text:
    JOHN F. HALSTED Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Juror, challenge to the favor. History of trial try jury.

    A juror who has made up his mind against a party to the action and whose opinion against that party is so strong that it would require evidence to remove it,,does not stand indifferent and is incompetent.
    Before Freedman and Truax, JJ.

      Decided June 27, 1890.
    Appeal from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action is one of the usual actions brought by an abutting property .owner against the defendant. The facts sufficiently appear in the opinion.

      Davies & Bapallo, attorneys and of counsel, for appellant, on the question considered in the opinion, aro-ued :
    There is no doubt that the juror brought a prejudiced mind to the trial of the issues of fact in this case. He had formed an opinion which it would require testimony to remove. Under the old common law rule this was an undoubted disqualification. People v. Vermilyea, 7 Cow. 108, 121 ; People v. Mather, 4 Wend. 229; Freedman v. The People, 4 Den. 35 ; Blake v. Millspaugh. 1 John., 316 ; Smith v. Floyd, 18 Barb. 524 ; People v. Muldon, 3 Lans. 224; Cancemi v. The People, 16 N. Y. 501; Lord v. Brown, 5 Den. 348 ; Blake v. Millspaugh, 1 John, 316. By Ch. 475, Laws of 1872 ; Code Crim. Pro. § 376, the common law rule was changed as to criminal trials and a juror who has formed an opinion or impression on the merits of the case is disqualified to set unless things concur: 1st. He must declare on oath that he believes that such opinion or impression will not influence his verdict. 2d. He must declare also on oath that he believes he could render an impartial verdict according to the evidence. 3d. And the court must be satisfied that he does not entertain such an opinion or impression as would influence his verdict. People v. Casey, 96 N. Y. 115, 119 ; Balbo v. People, 80 lb. 484 ; Cox v. People, 80 lb. 500 ; People v. Cornetti, 92 lb. 85 ; People v. McQuade, 110 lb., 298, 300. It will be observed that the juror Tailer nowhere swore that he believed such opinion or prejudice would not influence his verdict. All he could swear to, was that testimony could, if sufficiently cogent, remove the prejudice. Under the ruling in the McQuade case, 110 N. Y. 298, he would have been incompetent even in a criminal case, where the full modification of the common law rule effected by ch. 475, Laws of 1872, could be claimed. It is settled, however, that this modification is limited to criminal prosecutions. In civil cases the common law rule applies with unrestricted force. Young v. Johnson, 46 Hun, 164. In the McQuade case, 110 N. Y. 300, Andrews, J., sums up his elaborate review of this branch of law in these concise terms: “There has been no change .in the fundamental rule that an accused person is entitled to be tried by a fair and impartial jury.” He also disposes of the contention that so long as the challenging party has any peremptory challenges unexhausted he cannot press his exception to the court’s refusal to sustain his challenge for cause.

      Roger Foster, attorney and of counsel, for respondent, on the question considered in the opinion, argued :—
    The challenge to the juror was properly overruled. Mr. Tailor testified that he had formed an opinion “as to the effect of the elevated railroad upon property in narrow streets through which it passes,” and that he thought it damages the property in narrow streets;” that this opinion was not founded upon knowledge, but upon what he had been told by others ; that he was capable of deciding this case upon the evidence, and of giving an impartial verdict independent of what he had heard before the' trial; that he would “ observe the rule of law that the burden is on the plaintiff; ” that he had formed no opinion “as to the extent of the injury done the accused in dollars, in cents, or to an37 extent,” and then continued, “ I only know from what I have heard ; my own opinion—I don’t know—I believe —I do not know ” ; “ I believe that the defendant is a wrongdoer as respects this property. I didn’t know anything about it.” In other words he merely concurred with the Court of Appeals in its decision in Story’s case, Drucher’s case, McGeans case, &c. To hold him disqualified would be to disqualify every man of common sense and common honesty from serving as a juror in this class of cases. In Short v. The People 4 Parker’s N. Y. Criminal Reports, 71, 109, which was decided in 1858, long before the law of 1872,' which removes certain grounds of disqualifications of jtnors in criminal cases, the Monroe general term said: “It is important to understand what is meant by an opinion which operates thus conclusively to disqualify a person as a juror. We say it is an opinion which is absolute, unconditional, definite and settled ; in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be, for the time being, settled and at rest upon the question of the prisoner’s guilt, or upon the question to be tried. Nothing short of this will, per se, render the juror incompetent in law upon a chailenge for principle cause founded upon an allegation that he has formed an opinion. This is the good sense of the rule and according to the current authorities. Freeman v. The People, 4 Den, 1 ; The People v. Bodine, 1 lb. 281 ; The People v. Honeyman, 3 lb. 121 ; Durell v. Mosher, 8 Johns, 347." In that case the challenged juror testified on direct examination: “ I think I have an impression as to the defendant’s guilt or innocence. I rather think I have formed an opinion ; I presume I have expressed it; I think I retain it.” On cross-examination : “ I formed an opinion that these accounts were true.” On re-direct: “I - rather think I believed the accounts true ; it might or might not require evidence to remove my impression of the defendant’s guilt.” To the court: “ I did not arrive at a definite opinion." It was held that the challenge was properly overruled. This case is cited with approval by Judge Thompson in his work on Trials, where he says at § 78 : “ The opinion concerning the merits of the case on trial which disqualifies the service-men, must be a fixed, settled, absolute, positive, decided, substantial, deliberate or unconditional opinion ”; citing many authorities. McKinney v. Long Island R. R., S. C., Gen. Term, 2d Dept., July 2, 1889, 6 N. Y. Supp. 168, 169; Pratt. J: “ The challenge to the juror Dorrien was properly overruled. The juror stated that, notwithstanding his sympathies, he could render an impartial verdict upon the evidence.”
   By the Court.—Truax, J.

One of the jurors was examined touching his qualifications as a juror and testified in substance, as follows : That he knew Division street in the city of New York (the street on which the property was situated) ; that he had formed an opinion as to the effect of the elevated railroad upon property in narrow streets through which the railroad passes ; this opinion was against the road ; that he thought it damaged property in narrow streets ; that it would require evidence to remove from his mind that opinion; that he came to the trial of this case with the opinion in his mind that the property owner had a just claim against the railroad, and that it would require evidence on the part of the railroad to remove that opinion ; that this opinion was founded upon information that he had received from friends of his who lived on these narrow streets and from the fact that houses have rented for very much less since the railroad than before ; that he had no personal knowledge of the facts, but that he should assume if he had property there that he would have lost something ; that he would not care to live on a street where the railroad passed by the house ; that if the defendant could prove to him that the premises mentioned in the complaint were worth more now than before the road was built he would not give a verdict against the road, but that unless the defendant satisfied him that it had not injured the property, he would give a verdict for the plaintiff; that he came to the trial with the opinion in his mind that the plaintiff was entitled to recover unless the defendant produced evidence sufficient to remove that opinion. In answer to certain question's put to him by counsel for plaintiff, he said that he thought that he would be capable of deciding this case on the evidence independent of what he had heard before the trial and give an impartial verdict upon the evidence ; that he was aware that by the law he would be obliged to disregard what he had heard and go upon the evidence ; that his mind was not so firmly made up that he would give a verdict contrary to the evidence, but that he came there prejudiced against the road ; that this prejudice could be removed with evidence ; that he could free his mind from that prejudice when he began to hear the evidence, and that he could observe the rule of law that the burden of proof is on the plaintiff; that he had not formed any opinion as to the extent of the injury done measured in dollars and cents ; that he had often expressed the opinion that the defendant was a wrongdoer as respects this property, but that he did not know anything about it.

The challenge of the defendant was overruled, the juror accepted, and the defendant duly excepted.

When trial by jury first was begun in England, it was the custom to take jurors who were acquainted with all of the facts, and it was not until trial by jury had obtained for some length of time, that persons who were unacquainted with the facts were called as jurors. They were not sworn as witnesses, but they were placed on the jury, and those other persons who were unaquainted with the facts, if any such there were on the jury, were removed from it. After a while this method of trial by jury went out of custom. It is difficult to determine when it was that persons who were totally ignorant of the facts of the case were first called to serve upon the jury. But in the time of Fortescue, says Hallam in his “ Middle Ages” (Vol. II. page 379) whose treatise “ De Laudibus Legem Anglia’'’ was written soon after 1450, we have the clearest proof that the mode of procedure before jurors by viva voce evidence was the same as at present. The following passage from Fortescue is then cited by Hallam : “ Twelve good and true men being sworn in as in the manner above related legally qualify, that is, having over and besides their movable possession in lands sufficient wherewith to maintain their rank and station, neither suspected by or at variance with either of the parties, all of the neighborhood, there shall be read to them in English by the court the record and nature of the plea at length which is depending between the parties and the issue thereupon shall be plainly laid before them concerning the truth of which those who are so sworn are to certify to the court, which done each of the parties by themselves or their counsel in presence of the court, shall declare and lay open to the jury all and singular the matters and evidences whereby they think they may be able to inform the court concerning the truth of the point in question, after which each of the parties has a liberty to produce before the court all such witnesses as they please or can get to appear on their behalf, who being charged upon their oaths shall give in evidence all that they know touching the truth of the facts concerning which the parties are at issue, and if necessity so require the witnesses may be heard and examined apart till they shall have deposed all that they have to give in evidence so that what the one has declared shall not inform or induce another witness of the same side to give his evidence in the same words or to the very same effect. The whole of the evidence being gone through the jurors shall confer together at their pleasure as they shall think most convenient, upon the truth of the issue before them, with such deliberation and leisure as they can well desire, being all the while in the keeping of an officer of the court in a place assigned them for that purpose, lest any one should attempt by indirect methods to influence them as to their opinion which they are to give into the court. Lastly, they are to return into court and certify the justices upon the truth of the issue so joined, in the presence of the parties, if they please to be present, particularly the person who is plaintiff in the cause. What the jurors so certify, in the laws of England is called the verdict.” Fortescue De Laudibus C. 26.

It is to be noted that the procedure on trial by jury as given by Fortescue,.is substantially the same as that which now obtains.

