author: Robertson, Ch. J. The deed executed by the defendant to the plaintiff complied, in all respects, with the written agreement between the parties ; and unless that agreement was also the result of a mistake, which'is not pretended, the defendant has not a shadow of defense on that score. The evidence is overwhelming that the written agreement was the only one made, and that all other transactions in reference to a settlement were mere negotiations and conversations, which were all merged in it. There is not a particle of evidence that the mistake, if any occurred, was mutual; that the plaintiff did not intend to procure and expect to receive a conveyance of the whole strip. The very map or diagram by which the defendant directed the deed to be drawn, contains a statement of the encroachment on the rear as well as the front. The report upon that point is clearly erroneous. McCunn, J. The dispute in this case arises from the overlapping of a wall on an adjoining lot in Thirty-second street in this city. The plaintiff and defendant bought at different times two lots adjoining each other. On the plaintiff’s lot there was a house. After the purchase it was ascertainód that the house encroached on the defendant’s lot inches in front and 4J- in rear. The plaintiff brought ejectment, and when the cause was about to be tried, an arrangement was entered into whereby the suit was' discontinued, and the number of inches on which the house encroached was conveyed to the plaintiff for the consideration of $316. The conveyance, however, not only carried with it the land on which the encroachment was, but also covered the strip back to and ending in a point in the rear of the lot. Afterwards the defendant built on his lot, and instead of adhering to his agreement, he extended his house and fence over the vacant ground he had recently conveyed to

text:
    Claus Christianson, plaintiff and appellant, vs. George Linford, defendant and respondent.
    1. If a deed complies in all respects with a written agreement between the parties, the grantee cannot set up a mistake in such deed, in omitting to include a strip of land therein, as a defense to an action to recover such strip, unless he alleges and shows that the written agreement was the result of a mistake, also.
    2. Where, in an action to recover the possession of a strip of land, the answer set up as a defense merely, that the defendant took possession of the strip with “ the knowledge, privity and consent of the plaintiff;” and not that the latter did any act to induce the defendant to take such possession or expend any money in improving the premises ; Meld, that, strictly, the answer set up neither an equitable estoppel, nor any facts to support it, but that the defense so pleaded was rather a license to occupy than an estoppel.
    3. Although evidence, which would have been admissible to prove such license has been admitted, in such case, without objection, the plaintiff is not precluded from availing himself of the defendant’s omission to set up an estoppel, in his answer, as an objection to his availing himself of it as a defense.
    4. A person encroaching upon the land of another by the overlapping of a wall, cannot resist the claim of the latter, on the mere' ground that the owner was silent during the progress of the encroaching structure.
    5. Standing by and suffering an adjoining owner to build a wall on one’s own land, is not sufficient to pass the title; and the owner is not estopped, by his silence, from setting up his title, and recovering the possession. Such a mere acquiescence without remonstrance, is not sufficient to create an estoppel.
    6. Nor can an estoppel be created by the acts,, or the silence, of an owner, where a party encroaching upon his land knew of the owner’s title by the latter having actually derived it from the trespasser.
    7. A right of action, once accrued, can.be'discharged only by satisfaction or release. A mere waiver has no effect upon it.
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 14, 1865;
    decided May 27, 1865.
    This was an action to recover possession of a piece of land in the city of New York, described in the complaint. Its boundary line is said therein to begin on a line drawn 110 feet southeastwardly from the easterly corner of Thirty-second street and the Third avenue, at a point distant 34 feet 1 inch northeastwardly from the northeasterly line of such street; and to run therefrom southeastwardly and parallel to such street" four inches and a half; thence northeastwardly 48 feet 8 inches, to a point at the distance of 110 feet one inch and a quarter from the southeasterly side of such avenue, on a line at right angles thereto; thence northwestwardly along such line an inch and a quarter ; thence southeastwardly and parallel with such avenue 27 feet 7 inches ; thence northwestwardly and parallel to such street, an inch and an eighth, and thence southwestwardly to the place - of beginning, 26 feet one inch.
    - In the year 1858 (December) the defendant and his wife conveyed to the plaintiff in fee simple the piece of ground described in such complaint, and also an adjoining strip in front thereof, which was five inches and a quarter wide on 32d-street, four inches and a half in the rear, ■ and about 48 feet 8 inches on each side. The premises conveyed by such deed are also described therein as “ being a triangular piece of ground, in breadth on 32d street-five inches and a quarter, converging to a point.” Its -width, at the distance of 34 feet one inch and a half from such"’ street, is said therein to be" four inches and a half; and at the distance of 111 feet and a half beyond, or forty-eight- feet seven inches and a half from such street, an inch and a quarter.
    The defendant had derived his title to the premises so conveyed through a conveyance from a third person, (Mr. -.Terrett) and. his wife; in 1857, and executed- such conveyance to the plaintiff in' pursuance of a written agreement made between them in December, 1858, signed by the former on the day of the date of such deed, and delivered to the counsel for the lat* ter. Such agreement was entitled in an action in which the present plaintiff was defendant and the present defendant was plaintiff. By it the latter agreed to convey by a deed in ten days, the premises described in the complaint in such action, for a certain’ price, ($316.16.) The description of the premises in the complaint is identical with that contained in such .deed. ■ , ■
    Prior to the conveyance by Mr. Terrett to the defendant, of the premises in question, a Mr. Smith was in possession of •them, occupying them and an adjoining lot owned by him, with a house pn the front,part of both, extending back 34 feet one inch, and a stable on the rear. In 1852 he conveyed such adjoining lot to the plaintiff, who entered into possession of such house, stable and premises under such conveyance and held the same until such conveyance by the defendant to him.
    The answer in this action denies every allegation in the complaint not thereinafter expressly admitted. It denies the possession by the defendant of any other than a small portion of the premises mentioned in the complaint, which he alleges he took with the plaintiff’s concurrence and consent. It also alleges that the plaintiff claims title to such premises under the deed before mentioned, to him, from the defendant and his wife, and that they were “ included in the description of the property conveyed by such deed by mistake * contrary to the direction and intention of the parties thereto, * and when the same was executed the parties thereto were ignorant that said real estate was included” in such description, “ or was conveyed thereby, and continued so ignorant thereafter until the defendant entered into possession” of the premises described in the complaint.
    The only witness to establish such mistake was the defendant. He testified that he did not read it before he signed it; that he gave his counsel directions to draw such deed by a map or diagram, (which was produced on the trial,) “ according to the stable and the house.” (a) Such counsel “ said he
    (<z) The following is a copy of such diagram :
    Mark on Stable for .center line on bl’k would draw the deed according to the map.” Subsequently he desired the defendant to execute the deed, and the latter asked him if he had been particular to draw it right; to which he replied affirmatively: The defendant then executed it, but did not think he read it over; although he could not positively swear to it; he did not know its contents ; he expected it had been made out according to his instructions. His counsel, on the other hand, testified that the defendant gave him no other directions for preparing.the deed, than that contained in the written agreement before mentioned ; he did not recollect whether the defendant read it before signing it. He further stated, that the money was paid for the strip of ground, according to' such agreement, and partly to include a compensation for damages sustained by the defendant in not having been able to build on his lot.
    The defendant also testified to a supposed oral agreement between himself and the plaintiff to convey to the latter merely the strip of his land on which the house of the latter stood, to consummate which, he stated that he signed the deed to the plaintiff. His counsel testified that a settlement of the action brought by the defendant against the plaintiff, after a good deal of conversation and negotiation between the counsel, was agreed upon ; which settlement was evidenced by the agreement in writing, of which he identified one of the copies or parts ; on that copy, signed by the plaintiff, the defendant had signed a receipt for the sum mentioned in it. The plaintiff testified that the written agreement was according to the oral understanding between him and the defendant, and that “there was no arrangement that” he “ was to have only the land covered by the house and barn.”
    The referee found, in his report, as facts, that the “ parties negotiated a settlement” of the action before mentioned, and agreed (but whether in writing or orally, he does not state,) that for a portion of the * * strip on which the present plaintiff’s house and stable stood, the latter should pay a certain sum ($316.67) to the present defendant, who should give the former a deed of so much of that strip “ as the house and stable of the present plaintiff stood uponthat the giving of such deed by the defendant for the whole of such strip, was “ by mistake that he only intended to sell to the plaintiff the portion of such strip just mentioned, which was “all that the plaintiff paid forthat such was the understanding and belief of the parties, at the time the last mentioned deed was given, but by inadvertence in drawing such deed, it was so drawn as to include the whole of said strip.”
    Evidence was also given, by the defendant, in order to establish an estoppel, or a license by the plaintiff to the former to take possession of the ground in question. The defendant testified that he commenced to build on his lot on the 1st of May, 1859, and finished in August. He saw the plaintiff there frequently during that time, “every night and morning, when he went to his work ; he lived next door,” and the defendant put his tools in the stable of the plaintiff. When the defendant’s “ wall was going up, the plaintiff ” sawed the end of his piazza steps off, * * he drew a line four inches west from the east line of his house, running to an inch or an inch and a quarter on the stable, according to the original line of the lot, * ® to saw the steps by. The piazza was “sawed off according to that line.” When the defendant started to build his wall, the plaintiff made “ a mark on the wall four inches back from the east corner of his wall * * on the rear of his house," * he said “ that is right, I believe,” to which the defendant replied, “ yes, as' far as I know.” The defendant told him he “could project a couple of courses of brick to support his piazza,” to which he replied “ he might if he had a mind to ; he cared nothing about it.” He never objected to any thing done by the defendant. In the summer of 1859, after the middle of August, the plaintiff told the defendant that his house and fence were on the grounds of the former. Upon being asked why he did not speak of it before, he replied “he thought it was right until he looked at his deed.” The defendant also testified, on cross-examination, . that in the conversation, during which the plaintiff drew the line from his house to his stable, he said “ he would have to cut off the steps on the back stoop, so that the line could be drawn straight to the marks ” the defendant’s “ surveyor made on the stable, from the marks made by the plaintiff on the ■ house.” Another -witness, a brick-layer, (Haw,) who worked on the defendant’s building, testified that the. plaintiff took, a saw from him;"when he wás commencing•'to cut the roof of his piazza; and said “ he could do it better, and save the time of the witness.” Another, witness,'.a mason, (Link,) corroborated this testimony. Other evidence was given of the plaintiff’s not interfering or:, objecting in any way to the occupation of his- ground by the defendant. The evidence of the plaintiff did not materially :alter the facts stated by the defendant and his "witnesses, as to the plaintiff’s interference. ■ ■ • ■ - ;
    Upon the foregoing evidence the referee found, in- his report, as factsthat the plaintiff lived next door to" the lot on which the defendant- was building; was daily present, and witnessed his operations. That the defendant, after building his wall 34 feet and one inch deep, proceeded to build 21 feet one inch beyond, on the jog of four inches and a half wide, “ with the plaintiff’s knowledge and consentand fhe latter “in many respects assisted him in- so doing. He sawed off the corner of his piazza to admit the defendant’s wall into that jog,-and drew * * a line from his house to his stable, designating"where the defendant’s "wall- and lin'e should be placed; made no objections to the defendant’s proceedings, but - * - * facilitated- them in- several ways, -until after "the defendant’s wall and house and fence on the line, as drawn by the plaintiff himself; had been completed.”
    The referee concluded, as matter of law, in his report; that the facts “estopped the plaintiff from-recovering said strip of land between” his' house and his stable, and gave judgment accordingly; ■
    The plaintiff filed exceptions to such report, and the present appeal is from the judgment thereon.

