author: By the Court. Campbell, J.

text:
    Stanley v. Webb.
    As a general rule, a full, fair, and. correct account of a trial in a court of justice is a privileged publication, but the privilege is confined strictly to a report of the actual proceedings in court, and must contain nothing in addition to what forms strictly and properly the legal proceedings.
    The publication of ex parte preliminary proceedings before a police magistrate is. not privileged.
    The publisher must find his justification, not in privilege, but in the truth of the publication.
    (Before Duer, Mason, and Campbell, J. J.)
    April 13;
    May 25, 1850.
    This jras an actiqn for a libel published in the New York Courier and Enquirer, of which the defendant was the editor and proprietor.
    ' The publication, as set forth in the declaration, was as follows:

      “ City Intelligence. — Extorting .money to hush up a complaint. — Some time ago, a negro, named James W. Phelps, was arrested on a complaint preferred by one George W. Stanley, that he had posted up handbills purporting that the steamboat Manhattan would leave for Albany, fare fifty cents — whereby a large number of persons took, passage on her, not discovering, until it was too late to remedy the mischief, that the Manhattan was only going to Ooxsackie. The negro was held to bail for the offence, and now comes forward and makes, a complaint against George W. Stanley, who caused his arrest, and officer Lownds, as follows: he makes affidavit, that after arresting him, Stanley offered to let him go, and not prosecute,- if he would give his watch or ten or fifteen dollars, which he refused to do; Stanley subsequently renewed the offer after he had arrived at the police pffice, and he again refused. After he was oat on bail, he swears that officer Lownds came to him and offered, on consideration of receiving $50, to get him discharged, and he not having so much money, gave him all the cash he had, amounting to $22 05, and his note at sixty days for $25 more, which was accepted by Lownds, and afterwards shared with Stanley, and the note' is said to have been since seen in Lownds’ possession. Subsequently to this, Stanley again called upon Phelps, and wanted him to pay more money to him, which he refused to do; and finding that he had been cheated out of his money and would be held to bail to answer the complaint preferred, he makes this charge. Officer Lownds, we understand, produces a permission from the mayor, allowing him to receive $25 from-Phelps for obtaining bail for him, but it is said to be dated subsequent to this transaction, and is intended, doubtless, to cover it up.” The defendant pleaded, 1st. Not guilty. 2d. That before the printing and publishing the words, and after the arrest of Phelps, he appeared in person before W. Wain Drinker, Esq., one of the police magistrates of the city of New York, and preferred a complaint, which was in writing as therein set forth — “ and that the said proceedings before said magistrate-were judicial in-their character, and were openly and publicly conducted before said justice, and that the said alleged publication as aforesaid, was a true, fair, and correct account of the said public proceedings before - said' magistrate.”
    Replication, as to so much of the plea of the defendant as avers that Phelps appeared in open court, &c.; “that' the said complaint, so preferred, was a primary -and original-complaint, and made by James W. Phelps, ex parte, in the absence of the plaintiff, and without cognizance thereof to him; and that the .matters therein stated of and concerning said plaintiff, and of and concerning the several persons, matters .-and things as in said declaration mentioned, were ■ and are false,- libellous, and untrue, .as in said declaration set forth, and .that the said libel- in the said declaration mentioned,, was• published..of and concerning the said ex parte ■ complaint, and of and concerning the said several-persons, matters and .things, in the said declaration mentioned.” The defendant demurred to the replication, assigning causes of" demurrer.