Fortescue in chap. 25 tells how a jury is to be impanelled and then goes on to say that “being so impanelled and appearing in court, either party may except against any particular person; as he may at all times, and in all cases by alleging that the person so- impanelled is of kin, either by blood, or affinity, to the other party ; or in some such particular interest, as he cannot be deemed as an indifferent person to pass between the parties, of which sort of exceptions there is so much variety as is impossible to show in a small compass. If any one of the exceptions be made to appear to the court to be true and reasonable, then he against whom the exception is taken shall not be sworn, but his name shall be struck out of the panel. In like manner shall be done with all the rest of the panel, until twelve be sworn so indifferent as to the event of the cause, that neither of the parties shall have reasonable matter of challenge against them.”

Coke says that the principal challenges to the poll may be reduced to four heads. (1). For respect of honor ; (2). For want of default; (3). For affection or partiality; (4). For crime or delict. That the causes of favor are infinite, and that the rule of law is that the juror must stand indifferent as he stands unsworn. Coke upon Littleton, 156b, 157b.

In the case of McKinney v. The Long Island Railroad, 6 N. Y. Supplement, 168, to which our attention was called by the counsel for the respondent, the court said that the challenge to the juror was properly overruled; the juror stated that notwithstanding his sympathies he could render an impartial verdict upon the evidence. It will be noticed that in this case the juror had but sympathy for the plaintiff. And the court also said (and to this the counsel did not call our attention) that the juror stood on the extreme limit of competency. Now, if this juror who had only sympathy, stood on the extreme limit of competency, it seems to us that a juror who had made up his mind against the defendant and whose opinion against the defendant was so strong that it would require evidence to remove it, is not on the limit of competency but is beyond it and is not competent. The juror did not stand -indifferent to the parties.

It was said by Judge Beardsley in Freeman v. The People, 4 Den. 35, that if triers “ find that bias actually exists in the mind of the juror, although it is proved only by the formation of a hypothetical opinion, they may, and ought to, reject him. Some minds are so constituted that such an opinion would exert a controlling influence in the jury box, while with others its influence would be neither seen nor felt * * * * the triers must find that the juror stands impartial and indifferent, or they should reject him.” See also Blake v. Millspaugh, 1 John. 316 ; Pringle v. Hulse, 1 Cow. 433 and note at p. 436; Coleman v. Hagerman, cited and commented on in Ex parte Vermilyea, 6 Cow. 564, and in the People v. Mather, 4 Wend. 243.

We are of the opinion that the judgment and order should be reversed and a new trial ordered with costs to the appellant to abide the event.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Couet.—Tbttax, J.

license: Public Domain

text:
    DORETTA R. MORIARTY, by Guardian, Respondent v. JEREMIAH J. MORIARTY, Appellant.

      Alimony and counsel fees in actions against the husband for a divorce a, vinculo matrimonii, rule as to granting, when not granted.

    Alimony is not granted as matter of course in actions by the wife against the husband for divorce a vinculo matrimonii, nor are counsel fees.
    The wife, in order to obtain either alimony or counsel fees, must present a case to the court showing that she has a fair prospect of success in the action.
    Where the charges of adultery are made on information and belief, and the husband positively denies them, she does not present such a case.
    Before Freedman and Truax, JJ.

      Decided June 27, 1890.
    Appeal from an order directing the payment of alimony and counsel fees.
    The facts sufficiently appear in the opinion.

      Peter Mitchell, attorney and of counsel, for appellant, on the questions considered in its opinion, argued:—
    It is clearly apparent that the plaintiff has failed to establish by legal proof, or by circumstances tending to fairly establish such proof, the fact of defendant’s adultery. And it is hardly necessary to urge the well established and elementary principle that “ hearsay evidence is no evidence,” and is irrelevant and inadmissible. Lund v. Tyngsborough, 9 Cushing Rep. 36.

      George F. Martens, attorney and of counsel, for respondent, on the questions considered in the opinion, argued :—
    I. In actions for divorce the court has power to make an order requiring the husband to pay alimony and counsel fees, and the amount of the allowance is in the discretion of the court, and is fixed after a full consideration of all the facts and circumstances in the case. Code Civil Procedure, 1769 ; De Llamasas v. De Llamasas, 62 N. Y. 618 ; McBride v. McBride, 53 Hun, 448 ; 15 Abb. (N. S.) p 307 ; Leslie v. Leslie, 11 lb. (N. S.) 311 ; Kennedy v. Kennedy, 73 N. Y. 373 ; Beadleston v. Beadleston, 103 lb. 402 ; Brinkley v. Brinkley, 50 lb. 184 ; Gilbert v. Gilbert, 5 N. Y. State Rep. 822 ; Winton v. Winton, 12 Abb. (N. S.) 159.
    II. The facts shown by plaintiff on her application for alimony and .counsel fees were such as to entitle her to the relief sought.
    III. The allowance for alimony and expenses in an action for divorce is within the discretion of the court of original jurisdiction, and unless so gross and excessive as to show an abuse of judicial discretion, the order granting it is not reviewable in the Court of Appeals. De Llamasas v. De Llamasas, 62 N. Y. 618.
   By the Couet.—Tbttax, J.

The action is brought to obtain an absolute divorce on the ground, of the adultery of the defendant. Alimony and counsel fees will not be granted in every action for divorce a vinculo brought by a wife against her husband. The plaintiff is bound, said the Court of Appeals in Collins v. Collins 71 N. Y. 275, to present a case to the court showing that she has a fair prospect of success in the action. In the action at bar no such case was presented. The moving papers do not contain a single allegation relating to the adultery of the defendant worthy a moment’s consideration by a court of justice. There are many vague statements in the moving papers to the effect that plaintiff had learned that defendant was living with a woman who claimed to be his wife ; that other affiants had ascertained that defendant was keeping house with a woman who was known in the house and who was reputed to be the wife of the defendant ; that on one occasion one of the affiants was informed by this woman that she had been living with defendant for two years and had occupied the same bed with him the night before, but we are not told from whom plaintiff obtained this information, and the statement that plaintiff had learned that defendant was keeping house with a woman is not an allegation that defendant was in fact keeping house with a woman. This court has lately held in the case of Martin v. Gross, 56 Super. Ct. 512, that a general assertion of a fact upon information and belief proves nothing. In the case before us it does not even appear that plaintiff believed what she “ascertained” or was “ informed ” about the defendant, and the defendant and his alleged paramour deny that they were living together as husband and wife or that they occupied a bed as above stated. Í think that the rule to be followed in cases of this kind is well stated in Monk v. Monk, 7 Rob. 153 ; that alimony and counsel fees will not be granted in an action of this kind where all the charges of adultery on the part of the husband are made on information and belief, if the defendant positively denies the charges.

Order appealed from reversed and the motion for alimony denied without costs, with leave to plaintiff to renew motion.

Fbeedmab, J., concurred.


author: By the Court.—Truax, J.

text:
    ELI HYMAN, Appellant v. BOSTON CHAIR MANUFACTURING COMPANY, Respondent.

      Eviction of tenant, what will constitute—Quiet enjoyment, covenant for implied; breach of covenant when.

    It is enough to constitute an eviction of a tenant, that he yields possession to the person having legal title, or to the person who has been adjudged to be entitled to the possession, he need not wait to be forcibly ejected.
    A covenant for quiet enjoyment will be implied in a verbal lease for a definite term.
    A breach of such covenant occurs where the lessee is evicted by one having a superior right to both him and his' lessor.
    Before Truax and O’Gorman, JJ..

      Decided June 27, 1890.
    Appeal from a judgment dismissing the complaint. The action was brought, to recover damages for the breach of a covenant for quiet and peaceable enjoyment under a lease.
    On or about the 6th day of August, 1888, plaintiff entered the premises mentioned in the complaint under a verbal lease with the defendant, which lease was to expire on the first day of May," 1889. The plaintiff remained in occupation of the premises until about the 9th day of November, 1888. On that day and after he had paid the rent for the month of November he was served with a copy of a precept requiring him forthwith to remove from the premises mentioned in the complaint. The summary proceedings were instituted by the superior landlord of the plaintiff and of the defendant. Both plaintiff and defendant were made parties to the summary proceedings. They resulted in a final order and judgment awarding the possession and the delivery of the premises to the superior landlord ; and thereupon, after the entry of the judgment, the plaintiff surrendered the premises.

      Samuel F. Hyman, attorney and of counsel, for appellant,
    cited Home Life Ins. Co. v. Sherman, 46 N. Y. 370.

      Benjamin E. Hall, attorney and of counsel, for respondent,
    cited Waldron v. McCarty, 3 Johns. 471 ; Koitz v. Carpenter, 5 lb. 120 ; Kerr v. Shaw, 13 lb. 236 ; Whitbeck v. Cook, 15 lb. 485 ; Mead v. Stackpole, 40 Hun, 473 ; Peck v. Knickerbocker Ice Co., 18 lb. 183.
   By the Court.—Truax, J.

It is not necessary, in order to constitute an eviction, that the tenant be dispossessed or deprived of the demised premises' by process of law. It is enough if the tenant yield the possession of the premises to the person having the legal title thereto, or to the person who has been adjudged to be entitled to the possession of the premises. American & English Encyclopedia of Law, Vol. VII. p. 36, and cases cited.

The rule to be gathered from all the authorities, said the Court of Appeals in Home Life Insurance Company v. Sherman, 46 N. Y. 373, and which accords with good sense, is that when a judgment of a competent court has determined that a tenant shall' deliver possession of demised premises to a particular person, he need not wait to be forcibly ejected but may acquiesce in the judgment of the court and voluntarily obey its mandate.

It would be unreasonable to insist that plaintiff should have remained in the premises until he had actually been dispossessed by a marshal and.his property put out on the sidewalk. There was a judgment of a competent court, made in a proceeding to which both plaintiff and defendant were parties, that determined that the premises should be delivered to a person who had a better right to them than either plaintiff or defendant had. Plaintiff obeyed that judgment, and by so doing was evicted and the covenant of quiet enjoyment was broken.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Gorman, J., concurred.


author: By the Court.—Freedman, J.

text:
    GEORGE T. SMITH, Respondent v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      Negligence, damages for personal injuries sustained therefrom.— Contributory negligence, exceptions to charges and refusals to charge the jury.

