author: By the Court, Robertson, J.

text:
    Morgan A. Dayton et al. executors of the will of Sarah Ann Riley, deceased, plaintiffs and respondents, vs. Francis R. Tillou et al. executors of the will of Thomas Riley, deceased, defendants and appellants.
    1. Pictures, statues and curiosities may pass under a bequest of “ household goods and household furniture," according to their connection with the owner’s residence, the frequency of access to them, and their mode of being used by himself and his family. They do so pass when employed as permanent ornaments, and displayed constantly as such in his 2-esidence. Their temporary absence therefrom, caused by a mere delay to remove them in case of a change of residence, without evidence of an intent to abandon such previous use of them, does not deprive them of their character as household goods or furniture.
    2. AVhere a testator, the owner and keeper of a public hotel, leased to a successor in business, before making his will, such hotel at a certain rent, and at a separate rent some tables, chairs, billiard tables, plated and glass ware, plate, and a time piece previously used in such hotel, and a collection of curiosities previously kept there as an attraction for guests, and also left on deposit in such hotel, to'be removed at .his pleasure, certain pictures, statues and casts,

      Sold, that under the bequest of household furniture and household goods, 1st. Tables not used for the public refectory at the hotel, mirrors, glass ware. and marble clock would pass.
    2d. That curiosities at the testator’s private residence, and pictures, statues and casts, not used as ornaments of the public bar room in the hotel, but only left there until he should remove them, would also pass.
    3d. Silver plate, not previously used in the testator’s private residence, curiosities not found there, large vessels, suitable only for a hotel, as well as billiard tables with their appurtenances, used at the hotel, did not pass.
    (Before Boswobth, Ch. J. and Robeetsou and Babboub, JJ.)
    Heard December 12, 1862;
    decided May 16, 1863.
    This action was brought by Morgan A. Dayton and Stephen Pell, the executors of the will of Sarah Ann Riley, deceased, against Francis R. Tillou and Benjamin D. Brush, the executors of the will of Thomas Riley, deceased, to recover certain articles claimed to have been specifically bequeathed by Mr. Riley, the defendants’ testator, to his wife, the testatrix of the plaintiffs, as well as profits eo nomine made on their hire since the death of the testator. The issues in it were tried on the 7th of February, 1862, before Mr, Justice White, without a jury, who adjudged the delivery of the articles sued for, and. the payment of certain sums received by the defendants, for the use of them since the testator’s death. The present appeal is from that judgment. The decision-of the judge before whom the case v^as tried, contains findings of fact and conclusions of law.
    The facts found were substantially as follows:
    I. The defendants’ testator (Riley,) the original owner of the articles in controversy, died in January, 1859, leaving a last will dated in April, 1857.
    II. At the time of his death he was the owner and (by his bailee for hire,) was in possession of the articles claimed in the complaint. The defendants had received $278.26 for such hire, and a demand before suit brought was made upon them to deliver such articles and pay such money.
    III. He died seised in fee- of a building known as the Fifth Ward Museum Hotel, and a house in Yarick street, (Ho. 24,) and possessed of considerable personal estate.
    IY. From 1834 to 1851, he and his wife (the testatrix of the plaintiffs,) oroupied such hotel, in which the articles claimed were kept. After an addition had been made to the hotel, they occupied and furnished such additions.
    Y. In 1851 Mr. Riley rented the hotel with the articles in it, claimed by the plaintiffs, removed with his family to his-house in Yarick street, where he resided until his death. He took with him such part of the household furniture as he had previously used in the hotel for his family, in the part occupied by it as a residence.
    ■ YI. He furnished his house in Yarick street sufficiently, including, some articles of curiosity and ornament similar to those mentioned in the complaint.
    YII. and YIII. Mrs. Riley at the time of her husband's death, took possession of the furniture in the house, and used it until her own death.
    IX. At the time of Mr. Riley’s death, and also at the date of his will, the articles mentioned in the complaint were in the hotel, and he received a yearly compensation for their use, in addition to rent for the building.

      X. The plaintiffs were executors of Mrs. Riley’s will. She died in 1850.
    Mr.- Riley, in his will, bequeathed to his wife all his household goods and household furniture, of every kind and description. He then gave a legacy of a watch, followed by a bequest of the “net profits of the residue of his personal estate,” to two persons for life. After devising his real estate to his wife for life, he devised and bequeathed the remainder of his estate to certain other persons. A power of sale after Mrs. Riley’s death, of all the remainder, was given by the will to the executors. His will was proved in March, 1859.
    The articles in controversy consisted principally of coins, stuffed skins of animals, dried insects, antiquities, foreign and-domestic weapons of various kinds, composing a species of museum.. This formed an attraction for customers at the hotel, and furnished a name to it. The rest were pictures, prints, one marble and several plaster statues, a time piece, some tables, chairs, billiard tables and appurtenances, and plated and glass ware and plate.
    Several of the articles in controversy were in Mr. Riley’s house at the time of his death, where they remained after-wards. There was no evidence as to the person by whom, or the circumstances under which they were taken there, or how long before his death. -,
    The first tenant of the hotel after it was quitted by the Rileys, (Wright,) testified that he hired the hotel from Riley, and he paid a per centage on the value of the curiosities and fixtures. He detailed four conversations with Riley, two or more of them being in the presence of his wife, respecting some of the articles in controversy. His statement of the first conversation was admitted under exception. It took place on the day he took possession of the hotel, when the Rileys were preparing to leave. Riley desiring to remove some small pictures, his wife said,- “ there was no use in removing them; if she wanted them any time she could get them.” The witness assented. Mr. Riley however, said: “ The curiosities may be left here; what is the hotel without the attractions.” Another occasion was when some one applied for a picture, and Riley said nothing could be removed. ' “If I go to remove orce thing I might remove all of them. * * I don’t wish to disturb any thing at all of the things here. The hotel is not worth any thing if they go, and if I die I don’t want them disturbed. A great many of them belong to Mrs. Riley, and I don’t want them taken away.” In reference to a proposition, on a third occasion, to sell the curiosities, Riley said he would have to consult his wife, “ she owned a great many of them, and was to own all of them.” On the last occasion, Riley agreed to furnish a new set of curtains to his wife, if she would agree to sell an old set to the witness, which she did. He frequently said, in speaking of'such articles, “They will belong to Mrs. Riley at my death, and I want to keep them together.”

    It was admitted on the trial that the plaintiffs’ testator received hire' for the use of the articles in the hotel in the complaint.
    The judge before whom the cause was tried, found as conclusions of law:
    I: That the articles in controversy passed to Mrs. Riley under the bequest of “ household goods and furniture” to her in her husband’s will.
    II. That the plaintiffs were entitled to the possession of such articles as executors, and to receipt of the sum paid as hire.
    ■ III. That the costs of both parties should be paid out of the testator’s estate.
    Exceptions were filed to the decision in question, and an appeal taken from the judgment entered thereon.

      S. E. Lyon, for the defendants, appellants.
    I. The testator, when he made his will, being a householder, possessed of a sufficient supply of household furniture for all the purposes of the house then occupied by himself and his wife, and which he gave to her for life, must have contemplated and intended that this bequest should apply to the goods used as furniture in the house then occupied by them, and which she would have the right and means to occupy after his death.
    1. The articles in question had been used in the business of the testator, and were a part of the attractions and appurtenances to the business earned on in the hotel, both when he kept the hotel, and when he let the premises, and therefore did not pass under the words “ household goods” or “household furniture.” ■
    2. The articles in question were not only not used as “household goods” or “household furniture,” but do not fall within the meaning of such words, either in the popular or technical sense, and hence are excluded from the bequest as not ejusdem generis.

    3. The repetition' of the word “household,” as controlling the succeeding words “goods,” and “furniture,” indicates not only the intention of the testator, but limits the character of the bequest.
    II. The coins, curiosities, &c. which, at the time of the death of the testator, were in the Fifth Ward Museum Hotel, can not he comprehended in the term “ household goods and household furniture.” (Webster’s Dict. 1 Roper on Legacies, 1st Am. ed. 189-203. Trafford v. Berrige, 1 Eq. Cas. Abr. 201.) The words “ goods and furniture,” in their usual sense, denote “ goods, vessels, utensils, and other appendages necessary or convenient for housekeeping.”

    The articles in question are not “ necessary or convenient for housekeeping,” nor are they “ household articles necessary or convenient for housekeeping.” (Pratt v. Jackson, 1 Bro. Parl. Ca. 222. Crichton v. Symes, 3 Atk. R. 61.)
    III. The articles in question could not have been intended by the testator to pass to Mrs. Riley, nor can his will hear such a construction, as he gave her a handsome income. The articles in question could have been of no use to her in her household affairs. And he made a subsequent bequest of the interest money and profits arising from his personal property. And also disposed of the residuum of his estate. (Crichton v. Symes, ubi. sup.)