      J. J. Ring, in support of the demurrer,-
    made and-argued the following points:
    L If the publication complained of was -a true, fair and - correct account of'a public proceeding before.a magistrate1 as a judicial officer, the publication was privileged, and the plea is a complete defence to this action, because it expressly avers the fact. (Starkie on Slander,- 284;. 1 Bos. and Pul. 525; 7 East 502; 7 Johns. 264.)
    II. The publication is no less privileged because it contains a statement of what was charged by Phelps against the -plaintiff, as well - as what was charged by -the1 plaintiff- against- Phelps. The charges preferred -by Phelps against the plaintiff were made at the time Phelps was under arrest upon the complaint- of the plaintiff, and while the magistrate-was engaged in his judicial capacity in the. investigation. 4 Brand A: 612, shows - that - a publication of a part of the case, and not the whole of it-'as it appeared before the magistrate, would perhaps make the publi-' .cation libellous.
    III. The replication's bad in substance:
    1. The absence of the plaintiff at' the time Phelps wasmndfer arrest upon the plaintiff’s complaint, and the magistrate was proceeding in a judicial investigation did riot deprive Phelps of the right of making a complaint against the- plaintiff,' -ás' to Phelps’ conduct-in reference to the véry offence which was then undergoing an investigation — what Phelps said-at: the time/arid upon that occasion, could not subject-everi Bhélps-to an action for slander. At all events Phelps was in open court, where bjr law the proceedings are public, and the publication complained of is a re-publication of that which by law Phelps in the first instance had a right to make public.
    2. Whether or not the statement made by Phelps upon that occasion were or not false, libellous, &c., cannot affect the defendant’s plea that defendant’s publication was a true account of the proceedings before the magistrate. •

      W Mubch, for the plaintiff,
    argued the following points;
    I. The replication is good in form, single, without departure, and suggesting new matter not stated in the plea.
    II. Publications of ex parte proceedings affecting third persons have no immunity beyond their being in fact true; if so, the circulation of malice is without remedy against publishers, who, in all cases, cause the Vhole injury. 1 Stark. (Wend, ed.) 284.
    III. The grossest part of the libel, and not included as part of the “proceedings,” is wholly unanswered by the plea.
   By the Court.

Campbell, J.

This suit was instituted for the recovery of damages for the publication in the'Courier and Enquirer newspaper, of which the defendant is editor and proprietor, of an alleged libel against the plaintiff.

The defendant pleads that the publication was a true, fair and correct account of public judicial proceedings before a magis-' trate, and the plea contains the affidavit upon which the complaint against the plaintiff was founded, and it further avers that other proceedings were pending before the magistrate, growing out of a complaint made by the plaintiff The replication charges that the complaint was primary and original, and made ex parte, in the absence of the plaintiff, and is false and libellous; and the defendant demurs.

The question presented for our consideration is, whether this publication is privileged.

The question of privilege is one of great delicacy and importance, affecting as it does the independence of legislation, the impartial administration of justice, the proper discharge of offcial duty, the liberty of the press, and the protection of private character. And whenever the law concedes the claim of privilege, it at the same time exercises a watchful care that the enjoyment' of such privilege shall be limited to the necessity of the particular case, and that it shall not be used to the injury of the private character of the citizen.

Thus, in the case of The King v. Lord Abingdon, 1 Espinasse R. 226, it was held that a member of parliament may not, with impunity, publish and circulate a speech containing slanderous charges against an indi vidual,'though such speech was delivered by him in the House of which he was a member. He cannot be called to account for what he does in the discharge of his duties, but if he publishes, he loses his privilege. So, in Lake v. King, 1 Saund. 124, a petition presented to a committee of parliament was ordered to be printed for the use of the members ; bul it was published elsewhere, and such publication was held unjustifiable, because it went beyond that which the privilege of parliament required.

And at a recent day, in the great case of Stockdale v. Hansard, 9 Adolph. & Ellis, 1, the question was presented, whether a report published by order of the House of Commons for the use of the members of that body, and also for sale, and which contained reflections upon the character of the plaintiff, was privileged. The case was argued at great length by the attorney-general on the part of the defendants, acting under instructions of the House of Commons, which body had passed resolutions asserting their privilege in the matter. In his opinion, Lord Detonan, speaking of these resolutions, says, “We are informed that a large majority of that house adopted the assertion. It is not without, the utmost-respect and deference, that I proceed to examine what has been 'promulgated by such high authority. Most willingly would I decline to enter upon an-inquiry which may lead to my differing from that great and powerful assembly. But when one of.my fellow-subjects'presents'himself before-me in this court, demanding justice for an -injury,Ut is not at my option toi grant-or withhold -redress. I aril bound to afford it if the law declares him entitled to it.” The decision of the court was unanimous, that the privilege did not exist, except where the reports or proceedings are published simply for the use of the members. That publications of reports or proceedings for general sale, or distribution, might be inquired into if they-contain unjust reflections -upon private character. The protection of the character of the citizen triumphed ov'er a privilege claimed to have existed for a period ■ so long that it- had become hoary with age. (See Vol. I. Lives of the Lord Chancellors, by Lord Campbell, page 293, Am. ed.,-Life of Sir John Eortescue.)

