text:
    Isaac Merritt, Plaintiff and Respondent, v. John A. Millard, Defendant and Appellant.
    1. An attorney or agent, who has received from his principal, as a mere messenger or carrier, money to be delivered to a third person, although it be paid in performance of an agreement previously made between the principal and such third person, cannot set up any illegality in such agreement, as a defense to an action brought by the latter tó recover it as money paid to his use.
    2. A mere agency of such defendant in making the original agreement, does not affect his liability. It is not his mere ignorance of such illegality, but the absence of any legal connection between the new promise of the defendant to deliver such money as directed, and the original contract, which precludes him from setting up such a defense.
    (Before Robertson, White and Monell, J. J.)
    Heard, November 11, 1862;
    decided, February 28, 1863.
    This was an appeal by the defendant, from a judgment in favor of the plaintiff, entered on the report of John H. White, Esq., Beferee, to whom the issues in the cause were referred.
    The action was brought to recover the sum of five hundred dollars, paid to the defendant by one Jared Brewster, for the plaintiff’s use. The answer of the defendant took issue on .the material allegations of the complaint j and also set up four other defenses, all of which were adjudged bad on demurrer. That decision is reported in 5 Bosw., 645.
    The remaining issues in the cause were referred to John H. White, Esq.
    The testimony upon the trial showed that the plaintiff held a judgment, which was a lien upon the undivided half of certain lands in Troy, and that one Jared Brewster held a lien on the other undivided half of the same premises. These liens were both subsequent to the lien of a mortgage upon the premises, which was held by another person; and upon a foreclosure of the mortgage, and at the time of the premises being offered for sale under it, the attorney of Merritt, the plaintiff in the present action, was present among others, and also Jared Brewster and John A. Millard, the present defendant, who was Brewster’s attorney. The defendant asked Brewster, his client, if he would pay five hundred dollars, if Merritt, the present plaintiff, would not bid; he said he would.
    The defendant then, as agent for Brewster, agreed with Merritt’s attorney that the latter should forbear to bid, and that Brewster should pay the latter therefor that sum Accordingly Merritt’s attorney made no bid, and Brewster bid off the property. Brewster subsequently asked the defendant if he would pay the plaintiff’s attorney, to which he replied he would. Brewster then said he would pay him (defendant) and sent him a check tor four hundred and forty-seven dollars, which, with a small sum due to Brewster from the defendant, was enough to pay the plaintiff. The estimated cash, value of one-half the surplus of the proceeds of the sale, above the mortgage, was five hundred dollars. The defendant, on one occasion, had admitted that he had got the money from Brewster for the plaintiff. The defendant, being examined as a witness, denied that the money was sent him to pay the plaintiff, or for plaintiff’s use, and testified that the money was paid to him in consideration that he undertook to pay the plaintiff’s attorney the five hundred dollars.
    The defendant moved for a nonsuit, on two grounds. 1st. That the money was not paid to the defendant for the plaintiff’s use. 2d. That the money was paid to him for his own use, in fulfillment of a contract made with him. This motion was denied.
    The Referee, by his report, found that Jared Brewster paid to the defendant five hundred dollars to the plaintiff’s use, which the defendant promised to pay to the plaintiff; and, in such report, the Referee referred to an opinion annexed for the reasons of such finding. The Referee also adjudged that the defendant was indebted to the plaintiff in that sum, with interest.
    The Referee, in his opinion, argued that he could, not consider the illegality of the original contract, because the defendant had not set it up affirmatively in his answer.
    The defendant filed exceptions to the report, and also to various statements in the opinion, and he appealed from the judgment.

      J. A. Millard, defendant, appellant; —
    Insisted that the contract between plaintiff and Jared Brewster was against public policy, illegal and void; not voidable, but void; and could not be enforced against either party to it, nor against any person connected therewith, nor against any person acting thereon, with notice or knowledge of the illegality of the contract between the contracting parties. (Citing Farmer v. Russell, 1 Bos. & P., 296; Thalimer v. Brinckerhoff, 20 Johns., 397; and this case, 5 Bosw., 645; De Groot v. Van Duzer, 20 Wend., 397; Steers v. Lashley, 6 T. R., 61.)

      Robert Christie, Jr., for plaintiff, respondent; —
    Cited, Tenant v. Elliott, (1 Bos. & P., 3;) Owen v. Davis, (1 Bailey, 315.)
   By the Court—Robertson, J.

The only question upon the Beferee’s report is whether, upon the facts which he was entitled to find, and those he has found, his judgment can be sustained. The opinion annexed to his report is only referred to therein for the reasons for his finding the single fact contained in his report, and they seem amply sufficient to sustain it. The resolution not to consider the question of the illegality of such contract contained in such opinion, and the reasons given therefor, are immaterial, as they form no part of the report. If, under the issues and evidence, he was not bound to take it into consideration, it is immaterial whether his reasons for refusing it be right or wrong. It certainly formed no part of the conclusions of law in the case, that the pleadings did not warrant the inquiry into such illegality. Without considering that question, therefore, I shall examine whether the evidence shows the receipt by the defendant of five hundred dollars for the plaintiff’s use, which he was bound to pay over.

The defendant admits that he received the money, and agreed to pay a like sum; he claims that the latter was a personal agreement, and the former was the receipt of money to reimburse him. He does not explain why he received the money and retained it, before he paid the same sum, nor why his scruples as to the contract only arose after he had induced the plaintiff to abstain from bidding. His principal seems to have believed that it was long since jjaid over in fulfillment of his contract. Even if a critical analysis of the testimony of the defendant warranted such a construction of it, and it was not contradicted, the Eeferee was justified in rejecting what seemed to be a mere device, and finding that the defendant received the money to pay it over.