    The only exceptions in this ease for consideration by the general term of the court, were taken by the defendant to the refusal of the court at trial term to dismiss the complaint at the close of plaintiff’s case, and at the close of the whole case, and to the charge of the court and the refusals to charge otherwise, as requested by the defendant’s counsel.
    Upon the question of the contributory negligence of the plaintiff, Held, that the case was clearly one for submission to the jury, and the instructions of the court upon this point carefully guarded every right of the defendant.
    The charge of negligence made against the defendant presents a grave question for consideration, namely, the right of the defendant to keep and maintain in its depot yard a switchstand unused and useless, and unlighted at night, with its handle projecting and the rails leading thereto spiked,- of which no information was given to the plaintiff, an employee of defendant in said yard, and against which plaintiff collided in the dark, and was severely injured, while exerting himself to obey the order of the defendant to uncouple a car from a train passing through the yard. The question of negligence of the plaintiff, in keeping and maintaining said switchstand, was submitted to the jury as one of fact under all the circumstances, and the court refused to charge the jury, as matter of law, 1st. That defendant had the'right to maintain the switchstand in the position and condition it was in at the time of the accident, 2nd. That the defendant did not owe to the plaintiff any duty to remove the switchstand in question.

      Held, that these refusals to charge did not constitute error, nor was it error on the part of the court to refuse to dismiss the complaint on the several motions of defendant’s counsel.
    Before Freedman and Truax, JJ.

      Decided November 3, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

      Page & Taft, attorneys, and Henry W. Taft of counsel, for appellant.

      Thomas P. Wielces, for respondent.
   By the Court.—Freedman, J.

The defendant, by stipulation, has waived all exceptions appearing in the record except the exceptions taken to the refusal to dismiss the complaint, both at the close of plaintiff’s case and the close of the whole case, and to the charge of the court and the refusals to charge otherwise. The exceptions so remaining raise the question whether, under the circumstances of the case, there is any liability whatever on the part of the defendant.

The action is for a personal injury alleged to have been sustained in consequence of the negligence of the defendant. In every such case the plaintiff must prove that he was wholly free from contributory negligence on his part and that the injury complained of was the result of defendant’s negligence exclusive of any other primary cause.

Upon the question of plaintiff’s contributory negligence the case was clearly one for the jury upon the evidence, and the instructions given to the jury upon this point carefully guarded every right which the defendant had. This branch of the case is so free from doubt that discussion in detail is wholly unnecessary.

But the charge of negligence made against the defendant presents a grave question. At the time of the injury which occurred at about a quarter before six in the afternoon of the 20th of December, 1888, at the Harlem River freight yard of the defendant, the plantiff had been employed as a car coupler and brakeman in said yard for only about two weeks. The plaintiff then and there received an order by means of a signal to make a cut (i.e. to uncouple a car from other cars) upon a train of cars which was being moved in the yard. The plaintiff was then standing upon the ground and the cars were moving so swiftly that he was unable to make the cut as they passed him. He therefore ran after them in order to get hold of a handle attached to one of the cars and in this way to get up on the platform of the car. He evidently intended to do the uncoupling while standing on the platform of the car, since he could not do it safely from the ground. It had become dark and the plaintiff held a lantern in his left hand out in front of him and about on a height with his shoulder, so that he could see the handle by which he intended to raise himself up to the platform. He had his right hand up ready to catch the handle and just as he was in the act of grasping ■it, he came into collison with the handle of a switch-stand. The handle ran into his leg and he was seriously injured. The switchstand was not in use at the time, and useless in the condition it was. The defendant at the trial admitted that the rails to which the switch was attached, were spiked so that the switch could not be used. As to the length of time during which the switchstand had not been used, the testimony of witnesses varied from four weeks to six months. The yard covered many acres of ground and in it were upwards of sixteen miles of railroad tracks. There were also quite a number of switchstands some of which were at the time in question lighted, while others were not. The switchstand in controversy was not lighted and plaintiff testified that he did not know of its existence. The trial judge charged, at defendant’s request, that the defendant did not owe to the plaintiff the duty to light the switch in question or to take him to the switchstand and point it out to him. The only thing then left upon which negligence could be predicated, was the maintenance of the switchstand in the position it was at the time with its handle projecting and the rails spiked, and the question was submitted to the jury as one of fact under all the circumstances of the case. . This disposition of the question was in accordance with the decisions in Plank v. N. Y. Central & Hudson R. R. R. Co., 60 N. Y. 607, and Fredenburg v. The Northern Central Railway Co., 114 lb. 582. That being so the refusal to charge that, as matter of law, the defendant had the right to maintain the switch in question in the position in which it was at the time of the accident, and the refusal to charge that, as matter of law, the defendant did not owe to the plaintiff any duty to remove the switchstand in question, did not constitute error. Nor was it error to refuse to dismiss the complaint.

The exceptions remaining available to the defendant under the stipulation referred to having been found to be untenable, the judgment and order should be affirmed with costs.

Truax, J., concurred.


text:
    MARTIN ECKHARDT, Respondent v. SIMON EPSTEIN, et al., Appellants.

      Action to recover the possession of personal property purchased from the assignors of plaintiff under fraudulent representations.—Referee, his findings of fact must be sustained by the evidence.

    The appeal in this ease turns upon the question whether there is sufficient evidence to sustain the findings of fact made by the referee. Held, that the record shows that there is sufficient evidence to sustain the same. The evidence was capable of the construction which the referee placed upon it and, upon the whole case, we cannot say that the preponderance of the evidence is the other way. For these reasons a reversal cannot be had on the. sole ground that we might have reached different conclusions if the issues had been submitted to us as trial judges in the first instance upon the evidence disclosed by the record. The referee saw the witnesses on the stand and was able to ■ notice their manner in giving their testimony, and better able to reach correct conclusions and construction upon the same.
    Before Fkeedman and Teuax, JJ.

      Decided November 3, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the report of a referee.

      S. F. Kneeland and David Devenir ill, for appellants.

      Abram Fling, for respondent.
   By the Court.—Freedman, J.

This action was brought by the plaintiff as assignee of Eckhardt & Co., G. Henshaw & Sons, and Charles F. Phillips, creditors of the firm of Simon Epstein & Son, to recover the possession of certain goods and chattels purchased from the assignors by the firm of S. Epstein & Son under fraudulent representations. Prior to the commencement of this action the purchasers, S. Epstein & Son, transferred their entire stock of goods on hand, including the goods in question, together with their book accounts, to H. B. Claflin & Co. for an alleged consideration, a great part of which, as found by the referee, consisted of an alleged antecedent; indebtedness which was in part fictitious. The referee' found, in substance, that H. B. Claflin & Co. were not innocent bona fide purchasers, but did obtain possession of the goods with full knowledge of the insolvency of S. Epstein & Son and with the intent of aiding and assisting them in hindering, delaying and defrauding their creditors and plaintiff’s assignors in this action.

The record discloses no error in the admission of evidence constituting ground for reversal, and the conclusions of law found by the referee follow from the facts as found by him. The appeal, therefore, turns upon the question whether there is sufficient evidence to sustain the findings of fact made- by the referee. The record shows that there is. The defendants gave no testimony whatever and rested their case upon the evidence adduced by and on behalf of the plaintiff. That evidence was capable of the construction which the referee put upon it, and, upon the whole case, we cannot say that the preponderance of the evidence is the other way. For these reasons a reversal cannot be had on the sole ground that we might have arrived at different conclusions if the issues had been submitted to us as trial judges in the first instance upon the evidence disclosed by the record. The referee possessed the advantage of seeing the witnesses upon the stand and noticing the manner in which they gave their testimony.

The judgment should be affirmed with costs.

Tbuax, J., concurred.


author: By the Court.—Ingraham, J.

text:
    GEORGE T. PATTERSON, Plaintiff v. THE MUTUAL LIFE ASSOCIATION OF AMERICA, Defendant.

      Submission of controversy upon facts agreed on under chapter 11, title 2, article 2, Code Civil Procedure—Jurisdiction of court.

    Where on the facts presented the only judgment that the court can give that would be at law effectual would be a judgment for an injunction, the court has no jurisdiction and must dismiss the proceedings with costs. So Held, where the sole question presented was whether a Mutual Life Association had a right to levy a certain assessment, the only fact in relation to which, which was stated in the agreed case, being that the Association claimed the right to make the assessment.
    Before Freedman, Truax and Ingraham, JJ.

      Decided November 5, 1890.
    This point was not presented or argued by counsel,
    Controversy submitted under section 1279 of the Code. The facts sufficiently appear in the opinion.

      Joseph Kunsmann, attorney and of counsel, for plaintiff.

      Clifford A. H. Bartlett, attorney and of counsel, for defendant.
   By the Court.—Ingraham, J.

This is a controversy submitted upon an agreed statement of facts for the parpóse of procuring a judgment as to the right of the defendant to assess the amount that they would be required to pay upon the death of one George T. Patterson, a member of the association. By section 1281 of the Code it is provided, that if the statement of facts contained in the case is not suffb cient to enable the court to render judgment, an order must be made dismissing the submission without costs to either party. This case comes within this provision, and it is impossible for the court on the statement of facts contained in the case to render any judgment authorized in such a proceeding. The question that the court is asked to determine involves a construction of section 23 of the by-laws of the association which is substantially reproduced in the certificate issued to its members. That section provides “ that the relief fund above $100,000, may be applied to the payment of claims in excess of the American experience table of mortality.”

Both parties conceded that the plaintiff is entitled to recover from the association the amount named in the certificate, and the only point in controversy is as to whether or not the association has the right to cause an assessment to be levied, upon the members of the association to pay that claim. No such assessment has yet been levied, and the only fact in relation to such assessment that is stated in the submitted case, is that the association claims the right to make such an assessment. The only judgment, 'therefore, that the court could give that would at all be effectual would be an injunction restraining the association from making such an assessment. In the case of the Cunard Steamship Co. v. Voorhis, 104 N. Y. 528, it was held that in such a case the court had no jurisdiction to decide the controversy or render judgment on the merits. Section 1279 of the Code authorizes the parties to a question in difference which might be the subject of an action to agree upon a case containing a statement of the facts upon which the controversy depends and present the same to the court. Such a question must be one which might be the subject of an action, and section 1281 expressly prohibits any relief by injunction. Now, on the facts presented, the only controversy that could possibly be the subject of an action, would be to restrain the defendant by injunction from making the assessment, and that section 1281 prohibits.