It.is admitted as a general rule, that a full, fair and correct account of a trial in court is a privileged publication-, and this is the well established law of England and of this country. But “ if a party -is to be allowed,” says Chief-Justice Abbott, (Lewis v. Walters, 4 B. & A. 611,) “ to publish what passes in a court of justice, he must publish the whole case, and not merely state the-conclusion which he himself draws-from ihe-evidence;” and in Flint v. Pike, 4 B & C. 467, a plea that the supposéd libel was in substance a true account and report of- the trial was held bad. In Saunders v. Wills, 6 Bingham 213, a statement of the circumstances of'a trial, given as from- the counsel in the case, rvas held not such a report as is privileged — -and in Delegal v. Heghley, 3 Bingham, N. C. 950, Chief Justice Tindal says': It is an established principle upon which the privilege of publishing a report'of any judicial proceeding is admitted to rest, that such report -must be strictly confined"to -the-actual proceedings in court,-and must contain no defamatory- observations or comments from any quarter whatever, in addition to -what-forms strictly and-properly the legal proceedings.--' So-'it was said in the King v. Carlile, by Chief Justice Abbott; 3 B &-A. 167, “ There can be no doubt in the mind of the court, or of any person acquainted with the law of the country, that if, in the course of a trial, it becomes necessary fop the purposes of justice, that matters of a defamatory nature should be publicly read, it does not therefore follow that it is competent to any person under the pretence of publishing that trial, to re-utter the defamatory matterand so was the law held to be in that case by all the judges. See also the observations of Lord Ellen-borough and Grose, J., on the argument in Styles v. Nohes, 7 East, 503.

In Thomas v. Croswell, 7 John. 272, Spencer, J., says: “ there is not a dictum to be met with in the books that a man under pretence of publishing the proceedings of a court of justice, may discol'or and garble.the proceedings by his own comments and constructions, so as to effect the purpose of aspersing the character of those concerned.” In the case of Clement v. Lewis, 3 Brod. & Bing. 297, the heading of the articles was, “ shameful conduct of an attorney.” The defendant justified, on the ground that the alleged libel contained a faithful and true account of the several proceedings therein stated, had in the insolvent debtor’s court, and on some of the pleas, the jury found in favor of the defendant. But the court of King’s Bench held that the words at the head of the article formed no part of the proceedings in the debtor’s court, and on this point, the judgment, in-the exchequer chamber on error, was affirmed on the argument of the cause.

•In the case now before us, the heading of the article was “extorting money to hush up a complaint.” If the proceedings had taken place in court, on the trial of the case, and the witness had given the testimony substantially as stated in his affidavit, still that part of the publication would not have been privileged. But this was no trial. The publication in, question purports to give the substance of two complaints, made at different times, and on entirely different grounds; the latter complaint, made by the defendant in the first complaint against the plaintiff in this suit and a police officer, charging that they had offered, for a bribe, to have the first complaint dismissed; the plaintiff in this suit having been the prosecutor in the first complaint. The one complaint was no answer to the other. Each would be sustained, if sustained at all, on different evidence; and for aught that appears, if the charges were true, both parties must be convicted. It is in no sense a trial — a fair, correct and impartial account of which, should carry forth to the world, without comment, the testimony which rebutted, as well as that which sustained the complaint, the direction of the court and the verdict of the jury.

