' subject of an exception reviewable on1 2an appeal from the judgment, if tne Court is not requested to pass upon it before the trial has been concluded and the decision filed.
    3. The omission of the Court to specify in its statement of the facts found, a decision of every material question of fact presented by the pleadings, will not justify a reversal of the judgment, where the case, on the appeal, fails to show affirmatively any erroneous decision of a matter of fact or matter of law.
    4. Every intendment will be in favor of the accuracy of the decision of the Court upon questions of fact within the issue; when there is nothing in the case opposed to the justice of such intendment.
    5. What knowledge of the insolvency of a moneyed corporation, or of a refusal to pay its notes in specie, is necessary to defeat a purchase otherwise Iona fide; and the difference between the effect of insolvency and the refusal to pay evidences of debt; discussed by Robertson, T.
    (Before Bosworth, Ch. J., and Hoffman and Robertson, J. J.)
    Heard, December 10, 1861;
    decided, April 27, 1861.)
    Appeal by the defendant, John Kerr, from a judgment in favor of James H. Heroy, Joseph Struthers and David J. Marriner, the plaintiffs, composing the firm of Heroy, Struthers & Co.
    This an action for damages for the unlawful conversion, by the defendant, of certain personal property claimed by the plaintiffs. The complaint alleges that the defendant caused the Sheriff of Kings county to carry away and sell such property while owned and possessed by the plaintiffs, and that the defendant converted it to his own use. The answer puts in issue the ownership and possession, and avers that the goods were the property of the American Plate Glass Company; it claims also that the Sheriff of Kings county seized and sold them under executions upon judgments in favor of the defendant against such Company which was the conversion complained of. It did not specify any defect in, or matter impeaching the plaintiffs’ title, if they had acquired title.
    The issues of fact were tried May 6, 1860, before Judge Hopfmah, without a jury, and on such trial it appeared by evidence, that the Company mentioned in the answer was incorporated under the General Manufacturing Company Act, and was in operation, manufacturing glass, during the years 1856, 1857 and 1858; that Lewis A. Sayre was its President, and it had also a Secretary. It further appeared that the Company had been embarrassed about six months before June, 1857, owing money to different persons, but principally to its President, which was known to the plaintiffs ; that about June, 1857, Sayre transferred to the plaintiffs • $2,500 of the capital stock of the Company, promising to make it good at par; and that the plaintiffs were in the habit of purchasing glass from the Company. It also appeared that a short time before the 1st of June, 1858, the plaintiffs entered into a negotiation for the purchase of $5,000 worth of plate glass. Sayre then told them that the Company was going to change hands, and those into whose hands it was going to pass wanted to have the plaintiffs’ stock canceled. A few days before the 1st of June, 1858, the plaintiff agreed to purchase such glass at a reduced price, paying half of the purchase money in cash and half by their stock. Sayre told them that the money they would let the Company have, would discharge its indebtedness, except that to himself. The cash payment was made partly in money, partly in notes, and the stock was delivered.- It further appeared that part of the glass so sold was then in the manufactory of the Company, standing against its walls, and part undergoing the process of finishing in ovensthat two orders for it, drawn by the President upon the Secretary, and by him accepted, were ■delivered to the plaintiffs, who commenced to carry it away about the second of June; that they continued removing it until the 5th of that month, when they had carried away about the value of $1,500; that after one o’clock on that day, they commenced placing thereon red labels with their names, occupation and address printed thereon, and continued so placing them until between four and five o’clock in the afternoon, when the glass was levied on by the .Sheriff of Kings county. It also appeared that the glass was sold at one price, by the square foot, and had upon it ■cards containing" the manufacturer’s measurement, and that the plaintiffs agreed to reduce the amount of their purchase from five to four thousand dollars, because it was thought the first amount would sweep away all the glass, and took the labels off a corresponding amount of glass. It finally appeared that the Sheriff who levied on the glass in controversy sold it shortly afterwards by the defendant’s direction, and received from him a bond of indemnity therefor.
    In contradiction of other testimony, the President of the Company, (Sayre,) testified that he bought the glass in question of the Company, at the market price, without any resolution passed to that effect, in satisfaction of a debt due from the Company to him, and he sold it to the plaintiffs. Some witnesses present at the levy testified they did not see the labels on the glass, and that they were at the sale, and did not hear the defendant direct the Sheriff to sell the glass in question, or even see the witness there who testified to hearing such directions. Such testimony was not claimed at the argument to be, nor was it, so preponderating, as to any such points, as to render the decision in favor of the plaintiffs plainly against the weight of evidence,
    The actions in which the levy was made were commenced in Hay, 1858, by service of a summons upon Hr. Sayre and the Secretary of the Company, and judgments were entered by default therein on the 8th of June, 1858. One was on a note made in 1856, payable on demand: no time of demand was stated in the complaint, in such suit. The other was on a claim of the President, (Sayre,) for a balance of account, also due in May, 1858, for nearly $58,000. Rotes of the Company, which had previously lain over, were paid before the 1st of June, 1858.
    On the trial, the defendant requested the Court to hold:
    1st. That the title at the time of the levy was in the Company, and no sale had then been made by it to any one.
    2d. That, if such sale had been made to any one, it was to Sayre, for an antecedent debt, and that the Company was insolvent at the time of the sale, and had refused to pay its notes in specie, and therefore the sale was void.