      John C. Dimmick, for the appellant.
    I. The finding of the referee that there was a mistake in the deed from the defendant to the plaintiff, is clearly against the evidence in the case; the proof is conclusive that there was a written agreement between the parties, and that the deed was in exact conformity with said agreement.
    II. The defendant certainly, in the face of this evidence, as to the written agreement which preceded the deed, could not in a court of equity ask for a decree correcting the deed.
    III. The referee erred in holding that the plaintiff was es-topped from setting up his title, by means of any facts contained in the evidence as found by the referee. (Miller v. Platt, 5 Duer, 272. Tilton v. Nelson, 27 Barb. 595, and cases cited.)

    IY. If the doctrine of estoppel applied, it could only apply to so much of the land as was covered by the buildings, on account of the great value and permanent character of the buildings, and not to that portion of it which the defendant simply fenced into his yard.
    Y. Even as to that portion of it covered by the walls of the defendant’s house, if the doctrine of estoppel applied to that, it could not warrant any such judgment as has been rendered in this cause; it would require a special decree defining the rights of the parties and allowing the plaintiff’s title to have full effect when the present building of the defendant shall be removed or destroyed.
    YI. This defense, by way of estoppel, is not set up in the answer, nor are any facts creating an estoppel set forth in the answer, and, therefore, no decision can be made in favdr of it.

      Geo. R. Schieffelin, for the respondent.
    I. The referee’s report upon matters of fact, stands in the place of a verdict of a jury, and should not be questioned except it be on account of error on the trial, or that the finding is so clearly unwarranted by the evidence that a verdict would be set aside on that ground. (Spencer v. Utica and Schenectady Railroad Co., 5 Barb. 337. Shuart v. Taylor, 7 How. 251. Durkee v. Mott, 8 Barb. 425. Mann v. Witbeck, 17
      Id. 388. Mazetti v. The New York and Harlem Railroad Co., Co., 3 E. D. Smith, 98.)
    II. The conclusions of law to be drawn by the referee from the facts which he has found, are correct.
    1. The plaintiff having not only passively acquiesced in the occupation by the defendant of the strip of ground for which the action is brought, but having assisted him in building upon the same, and having himself marked out the boundary line' between their respective lots, is estopped from interfering, now, with the defendant’s occupation. . (Wendell v. Van Rensselaer, 1 John. Ch. 354. Storrs v. Barker, 6 id. 166. Laverty v. Moore, 32 Barb. 347. Town v. Needham, 3 Paige, 545. Rex v. Butterton, 6 Term R. 554. Hall v. Fisher, 9 Barb. 31. Story’s Equity Jurisp. § 388.)
    2. The fact that the land had before been conveyed to the plaintiff by the defendant does not affect the question ; for the issue raised by the pleadings, as to whether the deed was drawn so as to include the said land by mistake, was decided by the referee in the defendant’s favor. The defendant had a right to prove his ignorance of the contents of the deed, that being one of the issues in the case. (Haire v. Baker, 5 N. Y. Rep. 357.)
    3. The defendant has shown that he was ignorant that the legal title was in the plaintiff, but supposed that he was building upon his own land, while the plaintiff was aware of the true state of the case. “ The presumption is, that every one is acquainted with his own rights, provided he has had reasonable opportunity to know them.” (6 John. Ch. 169.) The defendant has repelled this presumption by actual proof of his ignorance. The plaintiff has not done so. Here, then, we have the case of a man encouraging and assisting another to build upon land that he knew to be his, the other being in ignorance of the fact, and afterwards bringing an action for the land built upon. What more proper case for the operation of equitable estoppel can be imagined ?
    4. Even if the plaintiff had been ignorant of his»title, he would be estopped. “ Actual fraud is not necessary to create an estoppel. The principle is designed for the benefit of one who is misled to his prejudice, and the injury to him is the same, whether his informant deluded him through ignorance, mistake or wilful misrepresentation.” (Tilton v. Nelson, 27 Barb. 599.)
    III. The defendant is not obliged to bring an action for an injunction, but can avail himself of the estoppel, as a defense to this action.
    1. The Code has abolished all distinction between legal and. equitable remedies, and allows a defendant to set up an equitable defense to what was formerly purely a legal cause of action. (Code, § 150. Tilton v. Nelson, 27 Barb. 595, 602. Haire v. Baker, 5 N. Y. Rep. 362. Giles v. Lyson, 4 id. 600. Auburn City Bank v. Leonard, 20 How. 193, and cases there cited.)

   Robertson, Ch. J. The deed executed by the defendant to the plaintiff complied, in all respects, with the written agreement between the parties ; and unless that agreement was also the result of a mistake, which'is not pretended, the defendant has not a shadow of defense on that score. The evidence is overwhelming that the written agreement was the only one made, and that all other transactions in reference to a settlement were mere negotiations and conversations, which were all merged in it. There is not a particle of evidence that the mistake, if any occurred, was mutual; that the plaintiff did not intend to procure and expect to receive a conveyance of the whole strip. The very map or diagram by which the defendant directed the deed to be drawn, contains a statement of the encroachment on the rear as well as the front. The report upon that point is clearly erroneous.

The deed executed by the defendant to the plaintiff complied, in all respects, with the written agreement between the parties ; and unless that agreement was also the result of a mistake, which'is not pretended, the defendant has not a shadow of defense on that score. The evidence is overwhelming that the written agreement was the only one made, and that all other transactions in reference to a settlement were mere negotiations and conversations, which were all merged in it. There is not a particle of evidence that the mistake, if any occurred, was mutual; that the plaintiff did not intend to procure and expect to receive a conveyance of the whole strip. The very map or diagram by which the defendant directed the deed to be drawn, contains a statement of the encroachment on the rear as well as the front. The report upon that point is clearly erroneous.

The conclusion of the referee that the facts estop the plaintiff from recovering the strip of land between his house and his stable requires more examination. The answer only sets up that the defendant took possession of such strip with “the knowledge, privity and consent” of the plaintiff; not that the latter did any acts to induce the defendant to take such possession or expend any money in improving it. Strictly, therefore, it set up neither an equitable estoppel nor any'facts to-support it.' The - defense so pleaded seems to be rather a license to occupy, than an estoppel; and the evidence which was .admitted without objection, would have been admissible to prove such license ; the plaintiff therefore was not- precluded from availing himself - of the omission in the answer to set up an estoppel, as an objection to admitting it as a defense. .