      IV. The judge, at special term, erred-in allowing testimony to be introduced, by the respondents, in relation to conversations and statements of the testator long prior to the inaking of his will (1 Roper on Legacies, p. 253, last ed. Nicholas V. Osborn, 2 P. Wms. 419.)
    (G. G. Sickles, for the plaintiffs, respondents.
    I. Although a few of the articles may not come under the word “ furniture,” the words “ household goods ” will embrace the whole, with the enlarged and comprehensive words “ of every kind and description” added. (Cole v. Fitzgerald, 1 Sim. & Stuart, 189. S. C. 3 Russell Chan. Cases, 301. 2 Williams on Executors, 1022-3. Pratt v. Jackson, 2 P. Wms. 302. 1 Roper on Legacies, ed. of. 1848, p. 253. Bunn v. Winthrop, 1 John. Ch. 328.)
    (1.) The will must be most favorably and benignly expounded to pursue, if possible, the intention of the testator. (Touchstone, 434. 2 Bl. Com. 381.) The court will give effect to every word of the will, without change or rejection, provided an effect can be given to it not inconsistent with the intent. (Gray v. Minnethorp, 3 Vesey Jr. 105. Constantine v. Constantine, 6 id. 102. Doe v. Rawding, 2 Barn. & Ald. 448.) That intention is to be ascertained from the whole will taken together,- in connection with the situation of the testator’s property and family at the time it Was made. (Irving v. De Kay, 9 Paige, 521. Wolfe v. Van Nostrand, 2 Comst. 436.)
    (2.) The testator must, in general, be presumed to have used words in their natural, Ordinary or primary sense. (Matter of Hallet, 8 Paige, 375. Roosevelt v. Thurman, 1 John. Ch. 220. Hone v. Van Schaick, 3 Barb. Ch. 488. S. C. 3 Comst. 538. Cromer v. Pinckney, 3 Barb. Ch. 466.)
    III.. The intention of the testator is clear. The bequest includes all the household goods, and all the household furniture of. every kind and description; and the court can not give effect thereto^ except by saying that every article of household goods and household furniture, wheresoever situated, or in whose possession the same may be at the time of the testator’s death, whether at No. 24 Yarick street, or at the Museum Hotel, passes. (Cole v. Fitzgerald, 1 Sim. & Stuart, 189. 3 Russell, 301. Bunn v. Winthrop, 1 John. Ch. 329.)
   By the Court, Robertson, J.

The evidence of the successor of the decedent (Riley) goes far to sustain an ownership of many of the articles in controversy hy Mrs. Riley before her husband’s death; particularly as several of them were at his residence at the time of his death. The language of the testator never referred to his giving them to her. But as the claim is under the will it must stand upon it exclusively.

“ Household,” as used in the second clause of the will, is susceptible of two meanings. It may designate the character of the goods or furniture wherever or iü the possession of whomsoever they may he, or it may indicate whatever is connected with the testator’s domestic establishment, and employed as articles of use or ornament; although it may not be what is ordinarily known as furniture.

If “household furniture” is confined to articles ordinarily used as such, it is not very easy to determine what comes within the denomination. A great many articles were exempted from levy on execution and detailed in a statute of this state, including bedsteads with their appurtenances, fire irons, a stove and cooking utensils, chairs, a table and its furniture for meals, school and other hooks of a certain value, provisions, fuel, a spinning wheel, Weaving loom,- Woolen yarn and cloth, and even live stock and family pictures. (2 R. S. 367, § 22.) Yet a subsequent statute exempts frota execution, in addition to those thus specified, “necessary household furniture’’ (Laws of 1842, ch. 157. 3 R. S. 5th ed. 646, § 23.) It wpuld be difficult to imagine what beyond the articles enumerated would-be necessary household furniture, unless all articles of use and ornament in a family were included. • This is a legislative sanction of such a meaning of the words “household furniture.” This bequest, however, goes farther and adds “household goods,” which is nomen genetalis summo and fairly embraces articles commonly used in a’ family. I think, therefore, the tables not used for a public refectory at the hotel, mirrors, glass and plated ware, and a marble clock being among the articles in controversy, would pass under one or other designation..

A testator may, however, render other things household goods or household furniture by his use of them. Books belonging to a well filled library, wines in a well stored cellar, paintings and statues in a large gallery, curiosities of an extensive museum, numerous specimens belonging to a well selected mineralogical or other collection may not he, or may be, household goods or furniture, according to their connection with the owner’s residence and his own and his family’s habitual use of and access to them. That mentor of the English language, the author of the Spectator, includes pictures as furniture, when he says “the furniture of the palaces in Venice is not very rich, if we except the pictures.” Furniture is not to he confounded.with cabinetmakers’ ware, for which it is frequently used, but implies any thing that furnishes or equips. Books, wines, curiosities, mineralogical or" other specimens, and even pictures and statues as well as plate come, under the designation of household furniture, in that sense, when .they are employed in domestic use or as ornaments of a residence. Thus in Bunn v. Winthrop, (1 John. Ch. 329,) plate was held to pass under a bequest of household goods and funiture, in consequence of being used in a family. In the case of Cole v. Fitzgerald, (1 Sim. & S. 189 ; S. C. 3 Russ. 301,) a separation of effects was made on the same distinction. The subject of that decision was a bequest of “household furniture and other household effects of or belonging to the testator’s dwelling house and premises.” It was held to include every article of personal property in the house or on the premises, intended for ornament, use or consumption. Pictures, books, wines and liquors, models, an organ, pistols and a turning lathe passed under it. Eowling pieces not kept for the defense of the house, a cow and a pony were excluded. The admissibility of a haystack turned entirely on the question whether it was kept for" consumption or sale.

Applying these principles to the articles in question, the curiosities at the testator’s house should be held to pass under the denomination used in the bequest. The finding of the court was that the decedent furnished his house including them. By keeping them at his house, he undoubtedly meant to separate them from the others and .make them household goods.

There is no evidence that the decedent took to his residence in Yarick street any pictures, prints or statues. These do not appear to have- been part of the museum, or separately hired to the occupant of the hotel. He evidently intended to remove them as he wanted them, and only left them as a temporary deposit at his wife’s request, who said she could get them as she wanted them. The testator then spoke only of leaving the curiosities, and the occupant assented to Mrs. Riley’s taking them. This does not sustain any finding that they were let with the hotel. The wife showed a strong reluctance to adandon her residence,. break up the collection of pictures and statues and dispose of goods made with her own hands. Her husband consulted her as to their disposition and recognized her ultimate ownership. This shows a strong individual attachment to them, a recognition of them as domestic objects of art and family ornament, not as things kept for sale or hire. Clearly, the mere temporary absence of them from the testator’s residence ought not to deprive them of their household character. All pictures and statues not used as ornaments of the public bar-room therefore passed under this bequest.

.The silver plate mentioned in the inventory annexed to the answer, which had not been used in the testator’s private residence, curiosities not found there, large vessels, suitable only for a hotel, as well as billiard tables with their appurtenances, used at the hotel, did not pass under the bequest.

As the judgment is erroneous, therefore, as to the ownership of some of the articles, it is also as to the hire of them, which must be apportioned according to the interest of the parties in the artiples.

If the parties can agree as to 'which of the curiosities were found at the testator’s house, what pictures, prints and statues of his were not used in the public bar-room of the hotel at the time of the testator’s decease, as well as their value, and also that of the articles herein before declared not to pass under the bequest, and the deduction to be made therefor from the value of the-hire of the articles in controversy, the judgment can be modified, without costs -to either party, by striking out or excepting such articles from the judgment, and deducting their proportionate share of the hire of all the articles therefrom. Otherwise the judgment must be modified so as to allow a reference to ascertain those facts. Judgment to be rendered according to the report thereon, and the costs of such reference as well as the plaintiffs’ costs to be paid the defendants out of the estate of their testator, except the costs of the appeal, on which none are given to either party. The order to be settled on two days’ notice before one of the judges of the court.


source: Caselaw Access Project

author: By the Court, Bosworth, Ch. J.

license: Public Domain

text:
    Luther Beecher, plaintiff and appellant, vs. George Ackerman, defendant and respondent.
    1. The purchaser of personal property pledged for a usurious loan, from the borrowéí, who agrees to pay the debt, is not a borrower within the meaning of the statute of 1837, which permits borrowers on usuryto maintain actions for relief from their contracts without paying or offering to pay principal or interest.
    2. But in an action by such a purchaser, for relief from the usurious contract, it is not a ground for dismissal of the complaint at the trial that it does not contain an offer to pay what is equitably due; but he may have such relief upon condition of making such payment, with costs.
    3. Where such a purchaser obtains a further usurious loan from the same lender, giving one note for the total amount, and pledging other property to secure the whole, the property last pledged can not be retained by the lender as security for the original loan. ■