      3d. That, if the sale was to the plaintiffs, it was void for the same reason.
    4th. That the sale was fraudulent and void, as against the defendant, a creditor of the Company.
    After the decision Avas made and filed by the Judge who tried the cause, the defendant, in some way, which does not appear, requested him to find on the questions of fact, whether the Company was insolvent, or had refused to pay its notes in specie before the transfer to the plaintiffs.
    The Judge, before whom the cause was tried, found, as a conclusion of law, that the plaintiffs were entitled to recover, and that the facts which he was requested to find after such decision Avere not in issue. The only facts found by him were as follows: That the goods in controversy were the Company’s before June 1,1858; that orders were delivered for them on that day, and the next, to the plaintiffs, by the President of the Company; that actual possession of other glass, sold at the same time, had been taken by the plaintiffs, before the 8th of June, 1858; that the plaintiffs had control of, were in the course of removing, and ■ had labeled Avith their names, the goods in controversy; that they paid a valuable consideration therefor, and the sale in question was binding on the Company. The recovery of the judgments, under which the levy was made, the fact of such levy, a purchase of the goods thereupon by the defendant, and his taking possession thereof, with notice of the plaintiffs’ claim, were among the facts found.
    Separate exceptions were filed to the decisions finding the facts so found: an exception was also taken at the trial to the exclusion of the question: “What was the condition of the Company, immediately prior to, and at this time, (the time of the levy,) financially? ” put to Dr. Sayre while under examination, before any evidence had been given of any sale other than that directly from the Company to the plaintiffs, or for any other consideration than the money paid by them, and the stocks surrendered.

      Wm. Britton, for the appellant.

      W. W. Niles, for the respondents.
   Robertson, J.

The admissibility of the question as to the financial condition of the Company, put to its President, as the facts appeared in evidence at the time it was put, requires to be disposed of, before the objections raised to the final decision. At that time, the only sale of which evidence had been given, was one directly from the Company to the plaintiffs for cash, a promissory note and shares of stock, without knowledge on their part of any embarrassments of the Company, except some with which it seemed able to contend and all of which, they were informed, the money they were to furnish could immediately remove, except the debt to the very person who made the sale to them. Ho evidence had then been given of a transfer to the President, to pay a debt due to him, with a second sale by him to the plaintiffs.