I think, therefore, that this court has no jurisdiction, and that the proceedings must be dismissed, without costs.

Freedman and Truax, JJ,, concurred.


text:
    CLARA ISABELLE CURTIS, et al., Plaintiffs v. ANN MURPHY, et al., Defendants.
    Ejectment, action of, when it lies—Conveyance in trust, estate of trustees and cestui que trust under same^~Mortgage foreclosure action, parties to same required to foreclose the legal estate in the land.

    The plaintiffs, Clara Isabelle Curtis and Julia Curtis Munson, are the daughters of James L. Curtis and Clarissa E. Curtis (who was Clarissa E. Racey before her marriage to James L. Curtis), and the plaintiff, Edith Hastings, is the granddaughter of the said James L. and Clarissa E. Curtis. Prior to the marriage of James L, and Clarissa E. Curtis, and in June, 1832, they entered into an agreement with one Eliza Racey, that, after reciting that a marriage was about to be solemnized between said James L. Curtis and Clarissa E. Racey, also stated that Clarissa E. Racey was entitled to certain money and property, and that after said marriage the said Clarissa E. Racey should have power to dispose of her property, real and personal, by will or appointment, and that Eliza Racey should, upon the written request of said Clarissa E. Racey, invest the money of said Clarissa E.' Racey as she should direct and appoint, and should hold such investments' as the trustee of said Clarissa E. Racey.
    That, prior to said agreement and marriage, one Isaac Marquand Dimond was seized in fee of the real estate, the subject of this action, subject to a purchase money mortgage that he had executed to one William Wagstaff. That Dimond conveyed the property to the said James L. Curtis, who conveyed the same to one Stilwell, who conveyed the same to said Clarissa E. Curtis; and, in May, 1837, the said James L. and Clarissa E. Curtis conveyed the said real estate to the said Eliza Racey, upon trust, to receive the rents and profits of the same and apply them to the use of said Clarissa E. Curtis; and upon the further trust that the said Eliza Racey should, at the decease of said Clarissa E. Curtis, convey said real estate to the children of Clarissa E. Curtis, living at her decease, and the surviving children of such of them as might then be dead, in equal portions per stirpes and not per capita. That said Clarissa E. Curtis died intestate, November 3, 1886, leaving her surviving her daughters Clara Isabelle Curtis and Julia Curtis, and her grandchildren Edith Hastings and Ernest Hastings, her only heirs at law. That Eliza Racey, the trustee, died on or about December, 1848.
    That Ernest Hastings died October 11,1884, and by his last will and testament devised all his property, real and personal, to said Edith Hastings. That one George H. Hinman was duly appointed trustee by the Supreme Court, January 31, 1889, in the place of said Eliza Racey, deceased. That on the 7th day of June, 1889, said Hinman, as such trustee, conveyed the said real estate to the plaintiffs, Clara Isabelle Curtis, Julia Curtis Munson, and Edith Hastings, and on the 24th of June, 1889, the said Hinman, as trustee, and the said last named plaintiffs, "conveyed to the plaintiff, John Townshend, four undivided tenth parts of said real estate. That the mortgage on the said real estate executed by said Dimond to said Wagstaff became by several assignments the property of one George Lovett, who foreclosed the same by an action in the court of chancery of the state of New York, in the year 1838, in which action the said Isaac M. Dimond, James L. Curtis, and Clarissa E. Curtis, his wife, and Eliza Racey, were defendants, and such proceedings were had in said action that the said Clarissa E. Curtis and Eliza Racey filed their joint and several answers, and "on or about April 9, 1840, a decree was entered in said action and the said real estate was sold under the direction of William Mitchell, and the said George Lovett and one Samuel Cowdrey became the purchasers and received a conveyance of the same from the said Mitchell,' and said purchasers entered into possession of the same. The defendants in this action claim ownership of the said real estate under said action of foreclosure and sale from the said Lovett and Cowdrey. Plaintiffs bring this action of ejectment to recover the property from the defendants.

      Held, That at the time of the commencement of the action for the foreclosure of the mortgage, and of the entry of the decree therein, the whole estate was in Mrs. Racey and Mrs. Curtis, in Mrs. Racey for life, and in Mrs. Curtis in fee in reversion, who were parties defendant in that action; that Mrs. Racey and Mrs. Curtis were barred by the decree in the foreclosure action, and the whole legal estate passed to the purchasers at the master’s sale; that the children of Mrs. Curtis, as the holders of a mere contingent right in equity which did not give them an estate in the land, were not necessary parties to that action. This was the decision of this court in regard to a part of this same property in the case of Townshend v. Frommer, 57 IF. Y. Superior Court, 90, and its correctness must be assumed here. At the time of the alleged execution of the power in trust, appearing in this action, the defendants had the whole legal estate in the land, and still hold the same under and by virtue of the superior and prior lien given by the mortgage and the foreclosure and sale thereunder, and, therefore, the estate of the defendants was not divested, nor subject to be divested, by the execution of the power in trust. If the children of Mrs. Curtis have any right left which can he asserted, it must be asserted in equity. They are in no position to maintain an action in ejectment.
    Before Freedman and Trüax, JJ.

      Decided November 3, 1890.
    Exceptions of the plaintiff ordered to be heard in the first instance at general term, a verdict having been entered for defendants, by direction of the court.

      John Toionshend, attorney and of counsel, for plaintiffs, argued:—
    I. In Genet v. Hunt, 113 N. Y. 158, the facts were: C., in 1853, in contemplation of marriage, executed a trust deed of her real and personal estate to trustees to hold during her coverture or until her death if she should not survive coverture and apply the rents, &c., to her use. If she died during coverture the trustees were to convey as she by her will should direct and in default of any such direction the trustees were in effect to convey to her heirs at law. C. married and died during coverture leaving two children, and by her will she gave all her estate to her execntors in trust for such children. A question arose as to whether this gift to her' children violated the statute against perpetuities, and in a suit to construe the will the Court of Appeals held that neither C. alone, nor C. and her trustee, under the marriage settlement could, during the coverture, defeat the trust to her heirs contained in the trust deed. And per Andrews, J., p. 165 : “If the testatrix at her death was the absolute owner of the estate embraced in the trusts ” in her will the trusts were valid (p. 166). But her will was merely 'an execution of the power of appointment reserved in the trust deed and not an exercise by her as owner of the property of the jus disponendi incident to ownership, and therefore the trusts in the will were void (p. 168). “ If Mrs. Biggs remained the absolute owner of the property after the execution of the trust deed,' subject only to the estate of the trustees for her life, the trust in the will would be valid. The reversion in the case supposed would be property she could grant or devise, and limit future estates thereon in her discretion, subject only to the restriction that they must vest'in absolute ownership within two lives, in being at their creation. But Mrs. Biggs (Curtis) was not the absolute owner of an estate in reversion after the execution of the trust deed. In form, the whole estate was conveyed to the trustees. Their title, however, was in legal effect, limited in point of duration to the trust term. But the trust deed itself contains a limitation of the estate to other persons than Mrs. Biggs in the event of her death before her husband, and without having made an appointment by will, viz., to such person living at her death as would take the property as her heirs under the laws of the state of New York, by descent as if it was wholly real estate * * * (p. 169). The remaindermen, in case the event happened, upon which the remainder was limited, would take as purchasers. * * * It is true the remainder might be defeated by either of the two events, the death of Mrs. Biggs before the death of her husband, or by her will made in execution of the power of appointment and taking effect during his life, and it was in fact defeated in the latter way. But Mrs. Biggs could not, during the life of her husband, affect the limitation in remainder except in the particular way pointed out, that is by an appointment by will. She could not defeat it by conveyance inter vivos. The quality of absolute property which enables an owner to dispose of it in any of the forms known to the law, did not attach to the interest remaining in Mrs. Riggs after the execution of the trust deed. What she did have was a reversion depending upon her outliving her husband, which has been defeated by her death, and in addition a right to appoint by will only in case of her death during coverture.” It having been urged that the Married Woman’s Act of 1849 affected the question, the court continued (p. 172): The trust created by the deed of 1853 was not a mere formal or passive trust. The title to the property was vested in the trustees. It was strictly a trust under the statute. The deed not only declared the interest of Mrs. Riggs in the trust.property, but limited thereon future contingent estates- to take effect on her death during coverture unless defeated by her appointment by will. The trust was not, we think, within the provisions of the statute of 1849 (The Married Woman’s Act). If a conveyance had been made to her under that statute the property could not be held “ for her sole and separate use and benefit,” because the contingent estate in remainder could not in that way be defeated.

      In Townshend v. Frommer, 57 superior Court Reports 90, the reporters deemed it impracticable to report the points of counsel because of their volume and extent. The same and additional points appear in this case. The important questions involved seem to demand that a summary shall be given. Reptrs.