      4. Although a debtor can not recover back securities delivered and accepted in payment of a usurious loan, yet he may compel the rescission and surrender of a guaranty for the payment of such securities, given by him at the same time.
    (Before Boswobth, Ch. J. and Mongrief and White, JJ.)
    Heard May 3,1866;
    decided May 30, 1863.
    This was an appeal by the plaintiff from a judgment for the defendant, entered on the decision of Mr. Justice Barbour, after a trial before him without a jury in March, 1862.
    In March, 1856, a Mr. Wilkins applied to the defendant, in the city of New York, for a loan of $11,000. It was agreed between them that the money should be lent to Wilkins, by the defendant, at the rate of seven per cent per annum, and one and a half per cent per month, in addition, under the name of a commission, amounting in all to over $900, to be deducted from the $11,000 at the time of the making of the loan, and retained by the defendant, and that Wilkins should give his note to the defendant for the $11,000, payable without interest four months from date, and should secure the same collaterally by an assignment and transfer to the defendant of' certain bonds issued by the county of Iowa, in the state of Wisconsin, to the amount of $22,000, then held by Wilkins. All of which was done.
    In June, of the same year, the plaintiff and Wilkins called upon the defendant together, and stated to him that the plaintiff had assumed the payment of his debt to the defendant for his loan. The plaintiff then applied to the defendant for loans to himself. An agreement was thereupon made between the plaintiff and* the defendant, that the latter should lend to the former, sums of money from time to time, as they might be wanted, upon the plaintiff’s promissory or stock notes, secured by a pledge of Iowa county bonds, or drafts of a railroad company, (Mineral Point,) and that the former should allow, and pay to the latter, two per cent per month for the use of the money so.lent, either in money or by other notes. It was also further understood between them, that the plaintiff should assume the payment of Wilkins’ note for $11,000, and that $22,000 of Iowa county bonds in the hands of the defendant, subject to his lien, had been purchased from Wilkins by the plaintiff.
    Under and in pursuance of this agreement, the defendant, prior to November, 1857, lent to the plaintiff, at sundry times, various sums of money, receiving from him, for the use of the money lent, the per centage so agreed upon, either in money or notes, and taking- therefor the plaintiff’s notes, collaterally secured as agreed upon. When Wilkins’ first note for $11,000 became due, it was twice extended; the plaintiff, upon each occasion, paying to the defendant for the extension, in money or-in account, at the rate of two per cent a month. Upon maturity of the last substituted notes, a note of the plaintiff for $12,000, payable to the defendant four months from date, was substituted in place of the Wilkins notes, of which sum upwards of $900 was for interest upon a previous $12,000 note, the difference being paid by the defendant to the plaintiff in money or in account.
    In April, 1857, the first $1-2,000 note, which had been renewed upon similar terms, for sixty days, together with another note, which had been given to the defendant by the plaintiff, for loans made to himself under the agreement, were consolidated by the- latter giving to the former one note therefor, for $28,000 at sixty days, including interest to maturity, at the rate of two per cent per month. In July following, a new note at sixty days, for $30,000, was given to the defendant by the plaintiff in renewal of that $28,000 note; with interest at the rate of two per cent per month, and a check for "the difference was "then given to the plaintiff by the defendant. For the payment of that last note the defendant held, as collateral security, bonds of the Mineral Point Railroad Company, to the amount of $16,500, and $11,000 in bonds of the county of Iowa, placed in his hands by the plaintiff, and also the Iowa county bonds for $22,000, originally pledged by Wilkins; making in' all the sum of $49,500.
    Other loans were also made to the plaintiff by the defendant from time to time, under the same agreement, for which sundry notes, including interest upon the sums lent at the rate of two per cent per month, were, given by the plaintiff,, collaterally secured by drafts drawn by the president of the Mineral Point Railroad Company upon its treasurer, payable at future dates. In November, 1857, all the last mentioned notes, with the interest, were found to amount to $35,882. It was then agreed between the plaintiff and the defendant, that those notes should be given up . and canceled. That the plaintiff should give his promissory note at six months to the defendant for the $882. That, for the balance, the defendant should receive from the plaintiff, and hold as absolute owner, nine drafts, dated and payable at Mineral Point, in the state of Wisconsin, drawn by the president of the railroad company upon its treasurer, and accepted by him, amounting in the aggregate to $35,000. And that the plaintiff ghould, by a separate instrument in writing, guaranty the payment of such drafts. The plaintiff’s notes were thereupon given up, and canceled, the drafts were delivered to the defendant, and the guaranty executed to him. The note for $882 was subsequently paid. Several months after this settlement an agreement was made between the defendant and the railroad company, whereby the time of payment of those drafts was extended by the defendant, and, in consideration of which, the company placed in his hands further securities as collateral.
    The plaintiff brought this action to procure the cancellation and surrender Of his $30,000 note, and his written guaranty, and to obtain possession of the county bonds, and the bonds and acceptan'ces of the railroad company, on the ground of usury in the loans. His complaint set up, substantially, the foregoing facts, but did not allege that he, had paid, or offered to pay, the principal sums loaned, and represented by such securities, or any part of it.
    The judge before whom the cause was tried, in his decision, held, (1.) That the plaintiff was not, within the meaning of the statute, a borrower of the $11,000 loaned by the defendant to Wilkins.
    (2.) That he was not entitled, either as the owner of the Iowa county bonds, deposited with the defendant by Wilkins, or by virtue of any substitution in place of, or subrogation to the rights of' the latter, or otherwise, to the relief prayed for, so far as concerns that $11,000, or the securities pledged to secure its payment. And that from the impossibility of determining what proportion of the securities was held for the payment of that sum, and what for the residue of $19,000, even if it were proper to make such severance, the plaintiff could not in this action have any relief touching the note of $30,000, or the collaterals 'held by the defendant as security for its payment.
    (3.) That the plaintiff was not entitled to relief under such statute, because the transfer by the plaintiff to the defendant of the drafts of the railroad company to be held, by him absolutely as owner, the plaintiff’s separate written guaranty of the payment of those drafts, and the' giving up and cancelling, of the $35,000 note, in consideration of such absolute transfer and guaranty, operated as a payment and extinguishment of that note, and terminated the relation theretofore existing between the parties' as borrower and lender.
    Judgment was entered in accordance with this decision, dismissing the complaint with costs, from which an appeal was taken on exceptions filed.

      James C. Carter, for the plaintiff, appellant.
    I. The plaintiff was at least entitled to a decree that the $30,000 note should be surrendered and canceled, and prosecution on it restrained. This point is not answered by saying that the plaintiff had a perfect defense at law to the note. This objection should have been insisted on in the answer. The defendant waived it by putting his defense upon the merits alone. (Gilbert’s Pract. in Chan. p. 220. Ludlow v. Simond, 2 Caine’s Cases in Error, 40. Grandin v. LeRoy, 2 Paige, 509. Fulton Bank v. N. Y. and Sharon Canal Co., 4 id. 132. Cumming v. The Mayor, &c. 11 id. 596. Hawley v. Cramer, 4 Cowen, 726. Underhill v. Van Cort
      landt, 2 John. Ch. 339. Truscott v. King, 2 Seld. 147. Le Roy v. Platt, 4 Paige, 77. Wiswall v. Hall, 3 id. 313.)
    II. He was also entitled to a decree to the same effect in reference to the written guaranty and his own note for §882.
    III. The plaintiff is certainly entitled to a decree, that the county and railroad mortgage bonds, pledged by himself to secure the payment of the moneys borrowed by himself from the defendant, should be restored to him, or that the defendant account to him for the proceeds, or the value of them, in case he has parted with them. #
    IV. Without reference to the provisions of the Revised Statutes, or the act of 1837, but upon general principles of equity, a court of chancery would never impose upon the plaintiff, as a condition of granting him its relief in respect of the particular securities which he himself had pledged to secure the loans to himself, the payment of what was due on the Wilkins loans. A multo fortiori should such a condition not now be imposed.
    V. But the plaintiff was entitled to a decree for the cancellation of the $30,000 note of July 30th, 1857, and the surrender of all the securities mentioned in it, for the reason that he was the “ borrower ” as to all the loans embraced in it, on the assumption that the Wilkins loans were never, in fact, paid.
    The term “ borrower,” in the provisions of the Revised Statutes and in the statute of 1837, is to be construed to embrace a surety liable on the original contract. Such a construction can only proceed upon the ground that the term “borrower” is used as the correlative of “lender” to indicate the party liable on the contract. (Perrine v. Striker, 7 Paige, 598. Cole v. Savage, 10 id. 583. Post v. Bank of Utica, 7 Hill, 391. Morse v. Hovey, 9 Paige, 197. Hungerford’s Bank v. Dodge, 30 Barb. 626.)
    VI. But, further, the plaintiff was the “borrower” as to all the loans embraced in the $30,000 note, in the strictest sense of the term.
    VII. If it were necessary to maintain that the loan to Wilkins was in this manner actually paid, we should not hesitate to do so; Should the defendant now bring an action against Wilkins .in any form, for the amount of the $11,000, a plea of payment would be abundantly sustained by proof of the facts found by the- special term.
    VIII.- We may concede that by the transaction of Nov. 2, 1857, the relation of borrower and lender between the plaintiff and defendant, as- to the loans made on the acceptances, was terminated. But this -makes the conclusion, established on other grounds, quite irresistable, namely, that the Wilkins loan was extinguished by the transaction of "October 15, ■1856.That by necessary consequence, the plaintiff was the “borrower” as to' all the loans embraced in the $30,000 note of July 3d, 1857, and-is entitled to have it canceled, the securities' pledged for its payment restored, and an account of the proceeds or value of such as the defendant has parted with.
    ■ IX. It follows ■ that the judgment appealed from should be reversed. As this result is reached without questioning the conclusions of ■ the court bélow on matters of fact, the plaintiff -is entítléd to such a decree as is before mentioned, without a new- trial. . (Marquat v. Marquat, 12 N. Y. Rep. 338. Hannay v. Pell, 3 E. D. Smith, 432.)