The statutory provision, which renders void transfers by corporations who have refused specie payment or contemplate insolvency, (2 R. S., 5th ed., p. 600, § 4,) has been held to be applicable to manufacturing companies, such as the one in question. (Harris v. Thompson, 15 Barb., 62 ; Bowen v. Lease, 5 Hill, 221.) It has also been held, in reference to actual insolvency, under a similar prohibition, that neither its publicity nor knowledge of it by the transforme, is essential to make the transfer void. (Brouwer v. Harbeck, 5 Seld., 589.) But if the terms of the statute in question, embrace sales in the ordinary and legitimate business of such Company, at times when it might be held afterwards to have been on the verge of insolvency and therefore in contemplation of it; it is plain the whole business of the Company would be impeded, because no one would deal with it at such a hazard, and the purpose of the statute incorporating such institutions would be defeated. Even knowledge of the imminence of such insolvency, ought not to prejudice an honest customer, where the insolvency has not actually occurred, or the affairs of the Company remain in the hands of its officers, in the usual course of business, without the interference of a Court. The statute evidently only intended to prevent injurious preferences, as in a similar provision in reference to banking incorporations. (2 R. S., 5th ed., p. 519, § 9.) The transfers to officers and stockholders, prohibited in a previous part of the same section, (2 R. S., p. 600, § 4,) are specified as being for the payment of debts; and such transfers are included, with those to all other persons, in the one clause, by which the act itself is avoided. “ Contemplation of insolvency,” must also mean something more than mere' expectation of its occurrence; it must include provision against its results, so far as the tranferree is concerned, and that can only be applicable where he is already a creditor and the object is to take his debt out of the equal ratable distribution of the assets of the Company, when insolvent.

In this case, as the evidence stood when the question under consideration was put, the plaintiffs had made a Iona fide purchase of wares, in which the Company usually dealt, without knowledge of any other kind of insolvency than that, if any, which was implied in embarrassments, which I shall presently have occasion to show are not sufficient to create the predicament of contemplated insolvency called for by the statute; there was, therefore, no foundation laid for inquiring into the condition of the Company, when the question under consideration was put.

The defendants claimed, in a subsequent part of the trial, the benefit of such statutory prohibition, by calling upon the Court to find that such sale was void for a violation of it, and excepting to its refusal to obey such call. Even then, however, the case had only been varied by testimony tending to show a transfer to Dr. Sayre, and a sale by him to a Zmia fide purchaser without notice; this variation of the aspect of the case would only strengthen it for the plaintiffs, as such sale to a Ixona fide purchaser would, when unassailed, preclude the objection being taken of illegality in the first sale to Dr. Sayre. But behind all these, lies the fact that there was no proof of the insolvency of the Company at the time of the purchase; notes of theirs which had lain over had been taken up. The complaints in the actions in which the judgments were recovered, it is true, state non-payment of debts and evidences of debt, but they were no evidence ag’ainst the plaintiffs, who were no parties to such suits, and who bought the goods in question before the judgments in such actions were recovered; besides which, much the larger claim of the two was that of Dr. Sayre, which had been assigned to the defendant, and which the plaintiffs had good reason to believe would not be used to cripple the Company. Both judgments were entered upon a service of the summons upon Dr. Sayre, who might have had an interest in allowing judgment by default if it would aid to defeat a sale made by him. But, at all events, even if such judgments were admitted in evidence, the mere nonpayment of the debts mentioned in such complaints did not constitute insolvency, within the meaning of the statute in question; the prohibition in the 4th section distinguishes between refusal to pay evidences of debt, and insolvency; (2 R. S., 5th ed., p. 600 ;) so, too, in the statute respecting proceeding in equity to dissolve corporations, to which this may be supposed to refer, the same distinction is preserved. (3 R. S., 5th ed., p. 763, §§ 46, 47.) Insolvency is not a convertible term for a mere refusal to pay, (Cutler v. Sanger, 2 Younge & Jervis, 459 ; 2 Bouv. Inst., 157,) although the latter may be evidence of it. This Company, although embarrassed, had conducted business for eighteen months before the transaction now before us. We have no means of knowing the means, credit or assets of the Company or what they were worth; the value of their property may have far exceeded their indebtedness; it is not until all means and reasonable hopes of raising money to meet it are gone, that statutory insolvency begins; the refusal, therefore, to find that the sale to the plaintiff was void by the statute was fully warranted as matter of law.