Without questioning the over refinement of reasoning which makes an agreement not to attempt to buy certain specific property void, as against public policy, although a man may make a valid agreement not to deal in articles of a certain kind, within fixed limits, and assuming that a party who has a lien on, but no means to buy property sold for a prior lien, cannot sell his right to bid to protect 1 himself; the mere messenger or carrier of the price, it seems to me, cannot set up such a defense. It is true the defendant, as agent, made the original agreement, but he was no party to it, derived no benefit and suffered no loss . from it, as in the case of Farmer v. Russell, (1 Bos. & P., 296.) It formed no part of that agreement that Brewster should pay the defendant the five hundred dollars for the plaintiff. The promise, by the defendant, to pay, arose from the subsequent receipt of the money for the purpose. The Eeferee seems tq have inferred from the language of the Court, when this case was formerly before it, (5 Bosw., 645,) that the decision was put on the ground that the defendant had no notice of the illegality of the agreement. This appears to have been said simply to show the entire want of connection, by the defendant, with the original transaction. (See p. 650.) The cases of Armstrong v. Toler, (11 Wheat., 258,) and Hodgson v. Temple, (5 Taunt., 181,) cited to support the opinion, were decided without reference to knowledge, and were put entirely upon want of legal connection. I am satisfied that the former decision controls the facts as they now stand.

The judgment must be affirmed, with costs.


source: Caselaw Access Project

author: By the Court—Monell, J. Robertson, J.

license: Public Domain

text:
    Thomas Scott, executor of John D. Simes, deceased, Plaintiff and Respondent, v. Mary Elizabeth Simes Defendant and Appellant.
    1. Where a husband takes a security, causing it to be made payable to his wife, and retains possession of it, but without doing any act tending to defeat the right of the wife to an absolute property therein, no actual delivery by him to her is necessary to complete the gift to her, but his possession of the security is to be deemed” her possession, and upon his death it belongs to her absolutely, and not to his estate.
    2. Thus, where the defendant’s husband, in his lifetime, took promissory notes for moneys due to him, in her name, expressing, to her his intention that the fund was to be a gift to her, and kept the -notes for a time in a secretary to which she had access, and subsequently deposited them with his firm for safe keeping during his absence from home, without ever making any' actual delivery to her, and collected the interest from time to time;

      Held, that upon his death the notes belonged to her, and his executor could not recover the possession thereof from her.
    3. An executory contract, if it be made in the wife’s name, or the joint names of herself and husband, survives to the wife by force of its mere form, without reference to any supposed assignment or delivery by him to her. (Per Robertson, J.)
    (Before Robertson, White and Monell, J. J.)
    Heard, November 7, 1862;
    decided, March 3, 1863.
    This was an appeal from a judgment in favor of the plaintiff, on a verdict recovered on a trial before Mr. Justice Monorief, without a Jury, in April, 1862.
    This action was brought to recover possession of two promissory notes detained by the defendant, and which the plaintiff claimed constituted a part of the estate of his testator.
    The notes were dated, respectively, April 1, 1854, and January 1, 1857; one for six thousand dollars and the other for five thousand dollars, and were each payable to the order of Mrs. Mary Elizabeth Simes, the defendant, who was the wife of the plaintiff’s testator.
    The action was tried by the Court, without a Jury, and the Judge found, among others, the following facts:

      That in the lifetime of John D. Simes, the testator, Sarah Simes, his sister, became indebted to him in the amounts of the said two promissory notes, and thereupon made and delivered the same to him;
    That the interest accruing upon said notes was paid to said John D. Simes up to January 1st, 1860;
    That the notes continued in the possession of said John D. Simes until his decease;
    That John D. Simes died about June, 1860, leaving the defendant, Mary Elizabeth Simes, his widow, and two infant children, him surviving, having previously made his last will and testament;
    That after the decease of the said John D. Simes, the said two promissory notes came into the possession of the defendant, his widow, by finding the same;
    That the defendant still retains possession and claims to be the owner of the said notes, and refused to return the same upon the demand of the plaintiff.
    Upon these facts the Justice adjudged that the plaintiff was entitled to a return of the notes; or, if a return could not be had, to judgment for the amounts thereof, with interest.
    The defendant, who was examined as a witness, testified, without objection, that the first she knew of any arrangement with regard to the notes was at the time of the purchase of a house in Fifth avenue, in consideration of which they were given, when Mr. Scott, (the plaintiff,) told her he had proposed to Mr. Simes to make the notes payable to her; that he, (Simes,) intended to give the amount to her; that she mentioned to Mr. Simes what Mr. Scott had told her, and he, Simes, said it did not originate with Mr. Scott, that it was his own intention. She further testified that the uotes were kept in the secretary in the family sitting room; that the children’s bank books, his will, and other notes, and railroad securities, were kept in the same place; that Mr. Simes and herself each had a key to the secretary, but she could not say in what part of the secretary he kept the notes, because she did not care to know, though he supposed she did know; that shortly before going south, (whither he went for the benefit of his health, in March, I860,) he took from the secretary a package, which, he said, contained his will; he said it had been sealed up, but that he had opened it to put inside some notes belonging to the witness and the children ; that the "notes he referred to were his sister’s notes for six thousand dollars and five thousand dollars; that he said he would seal the package up and put it in the safe at the office.
    She further testified, that the day before her husband’s death, by his request, she sent for the package, he intimating a desire to alter his will; that it was brought to her, and that she put it in a trunk, where it remained until after his death; the package was subsequently opened by Mr. Scott, who returned to her the notes, telling her to keep them, as he could do nothing, or had nothing to do with them.
    She further testified that Mr. Simes told her that in his will he had not given her money outright to hold; that he made several attempts to explain the will or its contents to her, but that she was never willing to know them; that he told her he had given her outright a handsome sum. She also testified that there was nothing for her except the two promissory notes.
    On her cross-examination, she stated that she had seen the notes before her husband went South ; that he showed to her the payments of interest on the back of them; that he "handed them to her, saying, Sarah has paid up her interest.
    Leopold Huffier, a witness for the plaintiff, testified that he was a partner of Simes ; that before Simes went South, he brought the package to the store and put it in the safe; that, upon receiving a request from the defendant, he took the package to Simes’ house, but that it was not opened; that he found Simes unable to do anything, and he gave the package to Mrs. Simes.
    The defendant excepted to the conclusions of the Judge, and appealed from the judgment entered thereon.