      David Dudley Field, for the defendant, respondent.
    I.' Two fundamental rules of courts of equity, prevent the plaintiff from recovering in this action :
    First. That when a plaintiff seeks equity, he must first do equity; 'and Second. That he can not come into equity, if his remedy is complete at law. (1 Story’s Eq. Juris. §§ 33, 49, 64. Willard’s Eq. Juris. 44-49.)
    II'. -The statute of 1837 does not give a right to come into a court of equity if none existed before. It only dispenses, in favor of a borrower, with one of the conditions on which he could obtain" relief, that is to say, that one which required him to offer" to repay the money borrowed, before he could obtain a standing in "such a court. (Act of 1837, chap. 430, §§ 3, 4, 5. Minturn v. The Farmers’ Loan and Trust Co.,
      3 Comst. 498, referring to and approving, Perrine v. Striker, 7 Paige, 598. Morse v. Hovey, 9 id. 197. Post v. Bank of Utica, 7 Hill, 391, approved, 2 Comst. 131, in which. the contrary decision in the case of Cole v. Savage, 10 Paige, 583, is overruled. Boughton v Smith, 26 Barb. 635.)
    III. As to the $11,000 borrowed by Wilkins, the plaintiff is, by his own showing, not a borrower. He is therefore not within the statute of 1837, and must do equity, if he would have equity. To the extent, therefore, of $11,000, with the interest on it, the plaintiff, can sustain no action here without offering to repay. And inasmuch as that sum is included in the $30,000 note, and he made no offer of repayment, he was properly denied relief as to that note. (Rexford v. Widger, 2 Comst. 131. Sands v. Church, 2 Seld. 347. Schermerhorn v. Talman, 14 N. Y. Rep. 93. Curtis v. Leavitt, 15 id. 254.)
    IV. If the plaintiff’s allegations were true, he had a perfect defense against any action which could be brought against him, and a right, by an action at law, to recover back any of the securities, if the pledge of them was really illegal. (Cousland v. Davis, 4 Bosw. 619.) In which action the parties would not lose their constitutional right of trial of jury. (Schroeppel v. Corning, 2 Seld. 107.)
    Y. When this action was brought, the $30,000 note and the $35,000 of acceptances had been long past due, and therefore could not be passed, so as to give a holder any new rights. This consideration, of itself, was sufficient for dismissing the complaint. (Folsom v. Blake, 3 Edwd. Ch. 442, 445. Vilas v. Jones, 1 Comst. 278.)
    YI. The nine acceptances being dated and made payable in Wisconsin, are governed by the laws of that state, (Berrien v. Wright, 26 Barb. 208; Cutler v. Wright, 22 N. Y. Rep. 474; Potter v. Tallman, 35 Barb. 182,) .and are to be presumed to be valid by that. If that law prohibited them, it should have been proved.
    YII. These acceptancés being, moreover, given in payment, can not be recovered backr

      VIII. The plaintiff’s guarantee given for these acceptances must follow the fate of the principal obligations. (Scott v. Johnson, 5 Bosw. 213.)
    IX. The same rule applies to the county and second mortgage bonds held as collateral for the note. If the note can not be obtained by the plaintiff in this action, neither can the collaterals.
   By the Court, Bosworth, Ch. J.

The sum first lent ($11,000) was borrowed by Wilkins ; Beecher was not originally connected with the loan, as principal, agent or surety. The plaintiff, subsequently to the loan, bought of Wilkins the interest of the latter in the contract to construct the Mineral Point Railroad, and the securities originally pledged to secure the payment of the $11,000, and assumed the payment thereof, and so informed the defendant. -

The plaintiff, therefore, was not, in fact, a borrower from the defendant, of that'sum, ($11,000,) nor is he a borrower of' it within the meaning of the act of 1837. (Chap. 430. Schermerhorn v. Talman, 14 N. Y. Rep. 93, 126, 131.)

He can not reclaim those securities without paying the sum borrowed and interest thereon ; and by assuming the payment of it, as part of his contract of purchase, he became personally liable therefor." (Hartly v. Harrison, 24 N. Y. Rep. 170. Burr v. Beers, id. 178. See also Murray v. Judson, 5 Seld. 73.)

The complaint should not have been dismissed, at, the trial, merely because it did not contain an offer to pay the $11,000. The plaintiff is entitled to a judgment that, on paying' that sum with interest and the costs of the action, the securities originally pledged for the payment of it, should be surrendered to him. (Schermerhorn v. Talman, supra, 129, 142, 143.)

The securities subsequently pledged, as well to secure a usurious loan made at the time of the pledge, as the original loan, can not be retained as security for the payment of that first loan. The taint of usury destroys the whole security; makes the contract void in foto, and in every of its parts. The plaintiff has an unqualified right to a restoration of all such securities. (Rice v. Welling, 5 Wend. 595. Jackson v. Packard, 6 id. 415. Hammond v. Hopping, 13 id. 505.) The cases last cited are decisive, that the note for $30,000 is void. It should he given up.

There is no consideration for the guaranty, except the usurious loans, in payment of which the acceptances to which the guaranty related, were received. The acceptances themselves being delivered' and accepted as payment,' the defendant has a right to retain them. The obligation or note of the plaintiff for the sum thus paid, if received alone, would be clearly void under the'decisions above cited. It is difficult to perceive that a guaranty of the payment of the notes, received in payment, is not as clearly void. That must be surrendered.

The judgment must be modified to conform to these views, and as thus modified affirmed. If the parties can not agree what securities were originally pledged to secure the payment of the $11,000 only,j30 as to specify them in the judgment to be entered hereon, there must be a reference to ascertain and identify them.

No costs of this appeal will be given to either party. Neither party has wholly succeeded on the appeal.


author: By the Court, Moncrief, J.

text:
    Samuel Ford, plaintiff and appellant, vs. Samuel P. Townsend et al. defendants and respondents.
    1. The modification of a judgment against one of several defendants person-, ally, upon appeal by striking out his personal liability alone forms no defense to an action upon a bond with sureties given by such defendants, conditioned for the payment of the amount of such judgment, whenever ordered by the final decision of the court, in pursuance of terms imposed by the court for its refusal to appoint a receiver of specific property upon which the judgment against the defendants had been declared to be a lien.
    2. The voluntary act of the obligors in giving such a bond, under an order which affords the party his election to give it or not, waives all objection to the authority of the judge malting the order, to require such a bond.
    (Before Bóswokth, Ch. J. and.MoNcuiBF and White, JJ.)
    Heard May 7, 1863;
    decided May 30, 1863.
    This was an appeal from -a judgment in favor of the defendants, entered upon an order dismissing the complaint upon the trial before Mr. Justice Piebbepont, on the 4th of October, I860.-
    The action was brought upon a penal bond given by the defendants in compliance with an order of court, made in a previous action against one of the defendants (Samuel Townsend) and two other persons, David and Turner, directing the appointment of a receiver, unless the defendants in that action should give such bond.
    The object of the prior action, which was brought by the plaintiff in this action, was to recover the sum of $3100 with interest, ,and to have the payment thereof adjudged a lien upon the property mentioned in .the bond upon which this action is brought. The plaintiff was adjudged entitled to that relief, and a receiver was directed to be appointed in case executions should be returned unsatisfied. On a subsequent application by the plaintiff for the immediate appointment of a receiver, -without waiting for execution, the court ordered that the defendants in that action should give a bond with two sureties for the payment of the sum recovered, in which event the lien should cease; but if they did not, a receiver should be appointed. The bond on which -this action was brought was accordingly given by the.present defendants. On appeal, the judgment in' the former action was- subsequently so far modified as to reverse it so far as it adjudged the defendant Townsend personally liable; but affirmed as to the other defendants," and as to the appointment of the receiver.
    The present action being brought upon this bond, the answer of two of the defendants (Samuel P. and Tappen Townsend,) the only ones served with process in this action, put in issue the judgment alleged in the complaint to have been recovered March 15, 1856, and the application and order therein stated, and the legality of the same. It admitted that they, conjointly with Wilbur, executed a bond, but put in issue the one stated in the complaint. It denied that upon the execution of the bond that was executed, Samuel P. Townsend took possession of the property, but alleged that the plaintiff eloigned a part of the same. They denied by their answer, that this court ever rendered any such final decision as alleged in the complaint, or by any decision ordered the defendant Samuel P. Townsend to pay any thing whatever to the plaintiff, or by any decision ordered either of the obligors to said bond to pay him any thing whatever, or that it has by any final decision ordered the defendants in said alleged action to pay him any thing, but averred that this court, by its final decision, rendered about October 17, 1857, in said action, upon an appeal duly taken, adjudged that said judgment was erroneous, among other things, in so far as it held that Samuel P. Townsend was bound to pay, or that the plaintiff was entitled to recover against him, any sum whatever, and that said judgment was in those respects .reversed.
    It denied notice of the alleged final decision, and demand of payment; and claimed that the judgment first referred to in the complaint was not lawful. It also denied the right of the judge to order the giving the bond in suit, and charged that the same was given under duress.
    On the trial of the action, a motion was made on the pleadings to dismiss the complaint, to the denial of which the defendants excepted.
    This motion was renewed after the plaintiff had given his evidence and rested; and was then granted. To which exception was taken by the plaintiff’s counsel.

      W. W. Northrop, for the plaintiff, appellant.
    I. The justice erred in nonsuiting the plaintiff. The action was properly brought in the name of Samuel Ford as plaintiff, for the bond was given to him. (Stillwell v. Hurlbert, 18 N. Y. Rep. 374. Slack v. Heath, 4 E. D. Smith, 95, 101 to 104.) The defendants waived the right to question the plaintiff’s right to sue, by not setting up in their answer that he is not the real party in interest, (Gode, § 148,) and are estopped from denying the matters recited in the bond executed by them. (Greenl. Ev. vol. 1, § 26. Sinclair v. Jackson, 8 Cowen, 544, 586. Jackson v. Harrington, 9 id. 86, 128. Jackson v. Brooks, 8 Wend. 426, 434.)
    II. The defendants’ covenant to “pay or cause to be paid to the plaintiff the sum awarded to be due him by said judgment, and all costs and charges ordered to be paid to him thereupon, whenever ordered by this court by its final decision,” is independent of and inconsistent with any liquidation of the plaintiff’s claim from the proceeds of said property,
    III. The defendants are estopped from raising the objection that a receiver has not been appointed to take possession of said property, and to sell the same, and pay over the proceeds to the plaintiff in discharge of his claim.