      II. While the plaintiffs for the purpose of the present argument concede the correctness of the decision, and every one of the propositions laid down by the court in Townshend v. Frommer, (57 Superior Court Reports 90), they respectfully submit that those propositions must be construed in connection with the fact that they had reference only to the decision in that case, and that due effect must be given to the reservation by the court of the consideration of the plaintiff’s “ interest of an other kind,” and that the foreclosure did “not effect the nature of the interest of the grantors of the plaintiff.” To show exactly how the plaintiffs ask to have the proposition of the court in Townshend v. Frommer, supra, qualified those propositions are repeated. The decision of the court was : 1st. In ejectment to entitle the plaintiff to a recovery, he must have the legal estate in the land. 2nd. Plaintiff had not the legal estate. And the reason for holding that plaintiff had not the legal estate, was that after 'the trust deed the legal estate for the life of Mrs. Curtis, was in the trustee, and the legal estate in the remainder, was in Mrs. Curtis for her life, and therefore as plaintiff was grantee of the children of Mrs. Curtis by: a grant made in her life time, he took no legal estate. The court, however, was careful to observe that its decision renders it unnecessery to inquire if plaintiff “ had an interest of another kind, and then to ascertain its characteristics.” This is all that was actually decided, but in addition to the decision, the court did express its views to this effect. (1) The trust to convey was an express trust not authorized by statute. (2) It created a power in trust. (3) The lands remained in or descended to the persons otherwise entitled subject to the execution of the trust as a power. (4) As the trust had not been executed Mrs. Curtis remained entitled in fee (subject to the trust to convey). (5) That fee was foreclosed in the foreclosure suit and transmitted to the defendants (still subject to the trust to convey). (6) Mrs. Curtis’fee was subject to the estate for life in the trustee and also subject to the trust to convey. (7) The trustee was a party to the foreclosure. (8) This, however, does not effect the nature of the interest of the grantors of the plaintiff.
    III. Keeping in view the decision and the opinion in Townshend v. Frommer and their obligatory effect, the plaintiffs’ contentions are : The trust deed purported to create two trusts (1) for the life of Mrs. Curtis, and (2) for the remainder of the estate. The trust deed created a valid trust for the life of Mrs. Curtis. The trustee took the whole legal estate for the life of Mrs. Curtis. This left the legal estate in remainder in Mrs. Curtis. This-legal estate she had the right to dispose of and her grantee would have a legal estate. She exercised this right by the second trust in the trust deed, the trust to convey. This second trust was not authorized by the statute and was void as an express trust. This second trust, although void as an express trust, was valid as a power in trust. This power in trust was irrevocable. This power in trust is a power and a trust. This power in trust vested no estate in the trustees. The land to which the trust related was the remainder after the termination of the life estate. This remained in “ the persons otherwise entitled.” The person otherwise entitled was Mrs. Curtis. The power was special, in trust, imperative and enforceable in equity for the benefit of the children of Mrs. Curtis. This right to the benefit of the power in trust was a lien or charge upon the lands from the time the trust deed took effect, or was recorded. This right was a right to the land as land and vested in the children from the time of the execution of the trust deed. Mrs. Curtis, after the trust deed, held the remainder,' not as absolute owner, but subject to the execution of the power in trust and the rights of her children to the benefit thereof.' This right in her children could not be taken from them by any proceeding to which they were not parties. The foreclosure extinguished Mrs. Curtis’ right and the right of the trustee for her life, but not the rights of children of Mrs. Curtis. Her deed would not have affected the rights of the children. Upon the death of Mrs. Curtis her children’s right to have a conveyance became absolute. The trustee having died, a new trustee was appointed. The new trustee executed the power and conveyed to plaintiffs. Plaintiffs by that deed took as of the date of the execution of the trust deed. The purchasers at the foreclosure sale took only the life estate and the fee subject to the execution of the trust. Upon the execution of the deed by the trustee to plaintiffs the legal estate defendants ceased. The action is properly in ejectment.
    IV. Mrs. Curtis being the owner of the block in fee, subject only to the mortgage by Dimond to Wagstaff, had an absolute right to dispose of the property subject to that mortgage. Packer v. Rochester R. R. Co., 17 N. Y. 296. Mrs. Curtis exercised that right by the trust deed.
    V. The trust deed created two trusts. (1.) The first trust was to receive the rents and profits of the lands and apply them to the use of Mrs. Curtis during her life. This was a valid express trust. 1 R. S., 728, § 55, subd. 3. And it took effect upon the delivery of the deed. 1 R. S., 726, § 41. (a) The trustee took a legal estate in the lands commensurate with the trust, i. e., for the life of Mrs. Curtis. “ The rule * * * is that the trustee takes that quantity of interest only which the purposes of the trust require and the instrument creating it permits. The legal estate is in the trustee so long as the execution of the trust requires it and no longer, and then it vests in the person beneficially entitled.” Jewett, J., Nicoll v. Walworth, 4 Den. 388 ; Miller v. Wright, 109 N. Y. 194 ; Irving v. Campbell, 18 N. Y. St. Rep. 975 ; Moore v. Appleby, 36 Hun, 368. (6.) This left the residue of the estate, not embraced in the trust, in the creator of the trust, Mrs. Curtis. 1 R. S., 729, § 62. (e) The 62d section provides “ for a case where an estate for life is the subject of the trust created by the owner of the fee.” Denio, J., Briggs v. Davis, 21 N. Y. 577. (d) By the creation of this trust Mrs. Curtis parted with all estate in the land during the continuance of the trust. 1 R. S., 729, § 60. (e) But Mrs. Curtis retained the right to declare to whom the lands should belong at the termination of the trust, and to grant such lands subject to the execution of the trust, and such grantee would have a legal estate against all persons except the trustee. 1 R. S., 729, § 61. (2.) Mrs. Curtis exercised the right secured by the provision lastly referred to by declaring in the trust deed, as a second trust, that the trustee held upon the further trust at the decease of the said Clarissa to convey said lands in fee simple to her children living at her decease and the surviving children of such of them as might then be dead, that is to say, each of her children who may then be living to have and take one share. (3.) This was a trust not enumerated as an express trust. 1 R. S., 728, § 55. (a) It vested no estate in the trustee (the grantee of the power) but the trust was valid as a power in trust. 1 R. S., 729, § 58 ; 1 lb. 738, § 135. (5) The land to which the trust relates remained in the person otherwise entitled subject to the execution of the trust as a power. 1 R. S., 729, §59. (c) The land to which the trust related was the remainder subject to the life estate in the trustee, and the person otherwise entitled was Mrs. Curtis. (d) But she held this remainder subject to the execution of the trust. (e) And the persons interested in the execution of the power in trust were her children. (f) The power in trust was a special power. 1 R. S., 732, § 78. (g) And a special power in trust. 1 R. S., 734, § 95. (h) Mrs. Racey was as to this property not only a trustee, but “ the grantee of a power.” 1 R. S:, 738, § 135. (i) And as the execution or non-execution of the power was not made expressly to depend upon the will of the grantee, Mrs. Racey, it was imperative, and imposed a duty on such grantee the performance of which might be compelled in equity for the benefit of the parties interested. 1 R. S., 734, § 96. (j) The power was irrevocable. 1 R. S., 735, § 108. (k) This power was recorded May 10, 1837. The power, therefore, became a lien or charge against all persons, at least, from the date of itsrecord. 1 R. S.,735,§107. Blanchard v. Blanchard, 4 Hun, 290. (l) This lien or charge was in favor of the children of Mrs. Curtis. Cutting v. Cutting, 86 N. Y. 536.
    VI. The difference between a power and a trust was, and probably is, that a power is optional, and a trust is imperative. (1.) “ The distinction between a power and a trust is marked and obvious. Powers, as Chief-Justice Wilmot declared (Wilm. 23), are never imperative, they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party interested. But sometimes trusts and powers are blended. A man may be invested with a trust to be effected by the execution of a power given to him, which is in that case imperative ; and if he refuses to execute it, or die without having executed it, equity, on the general rule that the trust is the land, will carry the trust into execution. * * * This is the case where a power is given by a will to trustees to sell an estate and apply the money upon trusts. The power is in the nature of a trust. The legal estate, until the execution of the power, of course descends to the heirs at law ; * * * but equity acting upon the trust will compel the heir to join in the sale for the purpose designated by the testator.” Sugden on Powers., 8 ed., p. 588, ch. 11, § 6, 3. (2.) Upon the same ground if a power of appointment is given by will to a party to distribute property among certain classes of persons, as among relatives of the testator, the power is treated as a trust, and if the party dies without executing it, a court of equity will distribute the property among the next of kin. Story Eq. Juris., 13 ed., § 1061. (3.) Imperative powers are trusts. Perry on Trusts, §§ 248, 473, 503. (4.) An express trust for a purpose not authorized by statute where the execution of the power is imperative creates a trust just as was the case at common law. “ It imposes a duty or trust upon the grantee, which the grantor had a right to create, and which the court is bound to carry into effect.” Hetzel v. Barber, 6 Hun, 534 ; Cooke v. Platt, 98 N. Y. 35. (a) The person to execute the trust is called the trustee. 1 R. S., 729, § 58. (b) The trust shall be valid as a power in trust. 1 R. S., 729, § 58. (c) Where the trust shall be valid as a power the land to which the trust relates shall remain, etc., subject to the execution of the trust. 1 R. S., 729, § 59. (d) Where an absolute power of disposition not accompanied by any trust shall be given, &c. 1 R. S., 732, § 81. (e) It is obvious that without giving any estate to the trustee the trust may as well be executed as a power. Revisers’ Note to Sec. 56 of 1 R. S., 729. (f) A power in trust is a trust. “ The word trust is used advisedly.” Per Van Brunt, J. Read v. Williams,/ 27 N. Y. St. Rep. 505-9. And see Gilman v. Reddington, 24 N. Y. 9 ; Chapman v. Nichols, 61 How. 274. “ (g) Comstock, J.: The impression has prevailed that the provisions of law have taken from owners the power of impressing upon their estates any limitations having the general characteristics of a trust, except such as are enumerated” (1 R. S., 728, § 55). “ That this impression is not well founded will appear on a brief consideration of the subject” p. 377 * * * * The provisions of the statute were aimed against the attempt to create such estates or title, but not against the duty trust or power, p. 379 * * * The result is express trusts were “ confined to the enumerated classes. But the trust limitation, although not belonging to that class, if not otherwise unlawful, will be effectuated in a different, mode,” p. 379. “ As the old statute of uses, which •was intended to abolish passive trusts, left the widest field for the creation of actual ones, so our revision in abrogating all active trusts, except the few particularly specified has reanimated them under the name of powers which are left without restriction.” p. 380. Downing v. Marshall, 26 N. Y. 366. (h) The trusts “ are not authorized * * * but are proper subjects of a power, and are not void because the testator has put them in the form of trusts, but can be executed as powers.” Manice v. Manice, 43 N. Y. 364.
    VII. After the excution of the trust deed, and prior to the foreclosure, the situation of the parties was as thus : Subject to the lien of the mortgage. The trustee (Mrs. Racey) had an estate for the life of Mrs. Curtis. The remainder in fee was in Mrs. Curtis. There was a power in trust which was a lien or charge on the remainder in favor of the children of Mrs. Curtis, the execution of which power they could enforce in equity. Mrs. Curtis’ remainder was not an absolute estate, but was subject to the power in trust which she could not defeat by a conveyance. Genet v. Hunt, 113 N.Y. 536 ; Clark v. Crego, 47 Barb. 614. Although the fee in Mrs. Curtis was foreclosed, and although the trustee was a party to the foreclosure, the foreclosure did not affect the rights of the children of Mrs. Curtis, who were not parties to the suit. (1.) The children of Mrs. Curtis had the right to redeem from the mortgage in order to preserve their rights. Calverly v. Phelp, 6 Maddox, 229 ; Osbourn v. Fallows, 1 Russ. & M. 741; Anderson v. Stather, 2 Coll. 209 ; Graham v. Fountain, per Ingraham, J. (2) “Thegeneral equitable rule requires that in an action affecting trust property the cestui que trust, as well as the trustee, is a necessary party, and it applies in mortgage cases as well others” (citing inter alia Williamson v. Field, 2 Sandf. Ch. 533). “ The owner of the equity of redemption in the mortgaged property is therefore a necessary party to a suit for a foreclosure of a mortgage, and if the suit proceeds without his being made a party, his title is not affected by the decree.” Landon v. Townshend, 112 N. Y. 93 ; Moore v. Appleby, 108 lb.. 241. (3). All persons having any interest in the land must be joined. Per Ruger, Ch. J.: “ Judge Seeder, writing in that case (Mills v. Van Voorhees, 20 N. Y. 412), upon the effect of an omission to make the wife of a mortgagor a party to a foreclosure suit, says (p. 415), whether at common law it would be necessary to make her a party must depend upon the question whether she has any interest either legal or equitable, complete or inchoate in the mortgaged premises. If she has such an interest, however remote, then upon the plainest and most familiar principles that interest cannot be affected by a suit in equity to which she is not a party.” * * * Mutual Life Ins. Co. v. Shipman, 29 N. Y. St. Rep. 745. And see : Lockman v. Reilly, 95 N.Y. 64 ; Moore v. Appleby, 108 lb. 241 ; Sinclair v. Jackson, 8 Cow. 543 ; Miller v. Wright, 109 N. Y. 194, 200. (a) In U. S. Trust Co. v. Roche, 116 N. Y. 120, Jas. C. Foster had neither an interest in the land nor a vested interest in the proceeds of the land. Therefore he was not a necessary party. (4.) The Master’s deed, on foreclosure sale, vests in the purchaser the same estate and no other or greater than would have vested in the mortgagee if the equity of redemption had been foreclosed, and such deed shall, be as valid as if executed by the mortgagor and mortgagee, and shall be an entire bar against all parties to the suit. 2 R. S. 192, § 158 ; Howell v. Leavitt, 90 N. Y. 238-241. Suppose all these persons had conveyed to the purchaser. The deed would have conveyed only the right of Mrs. Curtis and of Mrs. Racey. Fleming v. Burnham, 100 N.Y. 8 ; Genet v. Hunt, 113 lb. 158. (5.) A Court of Equity upon the complaint of Mrs. Curtis and with her children in' court as defendants could not have divested th'e rights of those children nor could their rights have been