      Daniel Lord, for defendant, appellant.
    I. These facts are established without any question.
    1. That the notes were taken in the name of the wife, by the husband’s procurement. And that he intended the notes as a gift to her.
    2. That the custody of the vouchers was with the same original purpose; that it was not in exclusion of it; that it was in connection with other papers which he held for others, and with the acknowledgment that he held them for her.
    3. Moreover, the custody of the securities was «such as the husband always has of choses in action appertaining to his wife, and usually has of securities for her separate estate.
    II. The obligation survived to her. (Cheekly v. Cheekly, 2 Shower, 247; Day v. Pargrave, reported by Dampier, J., in his opinion in Philliskirk v. Pluckwell, 2 Maule & Sel., 396; Gaters v. Madeley, 6 Mees. & W., 425; Howard v. Okes, 3 Wels., H. & G., 136; Scarpellini v. Atcheson, 7 Ad. & El., (N. S.,) 864; Allen v. Wilkins, 3 Allen, (Mass.,) 321; Gibson v. Todd, 1 Rawle, (Penn.,) 455; Borst v. Spelman, 4 N. Y. R., (4 Comst.,) 284.) So held, also, in the case of obligations to husband and wife jointly. (1 Rolle Ab., 342; Bar. & F., D.; Id., 349, citing Yr. Bk., 43 Ed. III, 10; Demlyn v. Browne, Moore, 887; Coppin v. —, 2 P. Wms., 496; Christ’s Hospital v. Budgin, 2 Vern., 683; Dalton v. Midland Railway Co., 20 Eng. L. & Eq., 273, per Jervis, Ch. J.; Richards v. Richards, 2 B. & Ad., 447; Reeve Dom. Rel., 132.)
    III. There was no reducing of the chose in action into possession, so as to defeat the wife’s survivorship.
    1. The distinction between choses in action and other chattels, personal, is well established. (Co. Litt., 351, b.; Richards v. Richards, 2 B. & Ad., 447.)
    2. The custody of the securities by the husband is not a reducing into possession.
    3. Hor is the receiving of interest by the husband.
      (Hart v. Stephens, 6 Ad. & El., N. S.,] 937; Scarpellini v. Atcheson, 7 Id., 864; see 1 Roper H. & W., 208, ch. V., § 4.)
    4. The delivery of the note to the husband made it an executed gift on his part.
    5. As a voluntary settlement, there was enough to constitute it a valid delivery in favor of the wife. (Clavering v. Clavering, 2 Vern., 473; Boughton v. Boughton, 1 Atk., 625; Garnans v. Knight, 5 Barn. & Cress., 671; Scrugham v. Wood, 15 Wend., 546.)
    IV. A gift from husband to wife, even when invalid, at law, is valid in equity, if the intention be clear. (Borst v. Spelman, 4 Comst., 284; Lucas v. Lucas, 1 Atk., 270; Fisher v. Filbert, 6 Barr, 66; Mews v. Mews, 21 Eng. L. & E., 556; rule recognized.)
    2. The intention here to make a gift, is' entirely clear and repeatedly expressed, and is the only explanation of the taking the notes in the wife’s name. (See Beeve Dom. Eel., 132.)

      G. C. Goddard, for plaintiff, respondent.
    1. The notes did not become the property of the wife by the principles of the common law applicable to gifts, for there was no delivery. (3 Kent’s Com., 6th ed., 435, 438 ; Harris v. Clark, 3 Comst., 113; Huntington v. Gilmore, 14 Barb., 243 ; Newfville v. Thompson, 3 Edw., 92.)
    2. The defendant did not acquire any title to or property in the notes in equity.
    The evidence does not establish the fact,' in such manner as a Court of equity requires, that the husband had given the notes to his wife and made them her property. (3 Edw. Ch., 92; McLean v. Longlands, 5 Ves., 71; Walter v. Hodge, 2 Swan., 92; Mews v. Mews, 21 Eng. L. and Eq., 558.) Without delivery the transaction is not valid as an executed gift. (Harris v. Clark, 3 Comst., 113; Van Deusen v. Rowley, 4 Seld., 358; Gilchrist v. Stevenson, 9 Barb., 13 Brown v. Brown, 23 Id., 565; Hitch v. Davis, 3 Mary. Ch. 266.)
    If any presumption arises of an intention to set apart these notes, as a provision for the wife, from the fact of their being drawn payable to her, this is rebutted by the other facts of the-case; namely, that the husband kept control of the notes; that he never delivered them to his wife as her property; nor treated them as such; but received and used the interest as if he regarded the notes as his own.
    With the aid of this presumption the case of defendant is not brought by the evidence within the rule above referred to, as to what shall constitute sufficient evidence of a gift from husband to wife.
    The question of a right by survivorship as of choses in action of the wife not reduced to possession, does not arise, until it is established that the notes belonged to her.
    ¡Nor can it be said that the gift was conditional and future, to take effect if not revoked, on the death of the husband, as a donatio mortis causd. Of this it had not the requisites. (Harris v. Clark, 3 Comst., 121.)
    ¡Neither law or equity recognize a third class of gifts, which are neither gifts in presentí, nor gifts causd mortis.

    A gift must be the one or the other. If in presentí, the property, is then vested and in the control of the donee from the moment the gift is made.
    If it is to wait the donor’s death to determine whether it vests, it must have the requisites of a gift mortis causd; or the formalities of a last will; or of a noncupative will.
    The right of survivorship in a wife applies only to choses in action which have once vested in her, involving no question of gift from the husband.
    There are no considerations of policy which should lead to the adoption of a rule in such cases, less carefully guarded, or of less certainty than the one above cited. A departure from such rule would leave no rule.
   By the Court—Monell, J.

There can be no doubt, from the evidence in this case, that Simes intended to make a gift to his wife of the two promissory notes. The circumstance of his taking the notes payable to the order of his wife, would of itself sufficiently indicate the intention to make the gift. But if this were not so, the evidence of Sirs. Simes, which was not objected to, and which is nowhere contradicted, relieves the case from any doubt on that subject. She testifies to his declared intention to make the gift, and the adoption of the particular form in svhich it was made, was as effectual to consummate his design as if it had been given to her out and out by his will.