      S. Sanxay, for the defendants, respondents.
    I. The complaint contained no cause of action, and should have been dismissed, when first asked for; and the order dismissing it, though afterwards made, should be affirmed, and it was properly dismissed, when finally moved for, after the court had given the plaintiff a full opportunity to attempt to make out a case. i
    II. The action, if one existed, could only have been brought upon the penalty of the bond.
    III. The bond was joint and not several. (1 Shep. Touch. 375. Ehle v. Purdy, 6 Wend. 629.) By suing the defendants jointly, the plaintiff has elected to treat the bond as a joint one; he could only proceed, had he made a different'election, against each severally. (Per Buller, J. in Streatfield v. Halliday, 3 T. R. 782. See also, Cabell v. Vaughan, 1 Wms.’ Saunders, 291, f. n.; also, Bangor Bank v. Treat, 6 Greenl. 207.)
    IY. In an action like this, 'the plaintiff must recover against all or none. He could not possibly do so here, for Wilbur had not been served with process, nor appeared. (See Downey v.
      Farmers and Mechanics’ Bank, 13 S. & R. 288.) And, not being served with process, nor appearing, he is not a party. (Robinson v. Frost, 14 Barb. 537.)

      Y. The condition of the bond is not broken. Sureties are the favorites of the law, (Moore v. Paine, 12 Wend. 126,) and their engagement can not be extended beyond the very terms of their contract. (Whitcher v. Hall, 5 B. & C. 269. Miller v. Stewart, 4 Wash. C. C. R. 26, affirmed on appeal, 9 Wheat. 680. Walsh v. Bailie, 10 John. 180. Wright v. Johnson, 8 Wend. 516. Evans v. Whyle, 5 Bing. 484. S. C. 1 Moo. & Mal. 468, cited by Pitman on Principal and Surety, 34. Campbell v. French, 6 T. R. 200. Arlington v. Merricke, 2 Saund. 403. 4 Taunt. 593.)
    VI. The complaint should have stated specific breaches for which the action is brought. (2 R. S. 378. 7 Wend. 345. 4 id. 570. Julliand v. Burgott, 11 John. 6. Drummond v. Husson, 4 Kern. 60. Nelson v. Bostwick, 5 Hill, 37.)
    VII. The promise of performance in the bond is joint, and not several. There is but one thing to be done, and there can be no severance in the action. (Chit. Pl. 6th ed. 47. Platt on Cov. 117. Marshall v. Smith, 3 Shep. 17.)
    VIII. Bonds must be taken always most strongly in favor of the obligor. The condition is the language of the obligee. (Per Baldwin, Ch. J. and Fitz Herbert, J. in Bold v. Molineux, 1 Dyer, 14 b. 17 a. See also, 1 Shep. Touch. 375, 376 ; Powel on Contracts, 396, 397; Laughter’s Case, 5 Rep. 22.)
    IX. The liability of a surety can not be more than that of the principal, upon the particular transaction, or contract, in regard to which the relation of surety was created, and Samuel P. Townsend, the principal, is freed from liability, by the final decision of the general term. The absurd idea is nevertheless now advanced of malting him liable.
    X. A liability can only be incurred in the mode provided, (Drummond v. Husson, 4 Kern. 60; Bulkley v. Lord, 2 Starkie, 406,) and no such liability has arisen here.
    XI. The judge had no legal right to require any such bond to be given. It is therefore void. (U. S. v. Hipkin, 2 Hall’s

      Am. Law Jour. 80.) This question can be raised collaterally. (Broadhead v. McConnell, 3 Barb. 175.)
    XII. A bond may be discharged by parol. (Dearborn v. Cross, 7 Cowen, 48.) That this was discharged, or never meant to be availed of, is clear, from the fact that the order directing it to be given, was never made part of the judgment roll. .
    XIII. The complaint does not aver the bond to be sealed. This was necessary. (Van Santvoord v. Sandford, 12 John. 197. Macomb v. Thompson, 14 id. 207. Stanton v. Camp, 4 Barb. 274.)
    XIV. Where a number of defendants are named as joint defendants, the trial record must show all the parties to be before the court. Until then the action is in no condition to be tried.
    XV. A condition precedent to any possible liability of the defendants, even had the general term, by its final decision, decreed a liability of the defendants, was, that S. P. Townsend should be permitted to take certain personal property. The plaintiff could never recover unless he had averred and proved performance of this condition fully. (Oakley v. Morton, 1 Kern. 25.) This point was put in issue by the answer.
    XVI. The condition is, that the obligors will pay, whenever ordered by the final decision of this court. This means, whenever they are ordered. But if it should be construed to mean, whenever either is ordered, there should have been an allegation and proof as to which obligor was ordered, and when, and how. Of these obligors, only S. P. Townsend was before the general term, and, of course, was the only one who could possibly have been ordered to pay; and he, it seems,'was discharged from all liability”to pay. It is fair to construe the bond thus, that the intent was that the bond should remain inoperative, if the general term should hold S. P. Townsend to a personal liability, but if it should discharge him, the bond should, of course, be discharged also. It can not honestly be assumed that the obligors of the bond meant to bind themselves, if the general term should hold any of the other parties liable; for, if so, the bond would have said so. By no latitude of construction can any such meaning be given to it. (See also Wells v. Baldwin, 18 John. 45.)
    XVII. The action being treated as joint, and Wilbur not being served nor appearing, the plaintiff had no action when the cause was tried, (4 Hill, 563. Id. 35. And see Burnham v, DeBevorse, 8 How. Pr. 159.)
    XVIII. The judgment at general term is now the only judgment in the cause, and that provides several conditions and contingencies before‘the property in the Mercantile Hotel is liable to pay the plaintiff’s claim. That judgment discharged Townsend altogether, and by modifying and changing the judgment which was originally given, must be construed as discharging the order of December, 17, and every thing else connected with it which at all affected or modified it, including, of course, the bond given under that order.
    XIX. It was clearly proved that the plaintiff in this action had no interest in it, and was not the real' party in interest, ,and had no right to sue under sections 111-113 of the Code.
   By the Court, Moncrief, J.

The exceptions to the admission of testimony, &c. taken by the defendants upon the trial, can not be considered upon this appeal. “ The rule is to examine the decisions made by the (circuit) judge against the party who has lost the verdict, and to grant or refuse a new trial according as w;e find them erroneous or otherwise.” (Elsey v. Metcalf, 1 Denio, 323. Rogers v. Murray, 3 Bosw. 357.)

It remains, therefore, only to be considered whether the facts adduced upon the trial, assuming them to be undisputed, would entitle the plaintiff to a judgment in his favor P Did the proofs upon which the plaintiff rested his case, constitute a cause of action against the defendants named in the action ?

It appears that in the month of March/1856, one of the justices of this court, in an action wherein the present plaintiff .was the plaintiff, and Henry J. David, Don M. M. Turner, Samuel P. Townsend and'John Johnson were the defendants, made a certain judgment or decree, wherein and whereby it was adjudged, “ That the plaintiff do recover the sum of $3586, as well from the defendant Henry I. David, as from the defendant Don M. M. Turner, and from the defendant Samnel P. Townsend, respectively, (such sum being the amount of three thousand one hundred dollars, with interest, after deducting the amount of nineteen dollars and forty-three cents,) -s * * and that the plaintiff have execution against the defendants David, Turner and Townsend, severally, for such amount.” And that the plaintiff is entitled to, and * * has an equitable lien upon, the fixtures in such (Mercantile) Hotel, and what remains of the furniture comprised in the schedule to the mortgage given by the plaintiff to David S. Jones. And that a receiver be appointed to take charge of such furniture and fixtures, and sell and dispose of the same for the payment of the said sum of $3566.57, and the interest thereon, until the same be paid.”

It also appears that on the 17th day of December, 1856, this court, in the same action, ordered “ that the defendants give security within twenty-four hours, by a bond with two sureties, in the penalty of $5000, conditioned to pay to the plaintiff the sum of $3100, with interest and costs, or that a 1 receiver be appointed forthwith, of the hotel leases, furniture and fixtures mentioned in the plaintiff’s complaint. And in case such security be filed by the defendants, the owner or the owners of the said leases, furniture and fixtures, may do what they choose with the same, and that the plaintiff’s lien thereon” should cease.

Thereupon, and on the 18th day of December, 1856, a bond was executed by the defendants, in this action, in the words and figures following, to wit:

“ Know all men by these presents, that we, Samuel P. Townsend, of the city of Hew York, and Tappan Townsend, of the city of Brooklyn, and Thomas Wilbur, of the city of Brooklyn, are held and firmly bound unto Samuel Ford, of the city of Hew York, in the penal sum of $5000, lawful money, of the United States. For which payment well and truly to be made, we bind ourselves and our and each of our heirs, executors and administrators, jointly and severally, by these presents. Sealed with our seals, this 18th day of December, a. d. 1856. Whereas by a certain order or judgment made at a special term of the Superior Court, held at the city hall, in the city of Hew York, before the Hon. Murray Hoffman, one of the justices of said court, bearing date the first Monday of March, a. d. 1856, in a certain action in which Samuel Ford was and is plaintiff, and Henry I. David, Don M. M. Turner, T. Townsend and John Johnson are defendants, wherein and whereby it was adjudged that said defendants, David, Turner and Townsend were bound to pay, and said plaintiff was entitled to recover against them respectively, the sum of $3566.57, together with certain costs, amounting in the whole to a sum not exceeding $4300, subject to a certain liability of the said Ford, to pay for certain rooms and the use thereof in certain premises called the Mercantile Hotel, situate at Hos. 2, 4, 6 and 8, Warren street, in the city of Hew York, and also decreeing that said Ford had an equitable lien upon certain fixtures and furniture in said hotel for the payment of said sum, as will more fully appear by the said judgment ord'er, or judgment; and whereas the said Ford did, on the 16th day of December, 1856, apply to the said justice, the Hon. Murray Hoffman, for a modification of the said judgment order, so that a receiver might be appointed to take charge of said property in said Mercantile Hotel, which is charged with said equitable lien, and said justice did thereupon, on the 17th day of said December, order that said Townsend be permitted to take said property and do with the same as he might see fit, upon his executing a bond with two sureties, who should justify ip. the sum of $5000, conditioned to pay the amount of said recovery, as by said "order will more fully appear, reference being thereunto had. '

Now the condition of this obligation' is such, that if the above bounden obligors, or any or either of them, shall and will well and truly pay or cause to" be paid to the said Samuel Eord, the sum awarded to be due him by said judgment, and all costs and charges- ordered to be paid to him thereupon, whenever ordered by the said Superior Court, by its final decision, then this obligation to be void, and the obligors to be discharged, otherwise to be and remain in full force and virtue.