An estoppel in equity or by matter in pais appears not to rest on the same footing, or to be as clearly defined in its nature and extent as one at law. It must be conceded however, that the act, representation or omission to act or make a disclosure, which is to create the estoppel, must be both adapted and intended to induce the -party claiming it, to adopt a course of conduct prejudicial to - himself; unless such- estoppel -should be raised; and that he must have adopted such course by reason of such act, representation - or omission.- (Dezell v. Odell, 3 Hill, 215. Plumb v. Cattaraugus Co. Mut. Ins. Co., 18 N. Y. Rep. 392. Lawrence v. Brown, 5 id. 394. Chautauque Co. Bank v. White, 6 id. 236. Jewett v. Miller, 10 id. 402. Carpenter v. Stilwell, 11 id. 61. Farrell v. Higley, Hill & D. Sup. 87.) It is' not, however, easy in all cases, to determine the extent to which such estoppel shall be carried ; nor are the boundary lines between it and a contract between-the parties, or a liability to indemnify to the- extent of his injury, the-party injured by the fraud, which' is the- sole" basis of the estoppel, clearly defined. Where that injury consists of a mere 'disbursement of - money, whose amount is liquidated and easily ascertained,- as matter of equity, the obligation of the party causing such -injury should only extend to indemnifying the party injured, by restoring the amount disbursed; and ought not-to include his making good- every thing which the party injured might have a right to infer from his acts, representations, silence or inaction, which produced1 the' injury complained of. No estoppel would be necessary in such -case to do complete justice between the parties. So, too, false-rep-' resentations made to the party injured, with intent to deceive him, and adapted to that end and actually deceiving him, so as to induce him either to act or abstain from acting on the faith thereof, furnish the basis for an action for fraud, and recovery of damages commensurate with the injury. Equity, however, may in case of such representations imply a contract by the party making them to make them good, (Montefiori v. Montefiori, 1 W. Blk. 364, per Ld. Mansfield,) and enforce it specifically by way of estoppel, in the same cases in which it would contracts in relation to real estate or those in regard to personal property where an adequate remedy could not be afforded by pecuniary compensation ; in other words, where it would decree a specific performance. In the case of a naked omission to act or disclose facts within the knowledge of one of the parties, no fraud could be inferred or presumed therefrom, unless the parties stood in some relation to each other which required the performance of such acts or making of such disclosure ; nor could á contract be implied from mere silence and inaction. The only theory of redress as well as mode of administering it in such case would be the creation, against the party who was silent' and inactive, of an estoppel as to such facts as were so clearly inferrible and by the party prejudiced, actually inferred from such silence or inaction, as to induce the performance of the acts done by him to his own prejudice in consequence of such inferribility and on the faith of such inference ; but although more might be inferred from such silence and inaction than was necessary to induce such acts, the estoppel should be limited to only the admission thereby of just enough for that purpose. (Miller v. Platt, 5 Duer, 272.)

It is upon these principles that a person holding a conveyance of land, who conceals the fact and permits another, having color of title to. or claiming it, to sell and convey it to an innocent third party, is thereby estopped from setting up such conveyance against such purchaser. (Wendell v. Van Rensselaer, 1 John. Ch. 344. Storrs v. Barker, 6 id. 166. Tilton v. Nelson, 27 Barb. 595.) But in such cases something more is necessary than mere knowledge of the fact that the pretended owner is about to sell the land to another person, and an omission to notify the latter of the claim of the real owner. The latter should be exhibited to and recognized by such intended purchaser, as being in a position where good faith and candor requires that he should disclose his title to the latter, unless he intended to relinquish it and ratify the sale by the pretended owner ; in other words, must have misled the purchaser. (Carpenter v. Stilwell, ubi supra.) There are some cases apparently to the contrary, but in all of them it will be found that some positive act was done by the party estopped, tending to create a belief in the nonexistence or relinquishment of his claim. In Storrs v. Barker, (ubi sup.) such party estopped had encouraged the other parties to deal together. In Lawrence v. Brown, (ubi sup.) stress was laid on the fact that the dowress of the decedent had not induced the belief that purchasers of his real estate at a sale by order of a surrogate, would acquire a title divested of her dower. In Dougrey v. Topping, (4 Faige, 94,) the dowress was administratrix also ; one of the terms of sale of which she was cognizant was, that a clear and satisfacfactory title should be given she or her agent was present at the sale, and she joined in the report of it. In Lowrey v. Teto, (3 Barb. Ch. 407,) the party who was estopped . had a right of redemption of mortgaged premises, but attended their sale on foreclosure, and received part of the purchase money as a judgment creditor of the mortgagor; and a mortgagee who is a judgment creditor, also, is bound to elect in which capacity he claims. (Butler v. Miller, 1 N. Y. Bep. 496.) The mere presence at a sale of chattels or personal property, of a claimant thereof, without interposing his claim, has been held in some cases to estop him from afterwards setting up such claim. (Outwater v. Dodge, 6 Wend. 397. Thompson v. Blanchard, 4 N. Y. Bep. 303. Bider v. Union India Bubber Co., 4 Bosw. 169.) But this has been limited to equitable claims, (Otis v. Sill, 8 Barb. 102,) and is only cognizable in equity, even while the claimant had urged the purchasers to buy. (Sioick v. Sears, 1 Hill, 17.)

In the present case, the only acts done by the defendant which he claims to have been the result of the plaintiff’s conduct, were, the building of the wall of the rear of his house, over twenty-one feet in length, on the plaintiff’s ground, and erecting the fence from it to the stable of the latter. The acts of the plaintiff which are claimed to have induced the defendant to commit such acts on his part, consisted solely of his taking a saw from a workman employed by the latter, after the foundation had risen to his piazza, and sawing out part of such piazza; marking a line on his house; drawing a line from thence to such stable ; and saying to the defendant, “ I believe that’s rightand that “ he would have to cut off the steps on the back stoop, so that the line could be drawn straight to the marks” the defendant’s surveyor made on the stable, from “ such marks made by the plaintiff.” His acquiescence consisted merely in not resisting, or even remonstrating against the defendants’ encroachment.

It was held by this court, at general term, in Miller v. Platt, (5 Duer, 272,) after a full review of the authorities, that standing by and suffering another to erect a building or wall on land, is not sufficient to pass the title ; and that the owner of such land is not estopped, by suffering the erection in silence, from setting up his title; and one of the difficulties suggested in the case was that a title was not necessary to make the erection of the wall' lawful. A mere license, or tenancy at will, or at most during the existence of such wall, was all that was necessary. In this case the defendant had already completed his occupation of the plaintiff’s land, by building the foundation of his wall thereon, as high as he could without cutting down the plaintiff’s piazza. His workman was on the point of doing that when the plaintiff for some purpose proposed to do it, and did it himself. Nothing seems to have been said as to the purpose for which he made the marks on his house and drew the line therefrom to the stable. His remark as to such line being right, does not refer to any standard, and is therefore not easily understood, or readily interpreted. The defendant and Ms workmen were evidently engaged in going on with the work, and without physical resistance would probably not have desisted. All, therefore, that the plaintiff did or said actively, did not add any strength to his acquiescence, without a remonstrance, which was not sufficient to create an estoppel.

But the main difficulty in the way of an estoppel in this case is, that the defendant already knew the plaintiff’s title, since he derived it from himself. The plaintiff had a right, legally, to presume that the defendant knew what was in a deed executed by himself; and whether he was careless enough to execute it without reading it, or not, the former was not bound, without due notice of it, to know that he had done so. He had a right, therefore, to consider the defendant as proceeding at his peril, with his eyes open; and the latter said and did nothing to undeceive him.

I think, therefore, upon either ground the referee’s report is erroneous, and that the judgment should be reversed, and a new trial had, with costs to abide the event; the order of reference to be discharged.

Garvin, J. concurred.