"We now come to the most material and important question, whether the publication of such preliminary ex parte proceedings before a magistrate is privileged. Lord Hardwicke remarked, 2d Atk. 267, “ Nor is there any thing of more pernicious consequence than to prejudice the minds of the public against persons concerned' as parties in causes, before the cause, is finally heard;” and Lord Ellenborough, in an action for publishing an account of preliminary proceedings before a magistrate in King v. Fisher, 2 Campb. 563, says: “Jurors and judges are still but men y they cannot always control feeling excited by such inflammatory language. If they are exposed to be thus warped and misled, injustice must sometimes be done. Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. . But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law.still presumes to be innocent, and to poison -the sources of justice. It is of infinite importance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law and called upon to defend his life and character. "We would then wish to meet a jury of our countrymen with unbiassed minds. But for this there can be no security, if such publications are permitted.”

In the great case of Duncan v. Thwaites, 3 B. & Cresswell, 556, this right was fully considered. The defendants, the proprietors of the London Morning Herald, were sued for a similar publication. They pleaded, amongst other things, that the supposed libels-were nothing more than fair, true, and, correct reports in the newspaper called the Morning Herald, of proceedings which took place publicly and openly, before the magistrate at the public police office at Bow-street; and they insisted that they were privileged to make such publication. The unanimous decision of the court was pronounced by Chief Justice Abbott, who, after remarking that the case had been argued with much learning on both sides, and that all the decisions and opinions of judges that have any bearing on the question had been quoted, adds: “ It may be sufficient to say of them, that there is not any one plainly supporting the affirmative of this proposition, and that there are many expressly declaring the negative. This court has, on more than one occasion, within a few years, been called uponvto express its opinion judicially, on the publication of preliminary and ex parte proceedings; and has on every occasion delivered its judgment against the legality of such proceedings, as was done by Mr. Justice Heath, in the year 1804, in the ease of the King v. Lee, 5 Espinasse, 123. Other judges have delivered opinions to the same effect; and it is well known that many other persons have lamented- the inconvenience and the mischievous tendency of such publications. They were, within the memory of many persons now living, rare and unfrequent; they have gradually increased in number, and now are unhappily become very frequent and numerous. But they are not on that account the less unlawful, nor is it less thé duty of those to whom the administration of justice is intrusted, to express their judgment against them.” Mr. Starkie, referring to some of these cases, says; “The publication also, of ex parte proceedings in criminal cases, is not only not privileged by the law, but is regarded as a great misdemeánor.” ' (1 Starkie on Slander, 265; Holt’s Law of Libel, 172 and 173, and notes, Am. ed.; Cook’s Law of Defamation, 45.)

I have thus run over a'few of-the prominent cases relative to privileged publications, and in doing so have preferred to quote the language of the decisions, as uttered by several of the distinguished men, who during the last half century have shed light and lustre on English jurisprudence. It is believed that no one, who will carefully examine the subject, can fail to perceive-that under the enlightened administration of the law, the freedom of the press has not been curtailed, but gradually enlarged; at the same time that the circle of protection to private character has been materially increased.. Under the recent statute, 6 & 7 Victoria, c. 96, § 6, the truth may be given in evidence in criminal prosecutions for libel, if the same was published with good motives and for justifiable ends; so that there, as here, the press is free to publish, being responsible, as man is to his fellow-man in the ordinary affairs of'life, for the injuries which he wantonly or maliciously inflicts.

We are not aware that the question presented for our consideration has evér before arisen in this state, but the authorities and the arguments which sustain them, and which we have in part referred too, are too strong to be resisted, and we must give them our entire assent. It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends — that every man is presumed innocent of crimes charged upon "him until he is proved guilty. But the circulation of charges founded on ex parte testimony, of statements made — often under excitement: — by .persons smarting under real or fancied wrongs,.may prejudice the public mind, and cause the judgment of conviction to be passed long before the day of trial has arrived. When that day of trial comes, the rule has been reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be entirely groundless. If every preliminary ex parte complaint which may be made before' a police magistrate, may, with entire impunity, be published and scattered broadcast over the land, then the character of the innocent who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down, without any malice on ■ the part of the publisher. • The refutation of slander in such cases generally follows its propagation at distant intervals, and brings often but an imperfect balm to wounds which have become festered and perhaps incurable.