Witness our hands and seals, the day and year first above written. Samuel P. Townsend, [l. s.]

Tappen Townsend, [l, s.]

Thomas Wilbub, [l. l.]

The order of the 17th of December, 1856, having been complied with by the execution, delivery and approval of the foregoing bond, Justice Hoffman discharged the lien of the plaintiff, and the injunction and order for a receiver was also discharged.

An appeal was taken from the judgment pronounced on the - first Monday of March, 1856, to the general term of this court, and thereafter and in the month of October, 1857, the General Term rendered its decision, affirming the before recited portions of the judgment given- by the court at the Special Term, held on the first Monday of March, 1856. And also directing (in view of the fact that the subsequent modification of the judgment-by the order of the 16th of December, 1856, was not presented at the general term,) that the proceedings for the appointment of a receiver be perfected, and the property be sold by the receiver.

This action was brought upon such bond, averring in the complaint therein the facts herein before stated.

A demand was proven to have been made of the defendants Samuel P. Townsend and Tappen Townsend, prior to the commencement of this action; no demand was made upon the defendant Wilbur, nor was he served with a summons, nor did he appear in this action..

A computation was made and presented at the trial, of the amount due to the plaintiff from the defendants, in this action.

Upon the facts thus presented, in my opinion, it is quite plain that the plaintiff was entitled to judgment. A perfect cause of action is shown by a breach of the condition of the bond upon which the action is brought. The recital in the bond shows that it was given as a substitute and in lieu of the equitable lien which was adjudged to exist against certain furniture, and other property, and was conditioned “to 'pay the amount of said recovery,” being a personal judgment against David Turner and' Samuel P. Townsend, for the sum of $3566.57. Upon the delivery of this bond, the equitable lien, injunction and order for receiver were discharged. The court, by its final decision at the general term, in the month of October, 1867, ordered “the sum awarded to be due to the present plaintiff by the judgment at Special Term, and all costs and charges to be paid to him thereupon, by sustaining and affirming such portions of the judgment below, as fixed the amount of recovery, and gave to the plaintiff an equitable lien upon said furniture, &c. as security for its payment.

The objection that the order directing that a bond be given was without authority, the officer making the order having no power to make it, we are of opinion is not well taken. The plaintiff had an equitable lien upon the furniture and other articles, and an order had been made' by which a receiver was to be appointed. An application appears to have been made to the court that a receiver should be appointed forthwith, upon which the counsel for the defendant S. P. Townsend were heard, the motion was granted unless he gave a bond; this he elected to do, and gave the bond in question, and the plaintiff’s equitable lien was discharged. That order never was appealed from. The execution and delivery of the bond to the plaintiff was the voluntary act of the defendant, and was a waiver of defects, if any existed. (Franklin v. Pendleton, 3 Sandf. 572.)

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


text:
    Bushnell Stevens, plaintiff, vs. John Hauser, defendant.
    An action by an assignee in bankruptcy under the act of congress of 1841, or by his grantee, to recover possession of real property held adversely to the bankrupt, must, by the limitation prescribed by that act, be brought within two years after the date of the decree of bankruptcy, or if the cause of action had not then accrued, within two years after it did accrue.
    (Before Bosworth, Oh. J. and Mohcrief and White, JJ.)
    Heard May 11,1863;
    decided May 30, 1863.
    This was a motion for judgment upon a verdict for the defendant, taken subsequent to the opinion of the court at general term.
    The action was to recover possession of a lot of land on the north side of Forty-Sixth street in the city of Hew York. The answer was a general denial. The trial was had before Hr. Justice Barbour and a jury, on the 25th of February, 1863. The defendant objected to various parts of the plaintiff’s evidence, and his objections being overruled, took exceptions to the decisions. After the plaintiff rested, the counsel for the defendant moved to dismiss the complaint, on the ground that there was no order sufficiently authorizing the assignee to sell, and that the defendant was in possession hostile to the rights of the plaintiff during the two years allowed him to set up his right of title, and he did not do it, so that this action was now too late.
    By consent of counsel, judgment was taken for the defendant, subject to the opinion of the court at general term.

      John Townshend, for the plaintiff.
    I. The question is res judicata in this court. On a precisely similar state of facts this court ordered judgment for the plaintiff. (Stevens v. Palmer, Nov. 1862. Since reported in 10 Bosw. 50.)
    II. The plaintiff was not barred by lapse of time. The two years’ limitation prescribed by section 8 of the United States Bankrupt Law did not apply.
    (a.) This was the express point decided May 20th, 1862, by Judge Nelson in the United States circuit court, “In the matter of Conant, a bankrupt.” His language is:
    “ The limitation only applies to suits growing out of disputes in respect to property and rights of property of the bankrupt, which came to the hands of the assignee, and to which adverse claims existed while in the hands of the bankrupt, and before the assignment.” “ A short bar to suits by limitation, either by the assignee or the "adverse claimant, furnished a fit and appropriate remedy against delay, where compromise was impracticable. The last clause of the section seems conclusive in favor of this construction. The time from which the two years’ limitation begins to run is the date of the declara-' tion and decree of bankruptcy; or, if the cause of action had not then accrued, two years after it had.”
    “ The limitation has no reference to suits growing out of the dealings of the assignee with the estate after it came into his hands. These were matters for which he might be made personally responsible, and no reason existed for changing the general period of limitation any more than in the case of any other trustee dealing with trust property.”
    “-There certainly could be no reason for applying the short term in favor of persons dealing with the assignee, in respect to the estate of the bankrupt after it came into his hands, and the statute makes the limitation mutual.”

      (b.) An additional reason for holding the limitation inapplicable is, that the statute having been repealed in March 1843, can not affect causes of action arising after that date.
    ' III. If the statutory bar was applicable, the defendant was , not in a position to avail himself of it; it was not set up in his answer, and was therefore, inadmissible on the trial. (Code, §§ 74, 149.) .

      George W. Stevens, for the defendants,
    Insisted that the exceptions to the admission of evidence were well taken, and also that more than two years having elapsed since the decree of bankruptcy was made, and since the cause of action accrued, this suit could not be maintained. (Bankrupt Act, § 8. Paulding v. Lee, 20 Alabama Rep. 753. Cleveland V. Boerum, 27 Barb. 252; S. C. 24 N. Y. Rep. 613.) And that the possession of the defendant was hostile to the title of Tallmadge and Waddell. (Sherry v. Frecking, 4 Duer, 452.)
   By the Court, Moncrief, J.

It appears by the case presented upon the hearing of the motion for judgment upon the verdict had upon the trial of the issues of fact by a jury, this case presented only questions of law, whereupon the presiding justice directed a verdict subject to the opinion of the court at general term, and a verdict pursuant to that direction being ' rendered for the defendant, the justice ordered that applica- ' tion for judgment on said verdict be made at the general term; in such a case the application for judgment must be made at the general term. (Code, § 265.) A verdict having, at the trial, been directed in favor of the defendant, the rulings thereupon against him can not be considered upon this motion. The rule is to examine the decisions made by the (circuit) judge against the party who has lost the verdict, and to grant or refuse a new trial according as we find them erroneous or otherwise.” (Elsey v. Metcalf, 1 Denio, 323. Rogers v. Murray, 3 Bosw. 357.)

It appears that on Saturday, the 10th day of December, 1842, one Daniel B. Tallmadge was, in the district court of the United States for the southern district of New York, “ declared and decreed a bankrupt, pursuant to the act of congress entitled £ An act to establish a uniform system of bankruptcy throughout the United States/” passed August 19, 1841. And it was further ordered by the court “that the clerk should certify and deliver that- decree to William 0. H. Waddell, the official or general assignee in bankruptcy, appointed and designated under the rules and regulations of the court.”

The order of appointment of Waddell under date January 4th, 1842, was read in evidence.

The present action is an action of ejectment brought by the plaintiff claiming title to one of several lots of land, being part of what is known as the “ Hermitage Tract,” whereof Tallmadge was possessed, or in which he had some interest or claim, at the time of fus being so declared a bankrupt.

Whatever estate, rights or interests were possessed or claimed by the bankrupt (Tallmadge) passed to and became vested in the general assignee, by virtue of the decree declaring him a bankrupt, &c. (Ryerss v. Forwell, 9 Barb. 615.) The conveyance under which the plaintiff makes his claim, so purports. It grants unto “ Bushnell Stevens, his heirs and assigns forever, all the right, title and interest which the said bankrupt had, and which by virtue of the decrees and orders above cited, and of the act entitled An act to establish a uniform system of bankruptcy throughout the United States/ as aforesaid, became vested in” such assignee, and which he had a right to convey.

It did not appear that the general assignee in bankruptcy, had ever asserted or pretended to have any title, or claim of title or interest in or to the premises in question, unless such conveyance, some nineteen years after the decree of bankruptcy, can be treated as such.

There was proof that the defendant had been in possession sixteen or seventeen years.