McCunn, J. The dispute in this case arises from the overlapping of a wall on an adjoining lot in Thirty-second street in this city. The plaintiff and defendant bought at different times two lots adjoining each other. On the plaintiff’s lot there was a house. After the purchase it was ascertainód that the house encroached on the defendant’s lot inches in front and 4J- in rear. The plaintiff brought ejectment, and when the cause was about to be tried, an arrangement was entered into whereby the suit was' discontinued, and the number of inches on which the house encroached was conveyed to the plaintiff for the consideration of $316. The conveyance, however, not only carried with it the land on which the encroachment was, but also covered the strip back to and ending in a point in the rear of the lot. Afterwards the defendant built on his lot, and instead of adhering to his agreement, he extended his house and fence over the vacant ground he had recently conveyed to

The dispute in this case arises from the overlapping of a wall on an adjoining lot in Thirty-second street in this city. The plaintiff and defendant bought at different times two lots adjoining each other. On the plaintiff’s lot there was a house. After the purchase it was ascertainód that the house encroached on the defendant’s lot inches in front and 4J- in rear. The plaintiff brought ejectment, and when the cause was about to be tried, an arrangement was entered into whereby the suit was' discontinued, and the number of inches on which the house encroached was conveyed to the plaintiff for the consideration of $316. The conveyance, however, not only carried with it the land on which the encroachment was, but also covered the strip back to and ending in a point in the rear of the lot. Afterwards the defendant built on his lot, and instead of adhering to his agreement, he extended his house and fence over the vacant ground he had recently conveyed to the plaintiff, and for the recovery of which this action is brought.

It is claimed by the defendant that the conveyance of the strip of ground the entire length of the lot was a mutual mistake, and that the defendant only intended to convey the number of inches which the house overlapped; also that the plaintiff was estopped from claiming his land because he did not protest when the defendant was building his house.

After a careful examination of the case, I am satisfied that neither of these grounds can be maintained. It would certainly not be very complimentary to the legal gentlemen engaged on both sides in the first litigation to believe that when a matter was in dispute, and an amicable settlement had taken place, both the counsel could have been mistaken, for they both testify that it was intended that the entire strip should pass. Besides, there are no less than two agreements in writing to that effect; the agreement to sell and the deed conveying, and in addition we have the positive testimony of the plaintiff declaring that the whole strip was intended to be conveyed. Against this strong array of testimony I can only find the evi-i dence of the defendant as to what he believed and intended to convey.

I am at a loss to conceive what theories in regard to the application of evidence could have taken possession of the referee’s mind when he found that a mistake had been made in the conveyance; for his findings in this respect are clearly against the preponderance of proof.

The remaining question to be considered is, how far the acts or admissions of the plaintiff, made when the wall was being built, will estop him from a recovery in this action.

The leading principle of estoppel is the mutuality of minds. There must be consent, or there must be entire ignorance on one side, and concealment of the facts by the other, from interested motives. If a party owning land knowingly suffers another to purchase the same, and the purchaser improves the property without the owner making knovm his claim, the law is, that he shall be barred in equity from claiming the property, without compensation for the improvements. This is the rule laid down in the case of Town v. Needham, (3 Paige, 564,) and in 7 Barb. 409, and 8 id. 102. But this principle can only he applied where the acts or admissions of the owner have been such as to mislead and injure an innocent party. In this case, 'however, the defendant positively knew he had parted with his title ; consequently he had no right to build on the premises. I hold that, where the party encroaching knows what he is doing, it is unnecessary for the plaintiff to protest, or to inform the defendant of the wrong he is perpetrating. This is established in Miller v. Platt, (5 Duer, 273,) and Swick v. Sears, (1 Hill, 17.) The encroachment in this instance was perfected before the plaintiff knew any thing of it; for I find from the evidence, that the wall was four or five feet high before the plaintiff knew what the defendant was doing on the premises, and consequently the plaintiff’s right of action had accrued ; and it is well settled that where a cause of action accrues, it can only be released for a valuable consideration.

The case of Baylis v. Usher, (4 Moore & Payne, 790,) is a leading case in establishing this doctrine. That case was an action of trespass for a wrongful distress of goods for rent. The property had never been removed, and the plaintiff had the free use of the same, and it was absolutely restored to him before suit was brought. Yet the action was held to lie. The court there clearly defined the rule to be, that where a right of action once vested, it could only be destroyed by release, or by the receipt of something in satisfaction, and such was the language of Justice Paige, in the case of McKnight v. Dunlop, (1 Seld. 537,) and of Judge Cowen in the case of Bowman v. Teall, (23 Wend. 309;) and in the case of Willoughby v. Backhouse, (4 Dowl. & Ryl. 539,) Bayley, J. said that there was no such thing as a man’s waiving his right of action when once a wrong had been committed. Indeed, the principle of law to that effect is so clear that it is useless to cite cases in support of the proposition.

The case of Miller v. Platt, (5 Duer, 273,) in this court, is an analogous case to the one under consideration, and the conclusions of law there settle the question involved here. In that case it was held that the mere standing by and suffering another to erect a building, is not effectual to give title. Also, The King v. The Inhabitants of Butterton, (6 T. R. 554;) Swick v. Sears, (1 Hill, 17.) In the case of The King v. The Inhabitants of Butterton, Justice Lawrence held that such silence could only excuse a trespass, but that it could not pass a title. Indeed, in the case of Whitney v. Holmes, (15 Mass. R. 152,) the court went so far as to say that a party cannot be barred of lands except by record or deed ; and in the case of Gerrish v. The Union Wharf, (26 Maine Rep. 13,) it was held that a written instrument, not under seal, could not estop a party from claiming his land. It might excuse trespass, but could not affect title. In the case of Bioick v. Bears, where a party purchased premises and the plaintiff stood by and saw him purchase and pay his money, and also advised him to purchase, and declare that a deed would pass the premises and make the defendant’s title perfect, it was held that in a court of law, the party so advising was not estopped from claiming the lands.

The principle could be further illustrated by citing numerous other American and English authorities, but I have satisfied myself by simply referring to the above cases.

When the defendant in this action built his wall, the evidence is clear that he knew perfectly well how .far his line extended, and that when he so built. Although the plaintiff may have passively acquiesced in the course he was pursuing, yet he was building at his peril. Such acquiescence on the part of the plaintiff does not, in my opinion, release the defendant from responsibility in this action.

The judgment should be reversed and a new trial ordered, with costs.

Judgment reversed.


source: Caselaw Access Project

author: By the Court, McCunn, J.

license: Public Domain

text:
    Sally Ann Howell, plaintiff, vs. The Knickerbocker Life Insurance Company, defendants.
    1. A policy of life insurance for a year, which contains a clause continuing it until the decease of the insured, provided, he should pay to the insurers annually, on a day named, a specified sum; and a condition that no insurance (whether original or by renewal,) should be considered as binding until the actual payment of such sum, ceases to be binding upon the insurers, in case of a failure to pay the premium so fixed for renewal, on or before the day on which it is made payable by such policy.
    2. Parol evidence of a practice or agreement on the part of' the insurers, to receive payment of premiums, after the day on which they became due, (even if admissible,) will not suffice to vary the written contract.
    3. Such a custom on the part of the insurers, or their verbal agreement to that effect, will not apply to premiums not offered to be paid until after the death of the insured.
    4. Where a premium, under such a policy, became payable on the 15th of July, but on the morning of that day, before it had been paid, the insured was struck with apoplexy or a paralysis, and continued in a dying condition until the next day, when he died; MeId, that the death occurred at a time not covered by the policy; that the insurance could not be continued under the policy beyond the day on which the annual premium was rendered thereby payable; and was neither revived nor renewed by a tender of the premium after the death of the insured, though made within a few days after the day of payment.
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 10, 1865;
    decided May 27, 1865.
    Action on a policy of insurance on the life of George E. Howell, for $5000, effected on the application and behalf of the plaintiff, and hearing date July 15th, 1853. The insurance was “ for the term of one year, commencing the 15th day of July, 1853, at twelve o’clock, noon, and ending at twelve o’clock, noon, on the 15th day of July, 1854.” The policy contained this clause : “ And it is hereby agreed, that this policy may be continued in force, from time to time, until the decease of the said George E. Howell, provided that the said assured shall duly pay, or cause to be paid to the said company annually, on or before the fifteenth day of July, in each and every year, the sum of one hundred and thirty-eight dollars and fifty cents.”