divested by legislative act. A widow in 1846 in contemplation of marriage conveyed her real and personal estate to a trustee reserving to herself the control of the income for life with the power to dispose of the property by will and the right to have the property restored to her if she survived her then intended husband, and further that if she died without a will the trustee should pay over and transfer the trust estate to her legal representatives. The marriage,took place and there was issue of the marriage. After the passage of the Married Woman’s Act of 1848, and in the lifetime of the husband and children, the wife brought suit in which the trustee, the husband and the children were parties defendants, asking to have the trust vacated and the property reconveyed to her. This court dismissed her complaint and per Sandford, J. (p. 413): “So long as the coverture continued the settlement gave her no interest in the capital and she had no power of disposal which could take effect during her life (and p. 417). In this construction of the trust deed the infant children of the plaintiff have a contingent future estate which the court cannot divest, and which the statute of 1848 would have failed to affect if it had attempted it in terms, and, further, all the future issue of the marriage will have similar estates, which any decree in this court could not affect or impair.. Watson v. Bonney, 2 Sand. 405. This decision was not cited in Genet v. Hunt, 113 N. Y. 158, but it decided the same point in the same way. (6.) The Court of Appeals determined the effect of a Master’s deed in foreclosure upon parties not parties to the foreclosure in the following case : Action to recover damages to plaintiff’s mill by water accumulated in the race. The accumulation being occasioned by defendants having closed a waste weir in the wall of the race above plaintiff’s mill. Defendants claimed the right to close such waste weir under a contract to which plaintiffs grantor was a party. That part of the race above plaintiffs mill was constructed in 1818. The race did not then connect with the main channel of the river, but with a branch thereof, between which and the main channel was Mumford’s' Island. The Island, the main channel and the branch were all above plaintiffs mill. Prior to 1836 Mumford’s Island, and the surrounding channel were owned by Mumford. In 1836 Mumford sold the Island and channel to Griffith & Selye, taking a mortgage for a portion of purchase money. Afterwards, in 1836, said Griffith and Selye entered into a contract with Wareham, Whitney and others, the owners of the land abutting on said race, by which it was agreed that said race, instead of connecting with the branch running round Mumford’s Island, should, by an artificial cut, be carried across the island. Griffith and Seyle were to fill up the bed of the branch above the artificial cut. The mill owners made the artificial cut, but in the wall on the lower side of the race was a depression, which made a waste weir. In 1841 Griffith and one Peck (Peck held Selye’s title) commenced a suit in chancery, claiming that by said contract the mill owners were bound to close said waste weir by raising the wall at the point of depression, praying that said mill owners might be decreed to close said waste weir. In August, 1842, a decree was made, granting the prayer of the complainants. The parties defendant to that suit to close the waste weir, were the surviving mill owners, parties to .said contract of 1836, including one Achilles. The plaintiff in this action for damages, was the grantee of said Achilles. Afterwards Griffith and Peck conveyed the premises to defendant and he closed the waste weir. The mortgage to Mumford was assigned to the Mechanic’s Bank of New York, and the bank, on March 1, 1842, commenced a suit to foreclose said mortgage. Neither the mill owners, parties to the contract of August, 1836, nor their grantees nor representatives were parties to that foreclosure. A decree for sale was made in said suit, and a sale had. Under this sale defendant derived title to and on both sides of said race, as extended under the contract of 1836, and immediately below and adjoining said waste weir so closed. The closing of the waste weir by defendant, pursuant to said contract and said decree, occasioned the damage to plaintiff s mill for which the action- was brought. Upon the trial defendant offered in evidence the decree in the suit to carry out the contract of 1836. It was rejected : plaintiff recovered ; defendant appealed to the Court of Appeals, and that court held it ought to have been received ; that it was binding on plaintiff and he had no cause of action. The reasons for this judgment were briefly these : (a) Griffith and Selye [Mrs. Curtis], notwithstanding the mortgage, were the owners of the fee. The mortgage was but a lien. (b) Griffith & Selye had the right to make the contract of 1836 with Wareham & Whitney [Mrs. Curtis had the right to make the trust deed], and it was binding upon them and upon all the parties to it and their privies, (o) The decree in the suit to carry out said contract was binding upon all the parties to that suit and their privies, (d) Achilles was a party to said contract and a party defendant to said suit, and plaintiff as his grantee was privy to both, the contract and the suit, (e) The defendant as deriving title through Selye & Peck was bound by said contract and decree. (/) Said contract [trust deed] was subject to the mortgage, and if the mortgagee had made the mill owners [the Curtis children] parties to the foreclosure, the decree and sale in that suit would have extinguished all the rights of such mill owners [children] under said contract [trust deed]. (g) That as neither the mill owners [children] nor their grantees were parties to the foreclosure, they were not bound by the decree, and they retained all the rights they acquired under said contract [trust deed] and the decree establishing same, (h) That a Master’s deed in foreclosure sale vests in the purchaser a title not as of the time of the execution of the mortgage, but as of the time of the Master’s deed. The. purchaser held under the mortgagor, (i) That as at the time of said Master’s deed the title of the mortgagor was subject to said contract of 1836 [trust deed] the title of the purchaser was subject also to said contract [trust deed] and to the rights of the parties thereunder [the children] who were not parties to the foreclosure, (j) If at the sale enough had been realized to pay .the mortgage the mill owners [children] would own the rights under the contract of 1836 [trust deed] unencumbered. If there was a balance of the mortgage debt still unpaid the mill owners [children] held subject to the lien of that balance. Packer v. Rochester R. R. 17 N. Y. 283-300. Denio, J. : "But this foreclosure and ex-tinguishment did not operate upon the interest conveyed by the mortgagors to Wareham or Whitney and others by the instrument of August 12, 1836, [the trust deed], because these persons were not parties to the foreclosure suit. If the money realized on the sale was sufficient to pay the mortgaged debt, Whitney and the others [said children], whom I shall for convenience call the mill owners, hold an unencumbered title to the real estate thus conveyed to them. If there is a balance of that debt still unpaid, the mill owners [said children] have an estate in that property subject to the lien of the mortgage for the unpaid balance, which estate is unforeclosed ” (p. 288). Although Griffith & Selye [Mrs. Curtis] “ could grant no rights which would not be subject to the lien of the mortgage, whatever rights they [she] did assume to grant can now be asserted, inasmuch as the grantees were not parties to the foreclosure ” (p. 291). “ How, it may be said, can the defendants claim to take advantage of the arrangement which Peck & Griffith made with the mill owners, seeing that the equity of redemption, which was the only title which Peck & Griffith had when they made it, has been cut off by the foreclosure ? This would be unanswerable if the mill owners had been made parties, and had been foreclosed. But the holder of the mortgage by omitting to claim a foreclosure against the mill owners [the children], has left them in the enjoyment of all the rights which they acquired by the arrangement with Peck & Griffith ” (p.292). Pratt, J.: “The question, therefore, becomes narrowed down to the simple point whether a purchaser under a foreclosure is deemed to take the title of the mortgagor as of the time of the execution of the mortgage, or as of the time of receiving the deed. In whatever aspect the question may be viewed, I think it is clear that he succeeds to the rights of the owner of the equity of redemption, as of the time of the execution and delivery of the Master’s deed at least as against those who have acquired interests intermediate the execution of the mortgage and the foreclosure and sale ” (p. 295.) The judge, in considering the relative right of a mortgagor and mortgagee, says : “ He [the mortgagor] may create terms for year or for life in it, which will be vested as against the mortgagee until foreclosure ” (p. 296). And again : “ The mortgagors [Mrs. Curtis] hold the title granted to the mill owners [said children] rights. The mortgagee having a prior lien, might, by making the mill owners [said children] parties in the foreclosure suit, have terminated their interests, unless they were willing to redeem. But they chose to leave their interests unimpaired. * * * The mortgage, therefore, stands unforeclosed as to the rights of the mill owners [said chil.dren] but the interests of the mortgagor passed to the purchasers upon the foreclosure, and ex necessitate it must be deemed to pass as of the time when it was foreclosed” (p 297-8).
    VIII. As the purchaser at the foreclosure sale acquired the right and was substituted to the place of the trustee, Mrs. Racey, and also to the place of Mrs. Curtis, he and those claiming under him were rightfully in possession during the life of Mrs. Curtis, and until the execution of the power in trust. The purchaser held subject to the power in-trust. The land was after (the trust deed) held and continued in whosoever hands otherwise entitled, it might come, subject to the execution of the trust as a. power. Clark v. Crego, 47 Barb. 599; 51 N. Y. 646. There could, therefore, be no adverse possession as against those claiming subject to those rights until those rights expired. “ There was no right of entry of the children of Mrs. Curtis until (her) death.” Fleming v. Burnham, 100 N. Y. 1-8; Christie v. Gage, 71 lb. 192. Nor until the execution of the power in trust. Townshend v. Frommer, 57 N. Y. Super Ct. 90. Those under whom defendants claim entered under the foreclosure and have always claimed and still claim under that title. This was not adverse to the plaintiff. The quality of the right acquired by the possession of lands depends upon the claim accompanying it. The claim accompanying it was the foreclosure. Jackson v. Johnson, 5 Cow. 92 ; Bedell v. Shaw, 59 N. Y. 50. One coming into an estate for life by purchase at sheriff’s sale may not establish an adverse possession against the reversioner. Vandervoort v. Gould, 36 N. Y. 639 ; Bedell v. Shaw, supra ; Burhans v. Van Zandt, 7 Barb. 91 ; 7 N. Y. 523.
    IX. Upon the death of Mrs. Curtis the right to have the power executed became complete. The trustee having died, the Supreme Court appointed a trustee to execute the trust and he conveyed to the children. This vested the title in them as of the date of the trust deed, (a) Every grantee under a power takes in judgment of law under the instrument creating the power and not under the deed pursuant to the power. Tallman v. Ward, 26 Wend. 13. (b) “ An estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power.” 4 Kent Com. 337 cited Genet v. Hunt, 113 N. Y. 170. (c) “ The effect declared by them (§§ 98, 99, 100, 107, 112, 113, 119) does not result from the execution of the power, but alone from the existence of the power.” Cutting v. Cutting, 86 N. Y. 536. Upon the death of a trustee, of an express trust, the trust if unexecuted vests in the court of chancery to be executed by some person appointed for that purpose. 1 R. S., 730, § 68, and see §§ 69, 70, 71. The foregoing provision applies to powers in trust. 1 R. S., 734, § 12.
    X. The action is properly brought as ejectment. The children of Mr. Curtis, at the time of the foreclosure held at least a lien or charge upon the land. 1 R. S. ,735, § 107. After the sale these children held their lien or charge subject to the unpaid amount of the mortgage. Mr. Curtis and Mrs. Racey had consented in invitum to the entry of the purchaser at the mortgage sale. But they could not consent for nor do any act to affect the rights of the children (Point Seventhly). The children never consented to the entry by the purchaser. The entry by the purchaser and those claiming under him was lawful until the children took by the execution of the power but upon the execution of the power the holding of the purchaser became tortious. The point made by the defendants that the mortgage gave a consent to the mortgagee to enter cannot avail. The purchaser did not enter under that power, but under the decree. What the defendants designate as a consent to enter, is the ordinary power of sale, contained in the mortgage; it is to enter and sell, but defendants’ grantors “sold and entered.” The mortgage in Hunt v. Leavitt, 95 N. Y. 617, contained a like clause.
    XI. The mortgage debt has been paid and the lien of the mortgage removed. The sale paid the debt pro tanto. For the deficiency the mortgagee took a judgment against Dimond and Talmadge. Although this did not effect the lien of the mortgage, the mortgage debt merged in the judgment, and more than twenty years having elapsed since the recovery of that judgment, it is presumed to have been paid, 2 R. S., 301, § 47. The debt being paid, the lien of the mortgage is gone. Kortright v. Cady, 21 N. Y. 343. The mortgage is presumed satisfied. 2 R. S., 301, § 48. The purchaser at the mortgage sale being in possession, as purchaser, and not as mortgagee in possession, the lien of the mortgage was not kept alive. It is a familiar rule “ that every person is presumed to intend that which is the natural consequence of his actions.” Seldon, J., Bush v. Prosser, 11 N. Y. 358. “ The law presumes from the act an intent to bring about its consequences.” Daly, P. J., Yiele v. Gray, 10 Abb. 5. Lovett, the mortgagee, was amenable to and bound by this rule. Therefore, when he purchased without making the Curtis children parties, and when he took a judgment for the deficiency, and when he bought and went into possession, it must be presumed he intended the natural consequences of his act ; namely, he acquired the rights of Mrs. Racey and Mrs. Curtis, accepted the amount produced by the sale in satisfaction pro tanto of the mortgage debt and looked to Dimond and Talmadge for the deficiency. Having done this, and had the benefit of his acts, can he now disavow the foreclosure and all that was done under it and claim the mortgage to be still existing ? The action of the mortgagee is repugnant to any claim under the mortgage. “ The precise question here is whether the plaintiffs in pursuing their remedy under the judgment have not so treated and dealt with the property in question as to preclude themselves from setting up their title or claim to it under the mortgage.” Butler v. Miller, 1 N. Y. 497. And see: Newman v. Lorrimer, 19 Iowa, 244 ; Hendershott v. Ping, 24 lb. 134; Wayman v. Cochran, 35 Ill. 152 ; Priest v. Wheelock, 58 lb. 114 ; Harris v. Mills, 28 lb. 44. The plaintiffs may use the statute as a shield. When they ask for possession they are met with the claim under the mortgage. The attempt to use the mortgage to their prejudice is what the statute meant to prevent. If the mortgagee mistook his remedy, or slept upon his rights till they became extinct, he and those claiming under him must accept the consequences. Vigilantitus non dormientibus jura subvenient.