Had the notes been delivered to her by her husband, and continued in her actual possession until his death, no one would question the completeness of the gift, or that she could hold them as against his representatives.

The Justice has found, as a fact, that the notes continued in the possession of Simes until his decease, and that after his decease they came into the possession of the defendant by finding.

The question, then, to be determined, is whether the continued possession of the notes by the husband, during his life and until his death, prevented the gift from taking effect.

There never was any actual delivery of the notes to the defendant during the life of her husband, unless the delivery testified to by the witness Huffer can be so considered. They were taken by Simes, the consideration moving from himself, and were always in his custody. He could, at any time, have received the money and discharged the obligation, or he might have prosecuted the maker and collected the amount. Had he done so, the money would have been absolutely his, and his wife could have had no claim whatever upon him, or upon his representatives. But he did not do so. He exercised no exclusive act of ownership over the notes, but suffered them to remain intact, merely receiving the accruing interest to a period shortly previous to his death.

The possession by the husband of the wife’s choses in action is the possession of the wife. At law they are one person, and the possession of herself is always that of the husband. (McNeill v. Arnold, 17 Ark., 154; Lee v. Matthews, 10 Ala., 682.)

No actual delivery to the defendant was necessary to constitute it an executed gift. The taking the security in her name constituted the gift, and its retention in his custody was a delivery to her.

In Wilde v. Wilde, (cited in 1 Bright’s H. & W., 32,) Lord Elder said, the purchase of stock by the husband, in the joint names of himself and wife, was prima facie a gift to her in the-event of her surviving, unless evidence was produced of eotemporaneous acts, showing a contrary intention. And Bright says, (p. 32,) the wife may take from the husband, by purchase made by him in her name, or in their joint names, which will be presumed to have been intended as a gift and advancement to her, and on surviving her husband she will be entitled.. (Kingdome v. Bridges, 2 Vein., 67; Glaister v. Hewer, 8 Ves., 199.)

In Day v. Pargrave, (cited in 2 Maule & Sel., 396,) Lee, Ch. J., held that when a bond was given to the wife during coverture, no action will lie for it by the wife solely; but they may have a joint action during their lives, or the husband may bring such action during coverture in his own name; yet if he does not, it survives to the wife.

In Gaters v. Madeley, (6 Mees. & W., 423,) a promissory note was given to the wife during coverture. Parke, B. says: “When a chose in action, such as a bond or note, is given to a feme covert, the husband may elect to let his wife have the benefit of it; or if he thinks proper, he may take it himself; and if, in this case, the husband had in his lifetime brought an action upon this note in his own name, that would have amounted to an election to take it himself, and to an expression of dissent on his part to his wife’s having any interest in it. On the other hand, he may, if he pleases, leave it as it is, and in that case, the remedy on it survives to the wife.”

In Scarpellini v. Atcheson, (7 Adol. & El., N. S., 864,) the plea was that the note was given to the wife, and that the husband “ elected to take and have the said note in his marital right.” On demurrer, it was held that it was to be considered rather as the legal conclusion from the facts stated, than as an averment sufficient in itself, and the plea was overruled.

In Christ's Hospital v. Budgin, (2 Vern., 683,) the husband had lent out money in the names of himself and wife, upon bond and mortgage taken in their joint names, and she was regarded as a joint purchaser and entitled to the securities by survivorship.

In Dummer v. Pitcher, (5 Simons, 35,) the husband transferred two sums of bank annuities into the names of himself and wife, and died in her lifetime. It was held that , the wife surviving her husband became absolutely entitled to the stock, there being nothing to show that the husband intended that the transfers should have any operation but what they legally had.

In Nash v. Nash, (2 Mad. C. C., 133,) the father of a married woman had drawn a check on his bankers for £10,000, in favor of his daughter, which she presented at the bank and took from them a promissory note for the sum, payable on demand, and gave it to her husband. He afterward applied to the bankers for £1,000 of the money, which was paid to him, and he received the interest on the remainder during his life, but never was paid any more of the principal. He died and his wife survived him. A bill was filed praying that the'£9,000 might be declared to be part of his personal estate, but the Vice Chancellor held that the note survived to the wife.

In Roman Catholic Orphan Asylum v. Strain, (2 Bradf., 34,) the husband deposited $1,400 of his own money, and took a certificate of deposit in the joint names of himself and wife. This was held to be prima facie a gift by the husband to the wife, in case she survived him, and that not having been disturbed in his lifetime, it became, on his decease, the absolute property of the wife.

All the cases to which we have here referred, clearly establish the right of the wife to take by survivorship, in cases where the security is taken in the joint names of the husband and wife. One of them, Nash v. Nash, and the text from Bright’s H. & W., applies the same rule where the security was taken in the name of the wife alone.

It would be difficult to discover a difference between the two cases. Where the husband, intending to make the gift, takes the security in her name, instead of their joint names, it furnishes stronger and more satisfactory evidence of the intention; and the fact that it remained undisturbed by him, is proof of the irrevocability of the gift, he not having done any act tending to defeat the right of the wife to an absolute property in the notes after his death. The receipt of the accruing interest by the husband was not an appropriation of the principal. In Burr v. Sherwood, (3 Bradf., 85,) it was held that the receipt of dividends on stock standing in the name of the wife, only reduces the dividends into possession, and not the stock. And see Nash v. Nash, (supra.)

Upon a full consideration of the facts in this action and of the cases to which I have referred, it appears clear to me that this was a gift to the wife; that the delivery, so essential to a valid gift, was complete; that the possession by the husband was the possession of the wife, and that he not having done any act signifying a different intention, or by which he revoked the gift and regained the property, upon his death the notes became absolutely her’s.

Upon this view, it follows that the learned Justice erred in his conclusion that the plaintiff was entitled to a return of the notes, or to a judgment for their amount.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Robertson, J.