      Among the conditions annexed to the policy are the following :

      “2. No insurance, whether original or for which a renewal receipt has been issued by the company, shall be considered as binding until the actual payment of the premium.”
    3. Every contract of insurance, whether original policy or receipt for the renewal thereof, to be binding upon the company, shall first be signed by the president and secretary, and sealed with the seal of the company.”
    The complaint avers an application on the 16th day of May, 1853, by George R. Howell, the husband, on behalf of the plaintiff, for an insurance upon his life ; the delivery of the policy, a copy of which was annexed. That there was only one contract of insurance, which was to insure the whole term of the life of G. R. H.' for the annual premium of $138.50, and continued binding and valid up to, and at the time of the death of G. R. H. That it was well known to the defendants that the whole business of effecting the insurance, and continuing the same by the payment of the annual premiums, was conducted by the husband, and it was understood that he would be looked to for the payment of the premiums, as- if he had taken the insurance in his own name. The plaintiff never had any knowledge of the terms of the policy, but relied solely upon her husband to keep the same in full force, who paid the annual premium punctually on the 15th day of July in each year, and the same was fully paid down to twelve o’clock, noon, of the 15th day of July, 1862. That at or about half past ten o’clock on the morning of the 15th of July, 1862, her said husband “ was struck with apoplexy and paralysis, which rendered him speechless, and totally unable to conduct or speak of any business whatever, and he so continued all the while sinking, until the next day, when he died.” That the husband had no intention of forfeiting the insurance, but intended to pay the premiums before twelve o’clock, and had made a memorandum of that as one of the things to be done, and while there was yet time to do it, was struck down as stated, “ and could not, therefore, and did not complete the work of paying the said premium which he had intended to do.” That the plaintiff was not aware of the non-payment of the premium until about the day of the burial of her husband. Immediately thereafter, and within five days from the day when the same became due, she caused the same to be tendered and • offered to the defendants; that the defendants were notified of the death and of the facts, yet they refused to receive the premium, or recognize the validity of the policy. That it had been and was the usage and custom of the defendants to allow to persons for whose benefit insurances were effected, certain days of grace beyond the time limited for the payment of premiums, and to receive the same after they became due and treat the policy as valid, and that the policy in suit was issued and the insurance effected upon and in reference to such usage, and moreover it was “ understood and agreed ” that if any thing should happen to prevent the payment of the premium on the day, the policy should continue a reasonable time to allow the payment of the premium. That an accident did befall the husband, which prevented the payment of the premium; that he had made a bona fide commencement to pay it, and would have completed it if he had not been so struck down with apoplexy ; that he was prevented from paying the premium by an “ act of God,” and the premium was tendered and offered within a reasonable time thereafter. That her husband was “ struck with death on his first attack, and continued in a dying condition until the next day, when he breathed his last.” That the policy was in full force up to and at the time of the death of the husband. That proof of death and of interest were furnished the defendant as required by the “ terms and conditions ” of the policy, and that all the conditions of the policy were complied with. The defendants were requested to pay after the expiration of ninety days after notice of the death, and refused, &c. For a second cause of action the complaint alleged the making of the like policy and the payment of seven annual premiums prior to October 31, 1860, by reason whereof the plaintiff became entitled to a reversionary dividend on the premiums paid. That on the 15th day of January, 1861, a dividend of $787 was declared on the said policy, payable on the termination thereof, and a certificate was issued to the effect that the holder of the policy was entitled to said dividend, ‘‘payable only upon the termination of the said policy by the death of the assured, and not to be binding upon the defendants if the policy was in any way forfeited.” It then averred the death of the husband on the 16 th of July, 1862 ; that the plaintiff was the holder and owner of the policy ; that all the premiums had been duly and legally paid and offered to the defendants ; and that said amount became due and payable to her on the 16th of July, 1862. It also averred the non-payment thereof, and demanded judgment for $787 and $5000, less the premiums which became due J uly 15th, 1862, making $5648.50, with interest from the 4th of November, 1862.
    The defendants, by their answer, admitted the making of the policy, and that the premiums were paid annually thereon, on the 15th day of J uly of each year, for eight consecutive years, continuing the policy down to, and ending with the 15th of July, 1862, and denied every other allegation of the complaint.
    The action came on to be tried before Garvin, J. and a jury, on the 25th day of April, 1864. The plaintiff’s counsel opened the case “ by stating the facts set forth in the complaint, and stating that the plaintiff would prove the truth of the same.” The defendants’ counsel thereupon moved to dismiss the complaint, on the ground that the facts stated and so proposed to be proved, would not constitute a cause of action. The motion was denied, and the defendants excepted. In the progress of the trial several exceptions were-taken to the rulings and decisions of the court, admitting proof of facts proposed to be proved by the plaintiff. In most instances, proof of the facts proposed to be proved was waived by the defendants, and the facts admitted for the purposes of the trial, subject to the objection and exception. At the close of the trial, the defendants renewed their motion to dismiss the complaint, which was again denied, and the defendants excepted.

      The jury, thereupon, under the direction of the court, rendered a verdict for the plaintiff, “ subject to the opinion of the court upon a case to be made by the plaintiff, containing the aforesaid objections and exceptions; and the court further directed that such objections and exceptions be heard in the first instance at the general term.”

      E. H. Owen and S. P. Nash, for the plaintiff.
    I. The policy insured the life of George R. Howell, not from year to year, but for the whole term of his life, and by the true construction of its provisions, it was not forfeited or avoided by the omission to pay the annual premium on any 15th of July. The premium simply became then due and payable, and constituted a debt against the assured.
    (1.) The policy was a life policy, with participation in profits. The undertaking was to pay “ to the assured all loss under this policy not exceeding the sum of $5000, within ninety days after due notice and proof of the death of George R. Howell.” That is, of his death at any time, not “ of his death within one year,” as should have been the undertaking, for a policy from year to year. (See form in Ellis on Ins. 101. Law Lib. vol. 4.) The provisos to defeat this undertaking were, death upon the seas, or beyond certain limits, entering the military or naval service, death from certain named causes, untruth of statements in the proposals, and misrepresentations in reference thereto. These only are introduced specially as matters of proviso and condition; there is no provision that the policy shall be avoided by any delay in the payment of the premium. (2.) The language of the clause, was “ that such policy might be continued in force, from time to time, until the decease of the said George R. Howell, provided that the said assured shall duly pay, or cause to be paid, to the said company, annually, on or before the 15th day of July, in each and every year, the sum of $138.50,” not, that “ this policy shall be void unless,” but only it “ may be continued in force.” It is the language appropriate to a policy from year to year, which would terminate at the end of each year, and require to be continued. The next clause favors this view : “ In case of loss, all unpaid notes, or other indebtedness, will be deducted from the sum insured,” clearly implying that notwithstanding an unpaid premium, a loss may occur within the policy, and the sum insured become due, less the unpaid premium. So where the premium is payable quarterly, the company deducts the full amount of the annual premium. ' As the undertaking of the company was already for the .whole life of the assured, and there was no provision terminating the liability on the nonpayment of premium, this printed clause, incongruous, if literally construed, should be controlled by the special arrangement with the assured, and interpreted to mean merely that the annual premium was to be $138.50, due and payable on every 15th July. Because an interpretation which creates a forfeiture is not to be favored. Where it is doubtful whether a clause be a covenant or a condition, the courts incline against the latter view as one that defeats estates.
    2. An estate or fixed interest was, therefore, already created by the express terms of the agreement. The insurance was for the whole life, the premium paid was upon that footing, the interest of the assured in the accumulated profits of the company resulted from this permanent arrangement, and the assured was liable to pay, for his whole life, the annual premiums, even though he might have desired to annul the arrangement. The printed language, therefore, “ this policy may be continued in force,” was inapplicable to the contract .really made, as the policy was, by its terms, a permanent one, liable to be avoided only by the refusal of the assured to pay the premium.
    II. The provision for the payment of the premium on the 15 th July created a condition subsequent, not precedent; a condition to defeat an insurance made and running, not a condition precedent to an insurance taking effect.
    If this were a policy insuring for a year, with a provision that it might be extended for additional years, on the payment of the premium named, such payment wotild be a condition precedent. . But, as the policy insures for the whole term of life, the most that can he claimed from this provision is, that if the premium be not paid, the insurance shall cease.
    If a lease be made for a year, to commence on a day named, provided the tenant pay a sum certain by that day, such payment is a condition precedent to the vesting of the estate, but if a lease be made for years, or for life, provided that, during the term, the tenant pay certain rents quarterly, &c. such payments are conditions subsequent. (4 Kent, 124-5.)
    A condition will be construed as subsequent, rather than precedent, as being less rigorous.
    III. If such provision be a subsequent condition, the plaintiff is entitled to recover.
    (1.) A demand of the premium on the part of the defendants, . was necessary to work a forfeiture. (Van Rensselaer v. Jewett, 2 Comst. 141. Hogeboom v. Hall, 24 Wend. 146. Moore v. Smith, 24 Ill. 512. Brooklyn Central Railroad Co. v. Brooklyn City Railroad Co., 32 Barb. 358, 367.)
    (2.) The rights given by the contract are not lost, by want of strict performance, if the failure in performance was caused by the act of God. (Wolfe v. Howes, 20 N. Y. Rep. 197. Clark v. Gilbert, 26 id. 279. Baldwin v. The N. Y. Life Ins. Co., 3 Bosw. 530.)
    The occurrences which caused the non-payment, on the day named in the policy, show such an intervention of divine agency as is properly expressed by the phrase, “ the act of God.”
    (3.) The failure of strict performance is relievable in equity on the ground of accident. (2 Story’s Eg. § 1315.) It is to be assumed in this case, that the continuance of the policy, not its forfeiture, was for the benefit of both parties. Had the assured remained on the 16th July in the same state of health that he apparently enjoyed on the morning of the 15th, it is indisputable that the company would have preferred to receive the premiums, and have the policy remain in force. The provision fixing a particular day for the payment of the premium was simply to secure its payment in fact, not to entrap the assured into a forfeiture, and, like the penalty of a bond, should be made to answer only its legitimate purpose.