But the insolvency of the Company was not one of the issues made by the pleadings, and, therefore, the Judge, before whom the cause was tried, was not bound to pass primarily upon it. After the cause had been tried and the decision was given, the case states a request was made to the Judge to find such insolvency; how, when or where does not appear, whether by private solicitation, or a notice in Court, or on the settlement of the case. It also appears that the Judge refused to pass upon it because it was not in issue: whether this is a good reason or not for the refusal is immaterial, perhaps; it-was in issue, although not-one of the issues made by the pleadings. If it was impor- , taut for the defendant to have such fact, although not in issue by the pleadings, passed upon by the Court, the request should have been made on the trial before the decision, or upon a motion, afterwards, to have the same inserted, or upon the settlement of the case, when the opposite party could be present. There is no reason why such should not be the practice in regard to a trial by a Court without a jury, as well as in regard to one before a referee, as to which it is the established practice. (Van Steenburgh v. Hoffman, 6 How., 492 ; Hulce v. Sherman, 13 Id., 411 ; Renouil v. Harris, 2 Sand. S. C., 641 ; Church v. Erben, 4 Id., 691.) The Code makes no mention of exceptions except on the trial and to decisions on matters of law arising on such trial, and a review of questions of fact is only to be had on a case or exceptions as on a trial by jury. (§ 268.) Great injustice would ensue if a new trial could be had for a refusal to insert in a decision already written and filed, adjudications upon facts not mentioned in the pleadings, without a request before such decision to pass upon such facts. If the refusal to accede to such request was made in court, either upon a motion to insert the determination of the particular fact in the case, or on the settlement of such case, and it was improperly refused, the remedy would be by a motion for a resettlement, or appeal from such a denial as an order on a motion, not by excel)tions it as to a decision on a trial, so as to send the whole case back for a new trial.

But in addition to the supposed error of a refusal to pass upon a particular fact, it has been suggested that the decision of the Judge at Special Term was radically defective for omitting to pass specifically upon some of the issues made by the pleadings: such as, 1st. The direction of the defendant to levy upon and sell the property in question; 2d. The previous ownership of the plaintiffs, or, what is equivalent, the previous sale of it by the Company to them, and the execution and delivery of the orders to them for goods by authority of such Company, with the actual delivery of such goods to, and possession thereof by them ; and, finally, a demand upon the defendants for the goods, and refusal or some other act of conversion. As the decision does not contain any special adjudication of such facts, the question, of course, arises, whether the defendant can take advantage of such omission, either with or without an exception.

The provisions of the Code respecting reports of referees are very nearly identical with those respecting’ decisions by a Court upon a trial by it without a jury. 268-272.) Referees are required to “state the facts found and the conclusions of law separately;” then report on the whole issues becomes the judgment of the Court, and judgment may be entered thereon as on a decision by a Court. In settling a case or exceptions for a review of his decision, he is required briefly to specify therein “the facts found by him and his conclusions of law.” The question then arises, what effect is produced on the judgment by an omission to state material facts, either in the first decision or such subsequent findings.

It has always been held, both before, (Curtis v. Staring, 4 Wend., 199 ; Cafferty v. Keeler, 12 Id., 291 ; Stafford v. Bacon, 6 Hill, 264,) and since the adoption of the Code, (Church v. Erben, 4 Sandf. S. C., 691 ; Renouil v. Harris, 2 Id., 641 ; Van Steenburgh v. Hoffman, 6 How., 492 ; and Hulce v. Sherman, 13 Id., 411, overruling Lakin v. Erie R. R. Co., 11 How., 412,) that omissions in the report of a referee, or in findings of fact by one, could be supplied by motion. In Hulce v. Sherman, (ubi sup.,) it was held that an appeal to the General Term as an appellate court was “not the proper remedy for an omission : the referee had not erred in passing upon the defence, but had omitted to do so.” In Johnson v. Whitlock, (3 Kern., 348,) the Oourt say that if the statement of facts and conclusions of law were imperfectly made, “there was no doubt of the power of the Supreme Court to order a resettlement.” There seems to be no good reason why the decision of a Court without a jury should not be subjected to the same process.

The question whether an appellant is entitled to claim as error, an omission of a Beferee or Judge without a jury, to show that he has passed upon a material fact, or whether he is bound to procure a record, on appeal, which shall show affirmatively that such Beferee or Judge decided erroneously on such fact, has been several times before the Court of Appeals. In Otis v. Spencer, (16 N. Y. R., 611,) the judgment was affirmed because the record did not establish an error, although there was an omission. In Carman v. Pultz, (21 N. Y. R., 547,) there was, as stated by the Court, “an evident omission of important facts in the statement or reportand it was held that those facts must be presumed to have been such as warranted the judgment appealed from; that such reports and statements are not construed with the strictness applied at common law to special verdicts; and that it was incumbent on the appellant so to present the facts upon which the case depends as to show affirmatively that an error had been committed; that, if any recourse was to be had to any presumption, it was only to such as would sustain the judgment. A still more direct and explicit adjudication is to be found in favor of the respondents in the case of Grant v. Morse, decided in the Court of Appeals at their last term, to the effect, “ that a general conclusion of a referee is to be construed as a finding upon all the material questions, though such a finding be not expressed in terms,” and that to found an objection to the omission of the referee to find one way or the other upon a particular question of fact, he should be specifically requested to do so, and an exception taken to his refusal. (22 N. Y. R., 323.) The same principles were applied to the case of a decision by a Judge without a jury, in Viele v. The Troy and Boston R. R. Co., (20 N. Y. R., 186,) where no facts were found by the Judge.