The civil status of a married woman is not lost, but only in abeyance during marriage. In equity she always could have' a separate status from her husband’s ; and she now has, at law, in this State. Husbands, in equity, have always been capable of being trustees for their wives, and contracts could always be made with married women jointly with their husbands, or separately, to be enforced by their husbands during the marriage, or by the wife afterward. Thus in Day v. Pargrave, (cited in 2 Maule & Selw., 396,) Ch. J. Lee held that an action on a bond to a wife survived to her after her husband’s death. In Gaters v. Madeley, (6 Mees. & W., 423,) Parke, B., held the same doctrine in regard to a promissory note to a wife In Scarpellini v. Atcheson, (7 Ad. & El., N. S., 864,) a plea of an election by a husband to take a note to his wife in his marital right, was held bad. In Christ’s Hospital v. Budgin, (2 Vern., 683,) a bond to a husband and wife was held to survive to the wife. In Nash v. Nash, (2 Mad. C. C., 133,) a promissory note to a married woman was held to survive to her, though she had delivered it to her husband, and he had received part of the sums due on it and interest to his death. In Roman Catholic Orphan Asylum v. Stiam, (2 Bradf., 34.) a certificate of deposit in favor of a husband and wife, was held to survive in favor of the latter.

These cases show that a married woman is not disabled from being the beneficiary of a promise during coverture; she is merely a promisee for her husband’s benefit during his life, if he chooses to enforce it. But if he neglects to do it, the moment she becomes sui juris by the termination of the matrimonial relation, she can enforce her rights in her own name.

It is by force of the form of the contract in such cases, that the married woman is entitled, after her husband’s death, to the performance of it in an action at law, and not by virtue of any supposed assignment of it by her husband to her. The doctrine of gifts of chattels or choses in action in his name, is entirely different. In such cases equity must step in to enforce and complete an imperfect gift. Where a complete trust and trustee is created by a writing, there can be no doubt that, if a married woman is the cestui que trust, she has a right to the proceeds, but the action must be in the name of the trustee.

In the case of an executed transfer of stock or chattels, it may be necessary to have recourse to the presumption of an intended gift by the husband, by taking it in the joint names of himself and wife. (Per Ld. Elden in Wilde v. Wilde, cited in 1 Bright, Hus. & W., 32; Kingdome v. Bridges, 2 Vern., 67; Glaister v. Heever, 8 Ves., 99; Dummer v. Pitcher, 5 Simmons, 35.) An executory contract by its mere form survives to the wife, when made in her name, or the joint names of herself and her husband.

There was but one mode of putting an end to the wife’s right, which was by the husband’s reducing the chose in action into possession in his life. The receipt of the mere interest is not sufficient for the purpose. (Burr v. Sherwood, 3 Bradf., 85; Nash v. Nash, ubi sup.)

I concur in the view that judgment should be given for the defendant, with costs.


author: By the Court—Robertson, J.

text:
    Robert B. Millikin, Plaintiff and Respondent, v. Maria L. Dehon, Executrix of the last will and testament of Theodore Dehon, deceased, Defendant and Appellant.
    1. A pledgee is entitled to notice of the time and place of sale of the thing pledged, unless his right thereto has been waived or surrendered by consent.
    2. A stipulation in the agreement of pledge, that the pledgee “ may sell at public or private sale, or otherwise at his option,” does not authorize him to sell at private sale without giving the pledgor such previous notice of time and place.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 1, 1862;
    decided, March 14, 1863.
    The action was brought to recover the value of certain cotton pledged by the plaintiff to the defendant’s testator, and alleged to have been sold by the latter without authority, and in violation of the rights of the plaiutiff.
    The cause came on to be tried before Mr. Justice Moeell and a Jury, on the 13th and 14th days of February, 1862. The following facts appeared:
    In ¡November, 1860, the testator of the defendant (Mr. Dehon) lent the plaintiff $7,000, and took storage receipts from him for 130 bales of cotton, to be held as security for the repayment of the loan. The plaintiff stated the terms upon which such cotton was delivered, in a simultaneous letter, inclosing such storage receipts. After stating, in such letter, the inclosure of the storage receipts and an invoice of the merchandise, and also its value, ($8,450,) the plaintiff added, “I consign this to you for sale, and on this consignment would like an advance of $7,000 (being about 10f cents per lb.) on your note, at sixty days from date, with the understanding that, on the 4th day of January next, I will pay you in cash, less five days’ interest, the above amount, (say $7,000,) with one per cent commission for the loan of this advance ; and, in default of so doing, the right is hereby given you of selling this merchandise at public or private sale, or otherwise, at your option, for the most it will bring; and the same right is to be exercised by you, should a decline occur in the market value of said merchandise, and I fail, whenever demanded, to deposit in cash sufficient to cover such decline; so that at all times you may have a margin of 14 cents per lb.” The letter then provided for an additional commission in case of a sale by reason of default, with charges; any surplus to be paid to the plaintiff, and he to make good any deficiency.
    The actual weight of the cotton was proved to be such as to make the advance above 114 cents per pound, and the margin of 14 cents would increase that to nearly 124 cents per pound. On the 26th of December, 1860, the defendant’s testator sold it on the usual credit, at private sale, for 114 cents—being the highest price obtainable for it in such a mode of sale, and a fair market price therefor.
    Conflicting evidence was introduced of a demand or notice to the plaintiff’s agent by the defendant’s testator, before his sale of the cotton, requiring a further payment or margin. The authority of such agent was also the subject of contradictory testimony. The agent was also proved to have asked for time in which to make further deposits, or give a further margin before the sale ; which the defendant’s testator refused.