      III. But whether the clause requiring payment of the annual premium he a condition subsequent or precedent, the condition was waived by the acts of the defendants..
    (1.) It being their usage and custom to allow some extension or days of grace within which to pay the premium, after the day named in the policy, and the assured having contracted in view of this usage, and it being virtually agreed between the defendants and the assured after the policy was issued that if anything should happen to him to prevent his paying the premium on the day it fell due, that the same should continue in force a reasonable time thereafter, it is well settled, that in such case the defendants are estopped from setting up the failure in punctual payment. (Buckbee v. The U. S. Ins. Co., 18 Barb. 541. Ruse v. The Mutual Benefit Life Ins. Co., 26 id. 556.) Although this latter case was reversed in 23 N. Y. Rep. 516, it was upon grounds not affecting .the case at bar.
    (2.) In this case, it is not necessary to rely upon the prospectus of the company, or other representation made prior to, or at the time of the issuing of the policy, for the case shows an agreement, subsequently, between the assured and the company, allowing the alleged grace or delay in the payment of the premiums. The cases are abundant which hold the companies to be bound by such arrangements. (Trustees, &c. v. The Brooklyn Fire Ins. Co., 19 N. Y. Rep. 305. Goit v. Nat. Trot. Ins. Co., 25 Barb. 189.) The ruling, in 23 N. Y. Rep. 516, against the admissibility of the prospectus, was abandoned on the motion for a rehearing. (24 N. Y. Rep. 653.)
    (3.) Good faith towards the assured, requires that the companies should not be permitted to take advantage of any laxity in the punctual payment of premiums, occasioned by their own agreements, representations or usages. They may hold dealers to the utmost strictness, but any indulgence calculated to throw them off their guard, should be construed rigidly against the companies, especially after the payment of numerous successive premiums may make it to their interest to forfeit the policy, and tempt them to treachery in taking advantage of delays they had encouraged.

      (4.) In view of the express agreement/that any accidental delay in the payment of the premium, on the day fixed, should not avoid the policy, the course of the defendants in repudiating- that agreement is so faithless, considering the sudden calamity which contributed to the delay, as to be utterly irreconcilable with just dealing. By it they seek to forfeit to their own use nine previously paid premiums, amounting to $1246. 50, and the store which the assured supposed he had provided for his wife and children. A fitter case for the application of the doctrine of estoppel in pais cannot be presented.
    IV. But assuming that the policy is to be considered as expiring on the 15th July, 1862, its terms are still sufficient to make the defendants liable for the sum insured.
    (1.) In the view that the policy in fact expired on the 15th July, 1863, its language would, as if it had been made on the 15th July previous, read thus : Whereas Sally Ann Howell hath proposed to effect an insurance upon the life of George R. Howell, and hath paid “ for the said assurance for the term of one year, ending at 12 o’clock, noon, on the 15th day of July,” 1862 : Now, therefore, the defendants agree to pay “ all loss under this policy,” not exceeding $5000, within ninety days after due notice, and proof of the death of the said George R. Howell. What is the loss which the defendants agreed to indemnify the plaintiff against to the extent of $5000 ? Clearly, loss or damage resulting from matters destructive of the life of her husband. She was interested in that life, as her support; the life was destroyed within the year, utterly, so far as her pecuniary interest in it was concerned ; the loss or damage against which the defendants undertook to indemnify her then occurred, and the death or consummation of the loss followed the next day, from which the ninety days were to be computed to make her indemnity due and payable.
    This point presents the question whether an assurance upon the life of a person for a year, is precisely the same thing as an assurance against death within a year. Both forms of policy are used. (See form in Ellis on Ins. p. 232; 4 Law

      Lib. 138.) In the one case it may, perhaps, he held that the assured must actually expire within the time limited by the policy ; in the other, that it is enough if within that time he receive a mortal stroke.
    (2.) The following cases show, by analogy, a basis for the distinction : A vessel insured against perils of the sea, was damaged by storm on the 26 th of April, and by reason of that damage, sunk on -the 6 th of May ; held that a parting with interest between those dates did not affect the policy, as the loss was total prior to the transfer. (Crosby v. The N. Y. Mutual Ins. Co., 5 Bosw. 369.) An insurance on horses, “ against all risks, including the risk of death,” until safely landed: A horse injured by a storm, died shortly after being landed ; held a total loss within the policy. (Coit v. Smith, 3 John. Cas. 16.) It may be said that in these cases the peril was insured against, which caused the subsequent total loss ; or, as it is stated in 1 Phil. on Ins. (§ 1148,) remarking upon Lockyer v. Offley, (1 Term R. 252,) to render the cases parallel, “ the insurance on the life should be, not against death, merely, as a life policy is, but against wounds, as a ship is against perils of the seas.” It is the effect of this very distinction that the policy in question escapes. An insurance upon the life of a person is an insurance against all death-wounds or death-risks, while an insurance against death only may not cover the perils causing death.
    A policy upon a life is, in its nature, an insurance upon the benefits which depend upon the life ; and it is a valued policy in respect to the damages to be paid for the loss of these benefits. (Per Woodruff, J., in Miller v. The Eagle Ins. Co., 2 E. D. Smith, 268, 298.) Clearly the loss has occurred when the mortal stroke falls. If it be said that this construetion makes the policy one against disease—a health, not a life policy—this might be true, did not the policy make the loss payable only after death.
    (3.) But whether the distinction above taken be well founded or not, upon the proof stated, Howell was substantially dead on the 15th July, within the life of the policy.

      Y. If any of the preceding points are well taken, they are available to the plaintiff, notwithstanding there may have been a duty on her to comply with the provisions of the policy. The fact that the policy was effected by her husband, and all the business connected with it transacted by him, entitles her to the same equitable relief, if any be necessary, that would have been applicable had her husband insured his own life, instead of having it insured by her.
    YI. The exception to the refusal to dismiss the complaint is untenable. A refusal to dismiss the complaint is not error, if the evidence subsequently given will supply any deficiencies in it; provided the cause of action be not changed. (Morton v. Pinckney, 8 Bosw. 135. Lounsbury v. Purdy, 18 N. Y. Rep. 515, 520.)

      W. F. Allen, for the defendants.
    I. The policy was for a single year, with liberty of renewal annually during the life of the person insured, by the payment of the annual premium on or before the 15th day of July in each year. The payment of an annual premium was contemplated, and not the payment of a sum in gross for the entire term. It was immaterial whether the policy was in the form adopted, or for life, acknowledging the payment of the premium for a single year, and providing for payment annually thereafter. The substance of the contract was the same In the one case the policy would become void by non-payment, in the other it would have expired, and could not be renewed or continued. (Angell on Insurance, § 284. Ellis on Fire and Life Insurance, Shaw’s ed. 105. 1 Phil. on Ins. 46, § 64.) Otherwise, the contract of insurance could not be controlled or varied by the application upon which it was based, or any negotiations preceding the making of it,
    II. The policy, however, expired by its own limitation at twelve o’clock, noon, of the 15th of July, 1862, and the payment of the premium on or before that day was, by the terms of the policy, a condition precedent to its renewal or continuance for another year, to be averred and proved by the plaintiff. (Want v. Blunt, 12 East, 183. Hammond v. Am. Mut. Life

      Ins. Co., 10 Gray, 356. Nightingale v. State Mut. Life Ins. Co., 5 R. J. 38. Boulton v. Am. Mut. Life Ins. Co., 25 Conn. R. 542. Inman v. Western Fire Ins. Co., 12 Wend. 452. Wood v. Worsley, 2 H. Bl. 574. Oakley v. Morton, 1 Kern. 25. Pike v. Butler, 4 Comst. 360. Tarleton v. Staniforth, 5 T. R. 695. S. C. 1 B. & P. 471. Simpson v. The Accidental Death Ins. Co., 2 C. B. R. 257, 89 E. C. L. Pritchard v. The Merchants and Tradesmen’s Mutual Life Insurance Society, 3 C. B. 622, 91 E. C. L.) Payment at a subsequent day would not fulfill the condition, or renew or continue the policy. '
    III. At twelve o’clock, noon, of the 15th.day of July, 1862, the life insured was in existence—George R. Howell was alive. It is so averred in the complaint, and was proved upon the trial, and is conceded by the deduction from the amount claimed, of the premium for the year commencing at that time. The defendants had not then become liable upon their contract. It is not claimed that the premium due and payable on that day was paid or offered to be paid until several days thereafter, and after the death of George R. Howell. At the time of the death, therefore, there was no insurance upon the life, under the policy in suit. The risk had terminated by the limitations of the policy. On the 15th of July it was optional with the plaintiff whether she would renew it. After that day it was optional with the defendants whether they would accept the premium and continne the risk. (12 East, 183. 10 Gray, 356. 5 R. I. Rep. 38. 25 Conn. R. 542. 89 E. C. L. Rep. 257. 91 E. C. L. Rep. 622.)
    IV. The facts alleged in the complaint, and proved or admitted on the trial, did not destroy the force of the condition, or relieve the plaintiff from its performance. The plaintiff voluntarily assumed the performance of the condition, and no-provision was made for any days of grace for the payment of the premium, as might have been and sometimes is done.
    (1.) The condition was not imposed by law, but arose out of the contract of the parties, and therefore strict performance is only excused either by the consent of the defendants or some act of theirs preventing performance. (Broom’s Leg. Max. 118. 1. H. Bl. Rep. 433; S. C. in error, 4 Term Rep. 94. 8 id. 267. 13 East, 533. Pike v. Butler, 4 Comst. 360. Harmony v. Bingham, 2 Kernan, 99.)
    (2.) A recognized distinction exists between matters in excuse of performance, when alleged as part of the defense in an action brought against the party in default, and when asserted in support of and as giving a cause of action. The more stringent rule is applied in the latter case. (Oakley v. Morton, 1 Kernan, 25. Pike v. Butler, 4 Comst. 360.)
    (3.) Even if in cases of conditions imposed by law, and not by the contract of the parties, performance may be excused, when rendered impossible by the act of a stranger, or by the “ act of God,” neither agency intervened in this case.