Judge Nelson, in his opinion in the matter of Oonant, (Mss. May 20, 1862, says ® * “A short bar to suits by limitation, either hy the assignee or the adverse claimant, furnished a fit and appropriate remedy against delay, where compromise was impracticable. The last clause of the section seems conclusive in favor of this construction. The time 'from which the tioo years’ limitation begins to run, is the date of the declaration and decree of bankruptcy, or if the cause of action had not then accrued, two years after it had.” * * The remaining portion of the opinion not applicable to the present case, (as read from 'the extract upon the plaintiff’s points,) seems to me to indicate that the question to be determined in that case was whether a claim ¿rising out of dealings made with the assignee after the acquisition of title, possession, &c. was within the limitation, anc^it was held it was not barred.

In the present case the cause of action, if any, was perfect at the date of the decree made in 1842 ; if at that time the official assignee had gone into possession of this lot, claiming title, and the defendant or some other adverse claimant desired to dispute the title of the bankrupt or his assignee, by the plain terms of the act, and following this decision in its interpretation, the action must have been brought within two years, and, if not so brought, is forever barred.

The decision cited by the counsel for the defendant, (Cleveland v. Boerum, 24 N. Y. Rep. 613,) while entitled to great weight as expressing the opinion entertained by four of the most eminent jurists in this state, was not the opinion of the court, and can not therefore be said to be decisive on the point.

It was not shown that the bankrupt was in possession of the premises in question, at the time of the making of the declaration and decree of bankruptcy, or indeed that he ever was in possession. There was no proof of possession by the assignee, nor of a claim or pretense of a right of possession. It would seem to furnish some light upon the interest which the assignee presumed the bankrupt had at the time of the making of the decree, that he states in his application for leave to sell and dispose of the interest which the said bankrupt had, and which became vested in the assignee by the decree aforesaid,” that it can be sold only for a nominal consideration, and the costs of the assignee and his counsel therein, and the title hereby sought being of no pecuniary value to the estate.”

Under such circumstances we think it plain that the plaintiff in this action can not recover. The complaint was therefore properly dismissed, and judgment should he entered upon the verdict, for the defendant, with costs.


text:
    Alonzo Van Deusen, plaintiff and respondent, vs: The Charter Oak Fire and Marine Insurance Company, defendants and appellants.
    1. Insurers can not defeat an action on a policy of insurance issued by them, by the objection that a magistrate’s certificate required thereby was never served on them, after they had received and examined other proofs of loss presented by the insured, and stated in answer tó subsequent inquiries On his part whether there were any further proofs that ho could show, or any thing further was wanted of him, that there was not, and offered to compromise the claim, without any objection to the proofs.
    2. when a Motion to dismiss the compíaint in suóh case' at the trial, placed solely upon the ground that the papers served on the defendants were not in compliance with tho terms of the policy is denied, no objection can be raised on appeal by the insurers against such denial, that the person on whom a magistrate’s certificate required by the policy was served, was not the authorized agent of the defendants to receive it.
    8. A chattel mortgage given upon goods covered by a policy of insurance upon a stock of merchandise, including goods sold but not delivered, without parting with their possession or the right of possession thereto, will not avoid such policy, although one of its printed conditions provides that “ in case of any transfer or termination of the interest of the insured in the property, by sale or otherwise * * * the policy shall be void; and.“that in case of any sale, alienation, transfer or change of title in the property insured * * * or of any individual interest therein, such insurance shall be void; and the entry of a foreclosure of a mortgage, or the levy of an execution, or an assignment for the benefit of creditors, shall be deemed an alienation of the property.” The meaning of the words “ sale, alienation or transfer ” in such condition is to be confined to acts which absolutely divest the title of the insured.
    (Before Bosworth, Ch. J. and Moncrief and White, JJ.)
    Heard May 14, 1863;
    decided May 30, 1863.

      This was an appeal by the defendants from a judgment in favor of the plaintiff, entered on a verdict.
    The action was brought upon a policy of insurance, and was tried before Mr. Justice Hohcbief and a jury, on December .5, 1862.
    By the policy the defendants insured the plaintiff “ against .loss or damage by fire to the amount "of $5000, on merchandise hazardous and not hazardous, his own, or held by him in trust or on commission, or sold but not delivered, contained in the brick and stone building, situate Ho. 40 Murray street, city of Hew York.”
    It contained a clause declaring that “ no part of this contract can be-waived except in writing signed by the secretary.”
    Such policy contained the following conditions :
    III. “Property held in trust or on commission must be insured as such'; otherwise the policy will not cover such property ; and in case of loss, the names of the respective owners shall be set forth in the preliminary proofs of such loss, together with their respective interests therein. Property on storage must be separately and specifically insured.
    If the. interest in property to be insured be a leasehold, or any other interest not absolute, or if it be equitable, it must be so represented to the company in writing, with the true title of the insured and the extent of his interest, and so expressed in the policy in writing, otherwise the insurance shall be void, And this policy shall not be construed to protect the interest of any person not named herein.

      [Note.] By‘property held in trust’ is intended property held under a deed of trust, or under the appointment of a court of law or equity, or property held as collateral security; in which latter case, this company shall be liable only to the extent of the interest of the assured in such property.
    IV. This policy, or any claim arising under it, shall not be assigned, transferred, pledged or sold, either before or after a loss, without the consent of the company, expressed by indorsement made thereon. In case of assignment, transfer, pledge or sale, without such consent, whether of the whole policy, or of any interest in it, the liability of the company, present and future, shall then cease. And the company reserves the right to elect, either to consent to a transfer before a loss, or return a ratable proportion of the premium and cancel the policy. And in case of any sale, alienation, transfer or change of title in the property insured by this company, or of any undivided interest therein, such insurance shall be void and cease. And the entry of a foreclosure of a mortgage, or the levy of an execution, or an assignment for the benefit of creditors, shall be deemed an alienation of the property.
    In case of claim for loss or damage on a policy assigned, where there is no actúal sale or transfer of the property insured, proofs of loss shall be made by the assured, in. conformity with the conditions of this policy, the same as if no assignment had been made; otherwise this policy shall be void, and all liability on the part of this company shall cease.”
    An additional condition (VIII) required the insured, in case of loss, to deliver an account and proofs thereof to the defendants, and also to “produce a certificate under the hand and seal of a magistrate, notary public, or commissioner of deeds, (most contiguous to the place of the fire and not concerned in the loss, as a creditor or otherwise, or related to the insured or sufferers,) stating that he has examined the circumstances attending the loss alleged, and is acquainted with the character and circumstances of the claimants, and that they have sustained loss to a specified amount.”
    The goods insured were almost wholly destroyed by fire on the 5th day of December,. 1861. The plaintiff’s loss was $11,116.79. Upon the trial Elisha Peek, the agent of the defendants, in the city of New York, testified that immediately after the fire he wrote to the defendants to send somebody down to look after it, and they sent their agent Chapman, (who heard of the fire a day or two after it occurred) to examine into the circumstances. He arrived in New York on the 9th day of December, went to the scene of the fire with Peck, and made a “ critical examination,” and examined the plaintiff’s hooks of account.
    On the 10th, upon Chapman’s asking the plaintiff for his proofs of loss, the latter gave him the paper containing them, which Chapman took to the office of the defendants in Hartford, Conn, and the defendants produced it on the trial. The plaintiff and another witness testified that two or three days after this, and before Chapman left the city, the plaintiff asked him “ if there was any thing further he could do, any thing furthey they wanted of him.” The reply was, “ There was not; if there was, they ioould let him know.”

    After the plaintiff had rested, the defendants’ counsel moved to dismiss the complaint, on the ground that the paper so served on the defendants was not in compliance with the terms and conditions of the policy, as a prerequisite to the right to recover.
    The court denied the motion ; to which denial the defendants’ counsel excepted.
    In the proofs of loss it was stated in an affidavit of the insured, that such “ property was at the time of said fire subject to a mortgage executed by the £ insured,’ to Mark R. Van Deusen, of the town of Alford, Berkshire county, Mass, dated July 6, 1861, and filed in the register’s office for the city and county of Hew York, which contained the condition that the insured £ should pay the holders thereof, when due, or cause to be paid, all promissory notes which ’ had been .or thereafter might be £ made and signed by the ’ insured £ as prin-. cipal, apd indorsed or signed as surety by the ’ mortgagee. That there was no other mortgage or incumbrances on said property.”
    The counsel for the defendants offered, in evidence, the chattel mortgage mentioned in the proofs of loss, to show an alienation, transfer, or change of title, in the property insured, which was admitted, against the plaintiff’s objection and exception. It did not appear that the mortgagee had ever had the right to take possession, or had actually entered into possession of the property.
    A certificate of a notary was made and delivered to Elisha Peck, on the 13th day of December, which he sent to the home office, a day or two after he received it; but the president of the defendants testified that they never received it. The plaintiff, before the commencement of this action, called upon the defendants for payment of his claim, and they refused, but finally offered to pay .a portion of it, by way of compromise. There was no evidence that they ever requested further proofs, or objected to payment on the ground that the proofs were defective, or intimated that the plaintiff had not complied with the terms and conditions of the policy.
    The defendant’s counsel requested the court to charge the jury, that under the terms of the policy there could be no waiver, except in writing signed by the secretary, Also that the chattel mortgage put in evidence showed that there was such a sale, alienation, transfer or• change of title, in the property insured by the defendants, as rendered the insurance void, and it ceased. The court refused so to charge, to which ruling the defendants’ counsel excepted.
    The jury rendered a verdict for the plaintiff for $5254.70, and judgment having been entered, the defendants appealed therefrom.