      It was proved that the plaintiff was aware that samples of the cotton were in the office of the broker by whom the sale was made.
    The Court left the question of the authority of the agent to receive a notice or demand to make the margin good, and the question of the fact of such notice or demand, to the Jury; and instructed them that if they found such authority and demand, and it was not complied with, their verdict should be for the defendant. To this instruction the plaintiff’s counsel excepted.
    The plaintiff’s counsel also requested the Court to charge that the notice to redeem should have been given to the plaintiff personally, and also that notice of-the sale and its time, place and manner should have been given, which the Court refused, and the plaintiff’s counsel excepted to such refusal.
    The Jury found a verdict for the defendant, and judgment was suspended until the exceptions were heard and disposed of at General Term. •

      E. W. Stoughton, for the plaintiff; —
    Cited, Stearns v. Marsh, (4 Denio, 227;) Wheeler v. Newbould, (16 N. Y. R., 392;) Wilson v. Little, (1 Sandf. S. C. R., 351;) Same case, (2 Comst., 443; Cortelyou v. Lansing (2 Caine’s Cases in Error, 200; 2 Kent’s Com., marg., p. 581, 583;) Brown v. Ward, (3 Duer, 660; 1 Parsons on Cont., marg., p. 621, &c.;) Dykers v. Allen, (7 Hill, 497.)
    S. B. Eaton, for the respondent.
   By the Court—Robertson, J.

In this case the Jury found for defendant, and upon the questions of the fall in the value of the cotton, so as to require a payment of part of the advance, as well as the notice to, or demand upon, the defendant’s agent, and his authority to receive it, and the evidence is sufficient to sustain such finding. But the graver question remains, whether the plaintiff was entitled to notice of the mode, time and place of sale.

Until the cotton was actually sold to repay the advances upon it, the plaintiff had a right to redeem, it, and, when it was so sold, to use every means to have it bring the highest price, by diffusing knowledge of the sale, and procuring competitors for the purchase, unless he surrendered those rights by express contract. The necessity of judicial proceedings to warrant the sale of pledged property, which were at first required, arose from the indulgence of the law to the pawnor, so as to permit him to redeem the property at the last moment, before it was sold; or, if he could not, to use Ms efforts to have it bring the best price it could. His remaining interest or equity of redemption entitled him to that intervention, in the act of sale, which was to deprive him of it. A public sale was required to insure the benefit of competition, but notice of its time and place was also required. The law did not assume, merely by the sale being public, the property would necessarily bring the highest price, without the aid of the pawnor.

When mere notice of the sale was allowed by law, as a substitute for judicial proceedings, the right of the pawnor was still preserved, in his being entitled to notice of the time and place, so as to give him an opportunity to redeem or to procure purchasers. (Hart v. Ten Eyck, 2 Johns. Ch., 62 ; Opinion of Kent, J., Cortelyou v. Lansing, 2 Cai. Ca., 200; Garlick v. James, 12 Johns., 146; Stearns v. Marsh, 4 Den., 227, per Jewett, J.; Wheeler v. Newbould, 16 N. Y. R., 392; Marfield v. Goodhue, 3 Comst., 62; 2 Kent’s Com., 581, 583, [marg. paging,] 7; 1 Parsons on Cont., [marg. paging,] 621.) Any defect in the length of the time of notice or objection to the place of sale, may be waived, Willoughby v. Comstock, (3 Hill, 389,) otherwise reasonable notice must be given; and although a notice may be waived by contract, a demand must be made after the debt becomes due, before a sale can be made. (Wilson v. Little, 1 Sandf., 351; 2 Comst., 443.)

Of course all or any of the pawnor’s rights can be waived or modified by consent, including notice of the time and place of sale. There is, however, no express waiver of such notice in the case before us. But it is claimed that it was waived impliedly and virtually, by the permission to sell at public or private sale, at the defendant’s option. This is undoubtedly so, if a private sale is incompatible with notice of the time and place of sale; in other words, whether giving notice of a private sale is impossible, or so highly impracticable as to defeat the object of the .sale, because that would substantially take away the right of election. There does not appear, in this case, to have been notice given of even an election to exercise the power to sell privately, instead of publicly, which is usual where a right of election exists. At all events, such evidence, if it existed, was withdrawn from, the consideration of the Jury. From all that happened, it does not appear that the plaintiff had any reason to know when or how the defendant’s testator intended to sell the cotton, or how much time he would have to make efforts to redeem or to procure purchasers. Virtually, from the time that the defendant’s testator gave notice that he intended to sell, the property became his, so far as any right of the plaintiff to redeem was concerned. Perhaps it would not always be very convenient to give notice to a pawnor of an intended private absolute sale to a particular purchaser, because it could not always be determined when the negotiations were to be closed. Still, a conditional agreement with a purchaser to buy, to be closed at a certain time, if the pawnor did not redeem, might be made, and notice given to the latter of such time, and that the sale would be closed unless he redeemed by that time, paying- the debt and interest, and expenses of making such sale. Possibly, in such case, the uncertainty of the sale might make the terms of sale less advantageous to the pawnor, but he would have no right to complain, as he himself conferred the right of selling privately. Xotice might also be given of the day of sale, and, if it was to be made by an agent, of his agency, and then the pawnor would know his latest time to redeem, and where to send purchasers. Changing the mode of sale does not necessarily deprive the pawnor of all means of preventing a sacrifice of Ms property; and, however much of the trouble and expense of a public sale a pawnee may be relieved from, by authority to sell privately, if his authority only extends to change the mode of sale, and he is not relieved from giving notice, he is still bound to give the pawnor an opportunity to redeem his pledge before he is foreclosed. The privilege must be taken and exercised with the burden.

These principles evidently governed this Court in the decision in Andrews v. Clerke, (3 Bosw., 587.) In that case, the defendant had certain stock of the plaintiff, as security for certain advances, and it was agreed, as in tMs case, that in case of a fall of the market value, which the plaintiff was bound to watch, if the plaintiff did not repay enough of the advances to leave the stock a good security for the residue, the defendant might sell such stock at the Hew York exchange board, a private association of persons dealing in the buying and selling of stocks in the Oity of Hew York. There was no waiver of notice in the agreement between the parties. After a fall in the price of the stock, it was sold at such board at the highest market price of the day of sale, leaving the plaintiff in debt for a deficiency of such price, in repaying such advances. This Court held that “ the defendant could not lawfully sell the stoclc, without first notifying the plaintiff of the time and place of sale,” even if it had been the duty of the latter to furnish further security on the morning of the sale. They further held, that the authority to sell conferred no power which the law had not granted to every pledgee, in case of a default in paying the debt., (referring to the cases of Stearns v. Marsh and Wilson v. Little, ubi sup., who seek to sustain the position,) and no more than every power to sell contained in a mortgage, which does-not provide how or when a sale shall take place; and the Court then added: “ It will not be pretended, in such a case, the mortgagee could, by a private sale, without notice to the mortgagor, cut off his equity of redemption.”