      (a.) George R. Howell, the husband, was in no sense a stranger to the transaction. He was the agent of the plaintiff in effecting the insurance, and in renewing it from year to year. His acts and neglects were hers, and she must abide by the consequences. She cannot assume and avail herself of such as are beneficial and repudiate others. She claims the fruits of his agency, and must take them cum onere. (Smith’s Merc. Law, 133. 7 East, 366. Farmers’ Loan & T. Co. v. Walworth, 1 Comst. 433. Cobb v. Dows, 6 Selden, 335.) Ho party can be relieved by the acts of a stranger. (Broom’s Leg. Max. 120. 7 Term R. 384. Bac. Abr. Condition, 24.)

      (b.) The payment of the premium was not prevented by the u act of God.” It was negligence to delay the payment until the last hour, and incur the risk of being prevented from performing the condition by some casual or unexpected hindrance. This excuse includes only those things which are inevitable, which no industry can avoid or policy prevent. The default of the party must not concur. The legal rights of the parties are not affected by the intention of the plaintiff and her agent, or her reasons for not attending to the payment sooner after the death of her husband.
    Y. The allegation, in the complaint, of the usage and custom of the defendants to receive premiums after the day upon which by the terms of the policy they are payable, and that this policy was made in reference to that custom, and that it was understood and agreed that the premium might be paid at a later day, if payment at the day should be prevented, could not, if established, relieve the plaintiff from the terms and conditions of the policy, and give her an action as upon a strict performance.
    (1.) There is nothing in the policy, or in the terms employed, which is ambiguous, or needs explanation or elucidation, by reference to any usage or custom. This is the only office of evidence of usage in cases of this kind. (Broom’s Leg. Max. 420.) It cannot be resorted to to vary the terms or conditions of a contract. (26 How. Pr. 197. Broom’s Leg. Max. 303. Barrett v. Duke of Bedford, 8 Term Rep. 602. Payne v. Burridge, 12 M. & W. 727. Wadsworth v. Allcott, 2 Selden, 64. Wheeler v. Newbould, 16 N. Y. Rep. 392. Dawson v. Kittle, 4 Hill, 107. Turner v. Burrows, 8 Wend. 144.) And all prior and contemporaneous agreements and understandings are merged in the written contract. (Wolfe v. Myers, 3 Sandf. 7. Erwin v. Saunders, 1 Cowen, 249. Tibbits v. Percy, 24 Barb. 39.)
    (2.) It is not claimed that the plaintiff omitted to pay at the day, relying upon such usage, or any prior dealings of the defendants with her.
    VI. It follows that the complaint should have been dismissed, on the statement and opening of the case to the jury. The exception to the refusal to nonsuit was well taken.
    VII. The exceptions to the subsequent rulings of the learned judge, in the admission of evidence, only present the same questions arising upon the sufficiency of the allegations in the complaint in another phase. It is proper to state that the rulings of the judge upon the trial were merely formal, and for the purpose of putting the case in a proper shape for deliberate examination and decision by this court at a general term. So the admissions and the waiver of formal proof of many things which probably could not have been proved, were with the same view.

      YIII. The certificate for dividends, and the right to receive them, stands upon the same footing as the claim upon the policy. The payment is made to depend on the same condition, to wit, “ the termination of the policy by the death of the assured and it was not to be binding “ if said policy is in any way forfeited.”' The policy was forfeited before the death of the assured, by non-payment of the premium, and did hot terminate by his death.
    IX. The general direction, at the close of the trial, was also erroneous. The defendants were entitled to a dismissal of the' complaint. .
   By the Court, McCunn, J.

In this case it is only material to consider whether at the time of the death of the life insured the policy had not expired ; because if the policy had expired at the time, the plaintiff cannot recover.

The insurance was for one year, and it was agreed that it should be continued or renewed from time to time until the decease of Mr. Howell, provided always that the life insured, or those interested in that life, should pay or cause to be paid annually to the company, on or before the 15 th day of July, in each year, the sum of $138.50 ; and one of the conditions annexed to the policy was that roo insurance, whether original or a renewal by receipt, should be binding on the company until the actual payment of 'the premium, and the whole frame of the policy shows that every premium must be paid during the life of the insured ; indeed, the agreement and consideration for the insurance is the payment of the yearly pre-. mium to be paid during the life of Mr. Howell, and the risk insured against is Mr. Howell’s death. It is contended, on the part of the plaintiff, that on the 15 th day of July, the day on which Mr. Howell was stricken with apoplexy, he received his death wound or mortal stroke, and that he was then dead to all intents and purposes. This cannot be, because Mr. Howell was alive and died dn the 16th; and it will not be contended that if Mr. Howell, after apoplexy had seized him, had lingered for months, and the policy had not been renewed by the payment of the premium, the.parties for whose benefit the policy was effected could have recovered, and the rule is as strict with a day of neglect as. with a year ; if they could not renew after the lapse of a year, they could not after the lapse of a day, without the consent of the company. Something has been said about an agreement on the part of the company with the deceased, to the" effect that days of grace would be allowed if the premium was not paid on the day it became due. I can find no such agreement in the case : on the contrary, the complaint alleges that the yearly premiums were all paid promptly on the 15th day of July in each and every year, agreeably to the terms of the policy.

. It is true there is evidence introduced to the effect that the company, in dealing with other persons, allowed days of grace within which to pay the annual premium beyond the time fixed by the policies, and that, in accordance with that custom, they had been in the habit in some cases of receiving premiums after the days fixed, and that it was understood and agreed verbally between Mr. Howell and the company, at the time the insurance was effected, that, if any thing should happen to him to prevent his paying, the premium on the day it became due, the policy should not become null and void. • This evidence was objected to, and should have been excluded; but even if it had not been objected to, it would not help the plaintiff's case. No verbal agreement or understanding of any kind can vary the terms of the policy, (Tarleton v. Staniforth, 5 Term R. 695; Pritchard v. The M. & T. Mutual Life Ass. Society, 3 Common Bench, N. S. 622; Buckbee v. The U. S. Insur. Co., 18 Barb. 541,) and the custom of the company or their verbal agreement, if any there was, only extended to lives in being. It could not, and was not intended to apply to premiums offered to be paid after the death of the insured. In the case of Pritchard v. The Merchants’ Life Insurance Co. where the insured had thirty days after the date fixed in the policy for the paying of the same, and the life insured died before the thirty days of grace had expired, it was held by the full bench that the parties- interested in the policy, even where the pre> mium was paid and accepted within the thirty days, could not recover.

In the case of Ruse v. Mutual Benefit Life Ins. Co. (23 N. Y. Rep. 516,) Judge Selden says : “It is plain that if we are to look at the policy alone as containing the contract between the parties, the obligations of the defendant cease upon the failure of the plaintiff to pay the annual premium on the day fixed in the policy for such payment.” The policy under consideration is almost similar to the one passed upon by that learned judge, and nothing can be more explicit on the subject of paying the annual premium than the language of the clause of the policy under consideration, and no verbal understanding can vary it. The cases of Wood v. Worsley, (2 H. Bl. 574,) Nightingale v. The State M. Life Ins. Co., (5 R. I. Rep. 38,) Want v. Blunt, (12 East, 183,) Simpson v. The Accidental Death Ins. Co., (2 Com. B. N. S. 257,) and numerous other American and English cases can be cited in support of this doctrinó, and have been unable to find in any of the books a single case tending in the slightest degree to shake this rule.