      Henry C. Pratt, for the defendants, appellants,
    I. The court erred, in not dismissing' the complaint. The • plaintiff alleges performance of all the conditions on his part, The conditions of flie policy required the .plaintiff to produce with his proofs of loss, a formal certificate in regard to certain specified facts. None such was produced. No evidence on the part of the plaintiff shows a performance. Nor does it show a waiver of such certificate under the terms' of the policy. Nor is a waiver a performance.
    II. The court erred in not charging the jury, as requested, that there could be no waiver, except in writing signed by the secretary.
    III. The court erred in not charging the jury, as requested, that the chattel mortgage rendered the insurance void. That mortgage was a sale and transfer to the mortgagee, of the whole legal title to the goods and chattels mortgaged, being “the property insured.” (Bank of Rochester v. Jones, 4 N. Y. Rep. 497, 507. Butler v. Miller, 1 id. 496, 500. Southworth v. Isham, 3 Sandf. 448. Hull v. Carnley, 2 Duer, 99, 106. Rich v. Milk, 20 Barb. 616. Stewart v. Hanson, 35 Maine R. 508. Shuart. v. Taylor, 7 How. Pr. 251, 254.) Thereupon by the plaintiff’s own act, the policy and insurance were made void, of no effect, and ceased. (Edmands v. Mutual Safety Fire Ins. Co., 1 Allen, 311. Abbott v. Hampden Mutual Fire Ins. Co., 30 Maine Rep. 414. Orrell. v. Hampden Fire Ins. Co.. 13 Gray, 431.)

      T. D. Pelton, for the plaintiff, respondent.
    I. The defendants could waive a compliance with the conditions in the policy relating to preliminary proofs, either expressly or by implication. There is no requirement in the policy, that such waiver should be in writing, and signed by the secretary. In this case a waiver may be implied from either of the following facts:
    1. From the declaration of the defendants’ agent. (Franklin Ins. Co. v. Coates, 14 Md. Rep. 285. Clark v. New England Ins. Co., 6 Cush. 342. Conover v. Mutual Ins. Co. 3 Denio, 254.)
    2. From the silence of the defendants touching the proofs. (Ætna Fire Ins. Co. v. Tyler, 16 Wend. 400. Savage v. The Corn Exch. Ins. Co., 4 Bosw. 1. Bilbrough v. Metropolis Ins. Co., 5 Duer, 587. O’Niel v. The Buffalo Fire Ins. Co., 3 Comst. 122. Kernochan v. The Bowery Ins. Co., 17 N. Y. Rep. 428. Child v. Sun Mutual Ins. Co., 3 Sandf. 26, 42. Vos v. Robinson, 9 John. 192. Clark v. The New England Mutual Ins. Co., 6 Cush. 342. Underhill v. The Agawam Ins. Co., Id. 440. Heath v. The Franklin Ins. Co., 1 id. 257, 264. Inland Ins. Co. v. Stauffer, 33 Penn. Rep. 397. Allegro v. Insurance Co., 6 H. & J. 408. Angell on Insurance, §§ 515, 249.
    3. From the negotiations and offer of the defendants to pay a part of the claim. (Bodle v. The Chenango Ins. Co., 2 Comst.
      53. McMasters v. The Western Ins. Co., 25 Wend. 379. Westlake v. St. Lawrence Ins. Co., 14 Barb. 206, 211.)
    II. The object of the defendants in the condition requiring preliminary proofs, was fully attained. (Lawrence v. Ocean Ins. Co., 11 John. 241. Barker v. Phoenix Ins. Co., 8 id. 318.)
    III. The proofs having been accepted without objection, it is immaterial whether they were in compliance with the terms and conditions of the policy or not. The motion to dismiss the complaint was made upon a specified ground only. (Boynton v. Clinton &c. Ins. Co., 16 Barb. 254. Bumstead v. Dividend Mutual Ins. Co., 2 Kern 90.)
    IY. The mortgage put in evidence by the defendants, was not such an alienation as rendered the insurance void. (Shepherd v. The Mutual Ins. Co., 38 N. H. Rep. 232. Jackson v. Mass. Fire Ins. Co., 23 Pick. 418. Conover v. The Mutual Ins. Co., 3 Denio, 254. Angell on Ins. §§ 58, 205. 1 Phillips on Ins. 286.)
   By the Court, Bosworth, Ch. J.

The objection that the preliminary proofs do not contain the certificate of a magistrate, as required by the eighth of the conditions annexed to the policy, can not be taken for the first time at the trial. (Bilbrough v. Metropolis Ins. Co., 5 Duer, 587. O’Niel v. The Buffalo Fire Ins. Co., 3 Comst. 128.)

The objection to these proofs, taken on the motion to dismiss the complaint, was that “ the paper served on the defendants, as above, was not in compliance with the terms and conditions of the policy, as a prerequisite to the right to recover.” The terms of the objection not only do not raise any question whether the person on whom the service was made was a proper person for the purpose, but import that he was.

The plaintiff had testified that “ either Bowers (the president of the City a Fire Insurance Company which had also insured the same property,) or Chapman (the defendants’ agent) asked for the proofs of loss, and I went and got them, and handed them to them, and they examined the proofs; * * two or three days afterward we had a conversation, and I then asked if there was any thing further that I could do ; any further proofs that I could show in the case; any thing further they wanted of me; they said there was not; if so they would let me know; ” * *

The defendants, by their authorized agent, Elisha Peck, subsequently offered to settle and compromise the claim; but no complaint or intimation of the insufficiency of the preliminary proofs was1 at any time suggested.

On such a state of facts, the rule stated in Bodle v. The Chenango Mut. Ins. Co., (2.Comst, 57, 58,) should be applied, and the defect be held to he waived.

The only other question of substance relates to the effect of the giving of the chattel mortgage.

The policy declares that “in case of any transfer or termination of the interest of the insured in the property, by sale or otherwise, * ® the policy shall be void.”

The fourth condition declares that “in case of any sale, alienation, transfer or change of title in the property insured, * * or of any individual interest therein, such insurance

shall be void. And 'the entry of the foreclosure of a mortgage, or the levy of an execution, or an assignment for the benefit of creditors, shall be deemed an alienation of the property.”

The giving of the mortgage would not avoid the insurance, as being an “alienation, sale or transfer of title,” within the meaning of the policy. The mortgagee did not take actual possession, and had no right to do so until the plaintiff made default in payment of the moneys secured thereby. (Conover v. The Mutual Ins. Co. of Albany, 1 Comst. 290. Rice v. Tower, 1 Gray, 426.)

Does the giving of the mortgage work a “ change of title,” within the meaning of the policy ? If it does, then if the goods were mortgaged when insured, payment of the mortgage before the loss, would also work “a change ef title.” Such a construction makes the words equivalent to alteration in, or modification of, the nature of the title.

I think the words “ change of title,” as used in this policy, should be construed to mean some act which divests it absolutely, and thus permit the words, the entry of the foreclosure of a mortgage,” to have a natural, and not a forced application. ■

Construing the whole as permitting the insured to mortgage, where he retains possession and has the right of possession, without avoiding-the policy, then the same effect is given to an entry to foreclose the mortgage, as to the levy of an execution, either of which the parties agree shall be deemed an alienation.

Any other construction would restrict the application of the words, the entry of the foreclosure of a mortgage,” to goods mortgaged when the policy was issued, and would defeat the policy by reason of the mere fact of paying the mortgage prior to a loss.

For whatever change of title is effected by the mere execution of a mortgage, a corresponding change is produced by satisfying it.

Orrell v. Hampden Fire Ins. Co. (13 Gray, 431,) is not an authority to the point, that a mortgage is a change of title, within the meaning of a policy written like the present. The concluding part of the opinion is, that to constitute a breach of the condition of insurance, there must have been an actual sale or transfer of property, valid as between the parties.” All else that is said is qualified by the word C( perhaps,” and does not touch a point in judgment.

In Abbott v. Hampden Mut. Ins. Co. (30 Maine Rep. 414,) one article of the defendants’ by-laws was, that the policy should be void if the assured should sell or alienate the property, in whole or in part, without consent of the company. The conveyances in that case were held to be an alienation in part. This case, therefore, has not much application to the case before us.

In Edmands v. Mut. Safety Fire Ins. Co. (1 Allen, 311,) the by-laws provide that all alienations and alterations in the ownership, situation or state of the property insured by this company, in any material particular, shall make void any policy covering such property.” A subsequent mortgage of the property was said to be <£an alteration in the oionership. * * It introduces a new owner, to the extent of the sum secured by the mortgage, and to the same extent it takes away the direct interest of the assured.” That' case may be conceded to be correctly decided, upon the particular facts of the case, and yet not be an authority in support of the proposition that a mortgage, though not due, and not giving the mortgagee a right to the possession of the property, works “ a change of title/’ within the meaning of the policy, in the case at bar. In neither of the three cases last cited, does there appear to be any clause in -the by-laws to the effect that “ the entry of the foreclosure of a mortgage ” shall be deemed an alienation.

Within the good sense and spirit of the terms of the body of the policy, and of the fourth condition, the words, any sale, alienation ox'transfer” should be construed as applying to acts which terminate the interest of the assured. By the body of the policy, property “sold, but not delivered,” is insured. This shows that “sale” means an executed contract of sale, which has transferred the title. Applying the maxim noseitur a sociis to the words “ change of title,” and keeping in mind the further provision, that “ the entry of the foreclosure of a mortgage” shall be deemed an alienation, the conclusion is reasonable, and I think clear, that the change of title -here meant, is a termination of it, and that the giving of the mortgage no more worked a change of title, within the meaning of the policy, than it did a transfer or alienation. That it is not an alienation, within the meaning of the policy, is settled.

If these views are correct, the further questions involved in the other exceptions taken need not be considered, and the judgment should be affirmed.

Ordered accordingly.