That case is precisely similar to this, as regards the question, in all substantial characteristics. In both the cases the debt became due on the failure of the borrower to bring it within a certain distance from the market value of the stock or property pledged. In that, the sale was to take place at the board of brokers, which is to a certain extent, private, as the public can only compete at it by employing one of the members, and are not present at its sittings. The difficulty of giving notice of a sale at that board would be nearly as great as at a private sale. There is no announcement made there of the ownership of the stock sold, and the owner of it could not collect bidders to attend and offer for it, unless they employed one of the members. Hotice of the time of sale, however, was as essential in one ease, as in the other the right to have an opportunity to redeem. A private does not necessarily become a secret sale, depriving the owner of the equity of redemption, of all knowledge of both time and place of sale. The law only requires a reasonable notice in case of a private sale. The day may be fixed, and a period allowed within which the sale is to be made on that day. Even in a public sale, the moment of sale is not fixed by the notice, or expected to be adhered to. In this very case, the property was in the hands of the testator’s agents for ten days after the demand of an additional deposit. If the property had, during that time, risen in value, so as to leave sufficient margin, could the defendant’s testator have sold without notice, at any future time, on account of the previous failure to keep such margin ? Or, would not the plaintiff, after such rise, if he did not receive any notice of sale, rather have had a right to presume that there was no intention to sell ? It seems reasonable that he should.

The sale, under the power to sell to reimburse advances, was therefore irregular, and afforded no protection to the defendant’s testator from liability for the value of the property. The original agreement, however, contains a clause that the plaintiff “ consigned such merchandise to the defendant’s testator for sale” generally. It does not appear very clearly, from the testimony, what the nature of the business of the parties was, except, that once before, the defendant’s testator had shipped goods for the plaintiff, to a house in Liverpool, for sale, on which the former made advances and conducted the correspondence. An extra commission of one per cent was allowed in this case, for the advances, and an additional commission in case of a sale on default, and customary charges. Unless some duty was to be performed, in reference to the goods, such commissions would seem to have made the" contract usurious, which is not to be presumed. If the defendant’s testator sold under a general authority as a factor, he would not be responsible, except for indiscreet sales ; but there was no evidence of any such authority, and the charge and verdict did not proceed on that ground.

The verdict, therefore, should be set aside, and a new trial ordered, and judgment reversed on such verdict, with costs to abide the event.

       We are informed that, upon appeal to the Court of Appeals, this decision was reversed.


author:
Barbour, J.
      Bosworth, Ch. J.

text:
    Sarah Brainerd, Plaintiff, v. The New York and Harlem Railroad Company, Defendants.
    1. Bonds of railroad companies and other corporations, payable to A. or his assigns, and assigned by A. in blank, are transferable by delivery; and a purchaser of such a bond, suing the obligors thereon, need not, in the first instance, give evidence to connect his purchase with the payee’s blank assignment.
    2. Thus, where the plaintiff, in such an action, produced the bond with an assignment in blank indorsed thereon, and proved that she purchased it in the market some time after the date of such assignment, and had owned it ever since:

      Held, that in the absence of any evidence to the contrary, she was to be presumed to be the rightful owner, and might recover without any proof connecting the purchase with the assignment by the payee.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.
    Heard, December 8, 1862;
    decided, March 14, 1863.

      This action was brought to recover the amount of a sealed bond for $1,000, with interest coupons- annexed, issued by the defendants, and payable to Edward Bement or his assigns. The bond was underwritten : “ For value “ received, I assign this obligation to -. Wit- “ ness my hand and seal, this 18th of June, 1851.
    “E. BEMENT.” (Seal.)
    The bond thus underwritten was purchased by the plaintiff in the market.
    The cause was tried on the 28th day of May, 1862, before Mr. Justice Monele and a Jury.
    The only defense made upon the trial was that the bond was a specialty, and that the fact of its being assigned in blank did not make it negotiable by delivery, and that some connection must be shown between the payee and the plaintiff.
    The Court overruled this objection, and directed the Jury to find a verdict for plaintiff for $l,057rofio, subject to the opinion of the Court at General Term.

      S. Crittenden, for the plaintiff; —
    Cited, Hubbard v. N. Y. & Harlem R. R. Co., (14 Abb. Pr., 275;) 1 Pars. on Cont., 240; Edw. on Prom. Notes, ; 21 How. U. S. S. Ct. R., 575; 4 Duer, 480; 4 Barn. & Ald., 1; 3 Barn. & C., 45; 3 Kernan, 599 ; 7 Bing., 284; 3 Amer. Law Reg., 423; Id., 1 N. S., 290; 7 Cow., 174; Bank of Rome v. Village of Rome, (19 N. Y. R., 20.)

      C. W. Sandford, for defendants.
    I. The bond declared upon is a specialty under seal, payable to Bement or his assignees, and subject to all the incidents applicable to such instruments.
    II. The plaintiff did not show any title in herself to this bond. It is not pretended that it was assigned to her by Bement. The allegation is, that it was transferred from hand to hand, like bank notes, by mere delivery.
   Barbour, J.