The conditions imposed' by the policy arise from the contract between the parties; they are not conditions imposed bylaw-—they are conditions precedent, and, therefore, strict performance can only be excused by consent, or by some act of the defendants. (Piker. Butler, 4 N. Y. Rep. 360. 1 H. Bl. 433. Harmony v. Bingham, 2 Ker. 99. Weston v. Collins, 12 Law Times, N. S. 5.)

It is, therefore, clear that the payment of the premium, on or before the 15th day of July, was a condition precedent to the renewal or continuing of the policy, and that, before a recovery can be had on this policy, the parties seeking such relief are bound to prove all the conditions contained therein, and especially the condition requiring the payment of the premium on the 15th of July, the day on which it became due, or at least the payment of the same before the death of Mr. Howell. (12 East, 191.)

For these reasons, we are of opinion that the death of Mr. Howell, which happened on the 16th of July, 1864, was during a period of time not covered by the policy, and that, under a fair construction of the same, the insurance could not be continued beyond the day on which the annual premium was payable, which was on the 15th of July, 1864, and was not revived or renewed by a tender of the premium after his death, though within two or three days after the date upon which the premium was payable.

Judgment reversed, and new trial ordered, with costs.


author: By the Court, McCunn, J. Robertson, Ch. J.

text:
    Augustus Nottebohm, plaintiff and respondent, vs. Frederick M. Maas et al. defendants and appellants.
    Where a pledgee of goods employs the owner to sell them, and the latter sells them to a purchaser with notice of the pledgee’s lien thereon, for advances, rendering bills stating the price to be payable to the pledgee, and the purchaser agrees to pay the price to the pledgee, the purchaser cannot set off a claim against the owner, in an action by the pledgee for the price of the goods.
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 9, 1865;
    decided May 27, 1865.
    This was an appeal from a judgment rendered on a report of a referee. The complaint was for goods sold and delivered; the answer was a general denial of the allegations of the complaint. The referee found that in September, 1863, the plaintiff sold and delivered to the defendants, through one Victor Fleury, the goods in question, and the defendants promised to pay a certain sum ($8391.63) therefor on demand. That in the same month the defendants paid the plaintiff a certain sum, ($5391.63,) leaving a residue ($3000) due on the price of such goods, for which, with interest, he gave judgment.
    Fleury being examined as a witness, testified that the plaintiff was to have the bill of lading of the goods imported, and pay any thing outside ; and he was to pay the plaintiff the cash on receiving the bill of lading. When he did not pay the plaintiff and take the bill of lading, the latter made the entries at the custom house and paid .the duties. He sold the goods to one of the defendants, (Maas,) who was to pay the amount to the plaintiff, who had made advances on such goods. The plaintiff sent the goods by his own cartman to the defendants, whose porter received them and gave receipts according to his custom therefor, in which he stated he received them from the plaintiff. The same witness further testified, that he required the defendants to pay the amount to the ■ plaintiff, on account of his having made advances on the goods ; that he himself had power to sell the goods; they belonged to him, after he had paid the plaintiff; the latter had nothing to do with the profit and loss on the goods. On the 1st of September he delivered a written order, signed by him, to the defendants to pay, absolutely, the price of the goods sold, to the plaintiff, to which was annexed a bill of parcels specifying the amount due ; they delivered to him in-return, a written promise to do so. The bills rendered were for the goods as bought by Eleury, but the price mentioned therein was stated to be payable to the plaintiff.
    The plaintiff testified that he had imported a good deal of the same kind of goods for Eleury, for which the latter at first paid him, but latterly could not do so, so that he kept possession of the goods. He then gave Eleury liberty to sell them, with the understanding that the price should be paid to him. On a previous occasion he sold some of the same goods to the defendant Maas, and received a similar order for the price. He was informed on that occasion, when he inquired, that it was all right. He further testified that the difference between his advances on those goods and interest, and what he claimed from the defendants, would be very small, not over one or two hundred dollars; there might be a loss. Eleury then owed for other advances by him which were not paid. There might be a loss as well as a profit on that transaction, because he had not closed it.»
    One of the defendants (Maas) testified that he did not know the plaintiff, in making the purchase, until the bargain was concluded; that he advanced Eleury a certain sum ($1500) on account of such goods, after he had given the latter the written promise before mentioned, to pay the price to the plaintiff; the latter then owing them another sum, ($1430.02.) He subsequently promised, to pay them the whole, but again borrowed a third sum, ($500,) which he promised to pay before they paid the plaintiff. Maas, on behalf of both defendants, on the 12th of September, sent the plaintiff a check, in a letter, for a certain sum, ($5391.63,) excusing themselves for not having sent the check before, in consequence of having paid Fleury part. To this the plaintiff replied, claiming the balance, ($3000,) to be paid as agreed on, and asking a check therefor. On a personal application by the plaintiff, on the 12th of September, the defendant Maas told him he had no transaction with him ; that as Fleury asked him to pay an amount to the plaintiff, he thought he had the right to countermand it.
    The referee reported in favor of the plaintiff for $3227.50, together with costs; and the defendants appealed from the judgment entered on the report.

      M. V. B. Wilcoxson, for the appellants.

      G. Dean, for the respondent.
   By the Court, McCunn, J.

The defendants, in their answer and by their proofs, have endeavored to show that they did not purchase the goods from the plaintiff, but from one ’ Victor Fleury, who owed the defendant a large amount of ■ money which they seek to offset. The plaintiff, on the contrary, alleges that Fleury was only his agent, and that consequently, the set-off claimed by the defendants cannot be allowed.

There is but a single question in the case, and that is, to whom was the credit in the transaction given—to Victor Fleury or to the defendants ? I am satisfied, from a careful examination of the facts, that the credit was given to the defendants. Fleury, the agent, testifies that the leather belonged to the plaintiff, and that he (Fleury) simply sold the skins to the defendants as the plaintiff’s goods, and in this he is fully corroborated by the plaintiff, Nottebohm, who testifies that he sold the goods to the defendants, and not to Fleury ; and he is further corroborated in this respect by the letter of the defendants, written before the goods were delivered, agreeing to pay for the same to the plaintiff, and not to Fleury.

Indeed it is seen from a careful examination of the defendant Maas’ testimony, that he knew the goods were the plaintiff’s, and admits he owed the money to Nottebohm, and not to Fleury.

Some stress is laid by the defendants upon the fact that the bill for the goods was made out in the name of Fleury. The making out of the bill was not done by the plaintiff; it was done by Fleury, at the defendants’ request, and was done, no doubt, to fix the credit on Fleury. The making out of the bills, however, in the name of Fleury, is of no consequence, so long as the credit was given to the defendants ; moreover, the bills, themselves show that the proceeds of the sale were to be paid to the plaintiff.

It is quite clear, therefore, from the evidence, that Fleury was acting as agent of the plaintiff at the time of the sale, and that he disclosed his principal, and that the defendants knew they were dealing with Fleury as agent of Nottebohm, and were consequently bound to respond to Nottebohm, unless there was some special agreement between the plaintiff and defendant to the contrary, and of this there is no evidence.

The referee, in passing upon the facts of the case, took all these questions into consideration. His findings are in favor of the preponderance of proof; the judgment already entered cannot, consequently, be disturbed.

Robertson, Ch. J.

The evidence in this case is sufficient to sustain either a finding that the plaintiff sold the goods in question to the defendants, or one that he transferred to them his interest therein, or lien thereon, to the extent of the whole purchase money. Fleury sold them as his agent, to reimburse him to the extent of his advances, which he testified probably exceeded such purchase money, in which statement he was not contradicted by any other testimony. It is immaterial, so far as the pleadings are concerned, whether such sale operated merely as a transfer by the plaintiff, of his lien for advances to the defendants, and a simultaneous transfer of the valueless equity of redemption, or nominal ownership of Fleury, at the same time, or as a sale of goods owned by the plaintiff; since no objection was taken on the trial, on the motion to dismiss the complaint, of a variance between the complaint and proof, but only of an entire absence of proof of any cause of action. The goods were in the possession of the plaintiff, and could not have been obtained except by his delivery of them. The pledgee of .goods is not to be deprived of his rights because he employs the owner to sell them. The defendants, before paying any of the price, should have ascertained in whose possession they were, and what was the nature of the holder’s interest. Fleury acted as a mere broker, and had no right to receive the price. The written acceptance of the order to pay the price, which was very nearly, if not quite, the acceptance of a bill of exchange on demand for the amount, inasmuch as such amount was fixed, the payment made absolute, and the goods were delivered on the faith of such acceptance. (2 R. S. 768, §§ 7, 8,) with the possession of the goods by the plaintiff, and the rendering of bills as payable to him went far to notify the defendants of the plaintiff’s interest, and render their promise to Fleury to pay the amount irrevocable. At all events, no payments to the latter could take away from the plaintiff his right to recover that for which he had sold his lien on the goods.

Judgment affirmed, with costs.