    Lastly. The direction of a verdict for defendants was erroneous ; it should be reversed and a new trial ordered.

      John F. Dillon and Harry Hubbard, attorneys and of counsel, for defendants, argued :—
    Brief in Townshend v. Frommer, herewith filed, is made a part of this brijef. The points there made are, each and all of them; urged upon the attention of the court, so far as thejr arise in the present case and are not concluded in our favor by the decision in that case. The decision of this court in Townshend v. Frommer rested upon the first ground of defence stated in the brief in that case, namely, that the children of Mrs. Curtis took no estate under the trust deed of May 1st, 1837, and therefore, the plaintiff had no estate to support an action of ejectment. This proposition we take to .be res judicata and not open to controversy in the present case. The court did not find it necessary to consider the second ground of defence stated in that brief, namely: That the defendants are mortgagees rightfully in possession, and therefore ejectment will not lie against them. We confidently rely upon this proposition. The argument and authorities in support thereof will be found on the attached brief in Townshend v. Frommer, (pp. 64-99), to which we refer as part of this brief. In addition to the two defences just referred to, we present the following propositions as, also, conclusive against the plaintiffs in the present case.
    I. The defendants held the whole estate in the land at the time of the alleged execution of the power in trust, and still hold the same, under and by virtue of the lien of the mortgage, and the foreclosure and sale thereunder, which lien was and is prior in time and superior to the lien of the power in trust, and therefore the estate of the defendants was neither divested nor subject to be divested by any alleged execution of the power in trust. The mortgage which was foreclosed in 1838-1841 was made June 20, 1835. This was a purchase money mortgage of the fee simple, not of a life estate, for no life estate had as yet been carved out of the fee. The trust deed was made May 1, 1837. The foreclosure was begun in 1838. The deeds of the land which were made June 20, 1835, to September 28, 1835, conveying the land to James L. Curtis, and then to his wife, Mrs. Curtis, the grantor in the trust deed, were all made subject to the said mortgage, which mortgage the respective grantees expressly assumed to pay. The mortgage was, therefore, prior in time to the trust deed and to the power in trust created by that deed. The trusts of the mortgage exhausted the whole of the land and the estate therein, and there was nothing left for the alleged execution of the power to act upon. The children or Mrs. Curtis did not have an estate in remainder or any estate or interest in the land whatever, but only a contingent right in equity, that is, if alive at their mother’s death, -to call for the conveyance of the estate if it was then in the mother and had not been divested. The whole estate was in Mrs. Racey and in Mrs. Curtis, in Mrs. Racey for life and in Mrs. Curtis in fee in reversion. Both Mrs. Racey and Mrs. Curtis (and her heirs), the holders of the whole legal estate, were barred by the decree in the foreclosure suit. The legal estate passed to the purchasers at the master’s sale, and nothing was left in Mrs. Racey or in Mrs. Curtis or her heirs upon which any alleged execution of the power in trust could operate, and such conveyance gave no estate to the grantee therein named ; it was simply void. The children of Mrs. Curtis, as the holders of a merely contingent right in equity (such right not being an estate in the land) were not necessary parties to the foreclosure suit, as is shown infra Point II. But even if they were necessary parties in order to bar an equity of redemption, nevertheless the whole legal and equitable estate passed to the purchasers at the foreclosure sale and by mesne conveyances and by inheritance to the defendants in this action. And these defendants at the date of the alleged execution of the power in trust held, and now hold, the whole legal and equitable estate under and by virtue of the lien of the foreclosed mortgage, which lien was prior in time and superior in law to the power in trust. These defendants, therefore, have the legal estate in the land and hold it by virtue of a prior right. If the children of Mrs. Curtis had any right left after the foreclosure and sale it was only a right in equity to redeem.
    II. The children of Mrs. Curtis were not necessary parties to the foreclosure proceedings. The case of Townshend v. Frommer decided that the children of Mrs. Curtis at the time of the foreclosure suit had no estate whatever in the lands in question, but only a contingent equitable right under a power in trust, to call for the execution of the power, the contingency being that they should survive their mother. This being the case it follows, from the well-known rule that in a foreclosure of a mortgage it is necessary to. make parties only those persons who have vested estates or interests in the land, that the children were not necessary parties to the foreclosure proceedings. Mr. Jones states the rule, as follows : “ When there are estates in remainder or reversion after a life-estate, in the equity of redemption, it is generally sufficient to bring before the court the first person in being who has a vested estate of inheritance, together with those claiming the life-estate, and omitting any who may claim a reversion after such vested estate. Those having merely future contingent interests are not necessary parties if the person who has the first estate of inheritance is before the court.” 2 Jones on Mortgages, § 1401. All of the vested estates were in Mrs. Eacey and Mrs. Curtis. Mrs. Eacey had a life-estate, and Mrs. Curtis the reversion in fee, which was the first and only vested estate of inheritance. The children of Mrs. Curtis had 'only a “ future contingent interest.” The -rule is also stated by Chancellor Walworth, in Nodine v. Greenfield, 7 Paige, 544, 548, as follows : “ When there is a contest in Chancery in relation to real estate, or where a mortgagee wishes to foreclose a mortgage in a case where there are several future and contingent interests in the equity of redemption, it is not necessary to make every person having or claiming a future and contingent interest in the premises a party to the bill, in order to bar his right or claim, by the decree in the cause ; but it is sufficient, if the person who has the first vested estate of inheritance, and all other persons having or claiming prior rights or interests in the premises, are brought before the court. Story's Eq. Pl., 140, § 144 ; 182, § 198 ; 1 West's Rep. 619 ; See also to the same effect : Reynoldson v. Perkins, Ambler, 564 ; Per Sir Thomas Plummer, Master of the Rolls, in Cholmondeley v. Clinton, 2 Jac. & W. 1, 133 ; Calvert on Parties, 182. Some of the above authorities state and illustrate the rule that even the holder of a contingent estate is not a necessary party to a foreclosure of a mortgage : a fortiori, the holder merely of a future contingent equitable interest, not amounting to an estate, is not a necessary party. It is unnecessary to multiply citations in support of this well-known rule. The Court of Appeals has recently decided this very point in a case which is on all fours with the present one, so far as this principle is concerned. The case is United States Trust Company v. Roche, 116 N. Y. 120. James A. Foster, in contemplation of marriage, conveyed certain real estate to a trustee, upon trust, to receive the rents and profits during the life of his prospective wife, and after her decease, and in case there should be any issue of such' marriage living at her decease, then, upon trust, to sell. the said real estate and divide the proceeds among such issue. This last provision created a power in trust, like the power in trust in the present case. The marriage took place as contemplated. During the management of the property by the trustee, the taxes and water rates fell in arrears, for which the property was about to be sold. Thereupon the said James A. Foster and his said wife petitioned the Supreme Court for leave to make a mortgage of said real estate, in order to raise money to pay these taxes and water rates. A guardian ad litem was appointed for the children of the marriage then living, who were at the time minors. The court granted leave to make the proposed mortgage, which was accordingly made. After default had been made in the payment of the mortgage money, this suit was brought to foreclose the mortgage. Two defenses were set up : (1) That the mortgage was void ; (2) that James C. Foster (a child of the marriage, of full age and then living) was a necessary party to the foreclosure suit. The case was tried at special term, the defenses both overruled, and a foreclosure decreed. The general term reversed the decision of the special term, with directions to dismiss the complaint, holding both that the mortgage was void, and that James C. Foster was a necessary party. But the Court of Appeals reversed the decision of the general term, and affirmed that of the special term. As to whether James C. Foster was a necessary party, the Court of Appeals (Follett, Ch. J.) says (p. 130) : “ No legal estate in remainder, vested or contingent, was created by the trust deed, but the entire legal estate was vested in the trustee, where it now remains, and James C. Foster has no legal estate of any kind to protect. It has -been several times held that when specific realty, which is subject to a mortgage, is devised or conveyed to a trustee to be converted .into money at a future day and divided between specific persons, that they have a vested equitable interest in the subject of the trust, and are necessary parties to an action for the foreclosure of the mortgage (Calverley v. Phelp, 6 Mad. 229 ; Osbourn v. Fallows, 1 Russ. & M. 741 ; Anderson v. Stather, 2 Coll. 209). For a stronger reason, a person having such a vested equitable interest in the avails of realty, when it shall be converted into personalty, is a necessary party to a suit for the foreclosure of a mortgage executed by the trustee. But James C. Foster has not a vested interest in the subject of the trust, nor in its avails. His interest is contingent upon his surviving his mother. Not having a vested legal estate in or lien upon the mortgaged premises, nor a vested interest in the avails of them when converted into money, he is not a necessary party to this action.” This decision is conclusive against the proposition of the plaintiffs, which is at the bottom of'this whole litigation, namely, the proposition that the children of Mrs. Curtis, who had at the time of the foreclosure proceedings only a future contingent equitable right, were necessary parties to those proceedings,—a proposition wholly unfounded in law or in the reason of the thing.
    . III. This action is barred by the statute of limitations. (The argument under this point is omitted because it does not appear to have been considered in the decision of the court).
    IV. The plaintiffs cannot maintain this action, because their deeds are void under the statutes, on the ground that the lands were at the time of the delivery of such deeds held adversely. The statutes are as follows : “ All grants of land shall be absolutely void, if at the time of the delivery thereof such land shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” 1 Edm. Stat. 690, § 147 ; Rev Stat. 7 ed. p. 2196, § 147. “ Such an action may be maintained by a grantee, his heir or devisee, in the name of the grantor, or his heir, where the conveyance, under which he claims, is void, because the property conveyed was held adversely to the grantor.” Code, § 1501. It is shown that in the brief in Townshend v. Frommer, p. 101, that the deeds from the children of Mrs.. Curtis to John Townshend, made in November, 1885 were void under the statute just quoted. We proceed now to show that (1) the alleged conveyances by way of alleged execution of the power in trust, and (2) the alleged conveyance by the children of Mrs. Curtis afterwards made to John Townshend were also “ absolutely void.” It is admitted that- at the respective times of the alleged conveyances just mentioned the defendants were in the actual possession of the locus in quo, claiming an absolute title thereto. Upon these facts it is clear that these alleged conveyances are absolutely void under the statute. This is true in reference both (1) to the alleged conveyance by way of alleged execution of the power in trust to the Curtis children, and (2) the alleged conveyances by the Curtis children to John Townshend. Plaintiffs may attempt to show that the statutes above quoted do not apply to the alleged conveyances by way of execution of a "power in trust. But any such suggestion is put at rest both by the positive language of the statute already quoted, and by the following statute, which expressly provides, that any conveyance in execution of a power must, like any other conveyance, “ be sufficient in law to pass an estate.” The statute is as follows : “ No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner.” Rev. Stat. 7 ed. p. 2192, § 113. “ If the person executing the power ” in the present case had been “ the actual owner,” the deed would have been “ absolutely void ” under the statute first above quoted. The statute last quoted makes a deed in execution of a power, in such a case, equally void.
    V. The exception of the plaintiffs should be overruled, their motion for a new trial denied, and an order made that the defendants recover judgment on the verdict herein, with the costs of this action and of this application.
   By the Court.—Freedman, J.