The restoration of section 267 of the Gode to its original condition as regarded decisions by Judges without a jury, by the amendment of 1860, does not affect the question. It is merely directory, as is the requisition that a decision should be filed in twenty days. (Burger v. Baker, 4 Abb., 11 ; The People v. Dodge, 5 How., 47 ; Stewart v. Slater, 6 Duer, 84,) or at the most gives an appellant a right to have such statement inserted, and does not make it error to omit it.

The cases of Astor v. L’Amoreux, (4 Seld., 107,) or Griffin v. Cranston, (1 Bosw., 281,) do not militate against these views. In the first the Oourt of Appeals merely held that this Oourt at General Term had no right to give judgment absolutely for the appellant on a reversal of a judgment at Special Term, unless the respondent could not alter his case on a new trial; and so that case was interpreted in Edmonston v. McLoud, (16 N. Y. R., 545,) subsequently. In the other case, (Griffin v. Cranston,) the Court at Special Term found certain facts, justified by the evidence, and thereupon decided as a conclusion of law, that a transfer of property assailed in such case, was made with intent to defraud creditors This Court held at General Term that such intent had been inferred from such facts as matter of law, particularly as the Court had not stated its inference as a matter of fact, thus bringing it within the principle of Titus v. Orvis, (16 N. Y. R., 617.) It does not appear whether the Court at General Term would itself have inferred such intent from such facts, as matter of fact, but they reversed the judgment at Special Term, because such facts did not sustain such intent as matter of law. This clearly did not involve the question of an omission to pass upon material facts or error; in passing upon them, the decision turned entirely upon a question of law, as applicable to the facts found.

Any evidence of fraud in this case, committed upon the defendant as a creditor of the Company by the plaintiffs and Sayre acting in concert, must be considered apart from the statute prohibiting transfers by insolvent companies, and there is certainly none sufficient to warrant this Court in holding differently in reference to such fraud from what was held at Special Term. If the President misappropriated the property of the Company to discharge his own obligation, it is a matter for which he may be liable to the Company, but it does not invalidate the sale. The worthlessness of the stock delivered, was not proved to have been known, and the President induced the plaintiffs to advance an additional sum. The plaintiffs, without any hurry, removed the goods gradually and openly. There is even evidence that the defendant knew of such removal and stated his only objection to be that it took all the glass. Up to the very time of the levy, the removal continued. I am unable to see in any of these acts, a fraudulent combination between Sayre and the plaintiffs, and they furnish no reason for reversing’ the judgment.

The last objection is that the evidence in the case did not make out a delivery of the goods to the plaintiffs by the Company; it is claimed that until selection, the title by delivery was not complete; that by taking possession at first, of more than was necessary, by marking, the plaintiff did not come into possession under the sale of the quantify sold, until they rejected what they did not wish to retain, which they did not do until after the levy. The case of Crofoot v. Bennett, (2 Comst., 258,) disposes of this objection ; it was there held that the possession of a whole brick kiln by a vendee, out of which he had bought a certain quantity to be selected by him, was a sufficient delivery of the bricks purchased, and enabled the vendee to select them at any time. In this case the plaintiffs took the only possession they could, by exercising acts of control, and putting ón labels to indicate their ownership. There was some little conflict in the evidence as to putting on the labels, but the testimony preponderates in favor of its having been done.

Upon the whole, therefore, there being no error of law or fact committed on the trial or in the decision, the judgment must be affirmed, with costs.

Bosworth, Ch. J., and Hoffmah, J., concurred in affirming the judgment.

Ordered accordingly.