The general rule in regard to the transfer of sealed obligations of corporations, as well as those of governments, has been much relaxed of late years. Thus we find in Wookey v. Pole, (4 B. & Ald., 1,) an exchequer bill, payable to blank, was held to be payable to the holder; and in Georgier v. Mielville, (3 B. & Cres., 45,) a like decision was made as to a bond of the Prussian government, payable to whomever should be the holder. It was proved that they were daily sold in the market, and passed from hand to hand like exchequer bills. Ch. J. Abbott said it was precisely analogous to a bank note payable to bearer, or to a bill of exchange indorsed in blank. In our own courts, bonds of states and corporations, payable, with coupons annexed, to the bearer, have repeatedly been held to be negotiable instruments, of which the title would pass by mere delivery. (State of Illinois v. Delafield, 8 Paige, 527; S. C. in Ct. of Errors, 2 Hill, 159; Fisher v. Morris Can. Co., 3 Am. Law. Reg., 423; Gould v. Town of Sterling, 1 Am. L. Reg., [N. S.] 290.) In the case of White v. The Vt. & Mass. R. R. Co., (21 How. U. S. R., 575,) bonds had been issued by the company, payable in blank, the name of no payee being inserted; and the plaintiff, before suit brought, filled the blank with his own name. Justice Nelson, in delivering the opinion of the Court, said: “As to the negotiability of this class of securities, when shown to be intended that they should possess this character by the form in which they are issued, and mode of giving them circulation, we think the usage and practice of the companies themselves, and of the capitalists and business men of the country dealing in them, as well as the repeated decisions or recognitions of the principle by Courts and Judges of the highest respectability, have settled the question.” * * “ Until the plaintiff chose to fill up the blank, he is to be regarded as holding the bonds as bearer, and held them in this character till made payable to himself or order.” So, too, in Mechanics' Bk. v. N. Y. & N. Haven R. R. Co., (reported in 4 Duer, 480,) where an assignment of stock, and, in the same instrument, a power of attorney to transfer, were executed in blank as to the name of the transferee and attorney, it was held that the holder of the certificate had the right to fill the blank with his own name. In the Court of Appeals, Judge Comstock said: “ It is common to deal in this manner in the stock of corporate compar nies; and I do not say that any rule of law or of public policy is violated by it. The dealer unquestionably acquires an equitable title to the stock of his vendor.” (p. 579.)

This decision overrules that in Hibblewhite v. McMorine, (6 Mees. & Wels., 200,) as does White v. The Vt. & Mass. R. R. Co., the case of Enthoren v. Hoyle, in Exchequer Chamber, (13 Com. B. R., 373.)

We see no distinction, in principle, between the two American cases last cited and that now under consideration. Aside from judicial determinations in other cases, we cannot ignore the fact that bonds of railroad and other corporate companies, issued and payable, or assigned in blank, are daily transferred and passed from hand to hand here, by mere delivery, to the amount of millions. Thus much we are bound to know of the current commercial transactions of the country in which we live. Considering this fact, and that the obligation in this case is of the same general character as the bonds thus circulating in the market, it must be presumed that the company designed that the title should pass by delivery alone; or, in other words, that they should be negotiable by delivery; and it is equally to be inferred that the payee named in the bond intended, by his assignment in blank, to accomplish the same object; and it follows that, under the decisions last mentioned, the defendants are legally liable to the holder of the bond. Even if this were otherwise, however, we should have no hesitation in holding that the plaintiff, who has, in good faith, purchased the paper in open market, where the payee named therein must have permitted it to be placed, stands, in equity, in the place of such payee, and is equitably entitled to all his remedies as against the obligors.

The plaintiff is, therefore, entitled to a judgment upon the verdict.

Bosworth, Ch. J.

The pleadings admit that the defendants made the bond sued on. In terms, it is payable to “Edward Bement, or his assigns.” At the foot of it is a writing, as follows, viz.: “ For value received, I assign this obligation to - Witness my hand and seal this 18th day of June, 1851. E. Bement. [l. s.]”

It was admitted at the trial that E. Bement’s signature was genuine, and was that of the payee and assignor named in the bond.

Enough was shown to establish, prima fade, that he sold and assigned it to some one, on the 18th of June, 1851.

George W. Brainerd (af the trial, which was on tfye 28th of May, 1862,) testified thus: I know the plaintiff; I am her son and agent; I bought for her the bond in suit, shown me, about eight or ten years ago; she has owned it ever since, and is the owner now; it is wholly unpaid; the interest, as appears from indorsement on the bond, is paid to August 1st, 1861. There is due to the plaintiff, upon it, the principal, one thousand dollars, and interest from August 1,1861.”

Ho objection was made to this evidence, and he was not cross-examined.

The only objection taken by the defendants was “ that the fact of its (the bond) being assigned in blank does not make it negotiable by delivery, and that some connection must be shown between said payee and the plaintiff”

Every purchaser taking a delivery of the bond, even without a written assignment of it, would thereby acquire the title of his vendor. The fact that it may not be negotiable in the sense that a note payable to bearer, or to order, and indorsed in blank is, interposes no obstacle to acquiring a title to it by purchase from the true owner.

It was proved that Bement, the payee, sold and assigned it, between ten and eleven years before the trial; it was not proved to whom he sold it. It was also proved that the plaintiff bought it eight or ten years before the trial, and had owned it ever since, but it was not proved of whom she bought it.

It is a presumption of law that a person in possession of property is the rightful owner of it, when nothing appears or is shown, tending to disprove that fact.

This rule is applicable to real estate and to chattels.

The plaintiff having proved a sale of the bond by the payee named on it, and an assignment of it, in blank, and a purchase of it by her, and as is fairly inferable from the testimony, possession as such purchaser, with a claim of ownership for eight or ten years prior to the trial, the only just inference is that no other person has, or pretends to have, or during these eight or ten years has claimed to have, any property in it.

And there being nothing shown, or attempted to be, to overcome or rebut this inference, the plaintiff was entitled to a verdict.

Reaching this conclusion, is not carrying the doctrine of presumption to the extent that it was enforced in Fatman v. Lobach, (1 Duer, 354.)

It is not necessary to hold that a third person, being the true owner, could not reclaim the bond from the plaintiff, even if she were a bona fide purchaser. But all fair and reasonable presumptions, on the case as presented, are that she owns the bond.

The plaintiff should have a judgment on the verdict.