This is an action of ejectment. At the trial the court directed a verdict for the defendants and ordered plaintiffs’ exceptions to be heard in the first instance at general term.

In the case of Townshend v. Frommer, 57 N. Y. Superior Ct. 90, in which with an exception to which reference will be shortly made, the facts were almost identical, it was held by the general term of this court that the children of Mrs. Curtis, at the time of the foreclosure suit, had no estate whatever in the lands in question, but only a contingent equitable right under a power in trust to call for the execution of the power, (the contingency being that they should survive their mother,) and that consequently they were not necessary parties to the foreclosure suit.

In that case there was no evidence of any execution of the power in trust; The plaintiff in that case proceeded upon the theory, that the children of Mrs. Curtis took an estate in remainder by the trust deed, and this theory was pronounced untenable.

In the case at bar the plaintiffs come with conveyances by way of an alleged execution of the power in trust, and upon them they ask this court to adjudge that such alleged execution of the power gives them an estate by virtue of which they can maintain this action of ejectment. This seems to be the only new element in the present case that was not in the case of Townshend v. Frommer.

But I do not see how this new element can work the result claimed. The decision in the case last referred to established that, at .the time of the commencement of the foreclosure suit and the entry of the decree therein, the whole estate was in Mrs. Racey and in Mrs. Curtis, in Mrs. Racey for life and in Mrs. Curtis in fee in reversion ; that Mrs. Racey and Mrs. Curtis and the heirs of Mrs. Curtis were barred by the decree in the foreclosure suit; that the whole legal estate passed to the purchasers at the Master’s sale ; and that for these reasons the children of Mrs. Curtis, as the holders of a merely contingent right in equity which did not give them an estate in the land, were not necessary parties. If that decision is correct, and its correctness must be assumed here, it follows that, at the time of the alleged execution of the power in trust, the defendants held the whole legal estate in the land, and still hold the same, under and by virtue of the superior and prior lien given by the mortgage and the foreclosure and sale thereunder, and that, therefore, the estate of the defendants was neither divested nor subject to be divested, by any alleged execution of the power in trust. If the children of Mrs. Curtis have any right left which can be asserted, it must be asserted in equity. They are in no position to maintain ejectment.

The exceptions of the plaintiffs should be overruled and their' motion for a new trial denied, and judgment should be given for the defendants on the verdict, with costs.

Tbuax, J., concurred.