It is not to be denied that occasionally the publication of such proceedings is productive of .good, and promotes the ends of justice. But in such cases the publisher must find his justification not in privilege, but the truth of the charges.' The necessity of this salutary rule is further evident from the fact that of these complaints a large portion are never prosecuted even to trial, much less to conviction.

It would be difficult to point out a complete remedy for the evil, which exists with us .as in England. ■ The law, which we consider well settled, and which we repeat and lay down in this case, that the publication of such preliminary ex parte proceedings is unauthorized and not privileged, if observed and enforced, would do something. A sound public opinioh would do more — -an opinion which should encourage that homely doctrine of diligent attention to one’s own affairs, and of thinking no evil of others except as a knowledge of such evil is forced upon us by business or by duty — an opinion which frowns upon those who pander to and nourish with daily food that morbid curiosity which finds its aliment in the frailties and vices of our race.

Demurrer overruled with costs.

       The decision in this case was given in May, 1839, and in April, 1840, parliament passed au act which virtually restored the privilege. (See Cook’s Law of Defamation, 185.) * ‘ !


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Weed and others v. Clark.
    An instrument guarantying the payment of a- promissory note made by others, not indorsed upon the note, but written upon a separate paper, is not, in form or substance, a promissory .note; it is a distinct collateral undertaking.
    Upon a purchase of goods of the plaintiffs by U. & Co., the defendant guarantied the payment of the price by an instrument in these words: “ Bill, Oct. 2d, 1844. $1306.29. I hereby agree to guaranty the payment of U. & Co.’s note for the above amount, in favor of Messrs. Weed, Masters & Weed, payable nine months after date thereof, viz., from 2d Oct. 1844.” Held, that the guaranty, by its terms, plainly expressed a past consideration, and therefore, for the 'want of a valid consideration, would not support an action within the statute of frauds.
    Where the terms of a guaranty, leave it doubtful whether the consideration was an executed one or not, parol evidence is inadmissible to explain it, the ambiguity being patent, and the statute of frauds ‘requiring a positive expression of the consideration in the guaranty itself.
    (Before Oakley, Ch. J., and Vanderpoel and Sandkord, J. J.)
    Nov. 23, 1849 ;
    May 25, 1850.
    This was an action brought to recover the amount of an alleged guaranty given by the defendant to the plaintiffs, upon the sale by them of a quantity of merchandise to the firm of Ullman & Go. The pleadings were under the „code, and consisted of a complaint and answer. The complainant alleged, that on the 2d of October, 1844, the plaintiffs agreed to sell to Ullman & Co. merchandise to the amount of $1306 29, to be paid for by their note at nine -months, provided the defendant would guaranty the payment of the same. That, in accordance therewith, 'the- defendant agreed to give such guaranty, and did execute and deliver to the plaintiffs, as a condition of the sale to Ullman & Co., a guaranty in these words:
    “ Bill, Oct. 2d, 1844,.....$1306 29.
    “I hereby agree to guaranty the payment of.Ullman & Oo.’s nóte for the above amount in favor of Messrs. Weed, Masters & Weed payable nine mos. after date thereof, viz., 2 Oct., 1844.
    “ Gerardus Clark.”
    That the goods were thereupon delivered to Ullman & Co., and their note given at nine months for the amount, but that the same was not paid at maturity, and notice of the non-payment was given to the defendant.
    The defendant, in his answer, averred that he received no consideration whatever for the alleged guaranty, and that none was expressed therein. The defendant also denied all knowledge of the note alleged in the complaint, or that he had ever received notice of its non-payment, and that in consequence thereof he was not liable upon the guaranty. The answer further set up, by way of demurrer to the complaint, that there was no averment therein that any notice had been given him of the delivering of the merchandise to Ullman & Co.; or the giving of the note alleged by them; or of any demand or refusal of payment thereof; or that the firm of Ullman & Co. were insolvent.
    At the trial, the plaintiff’s counsel read in evidence the guaranty set forth in the complaint, and also the promissory note of Ullman & Co., mentioned therein, for the sum of $1306.29, dated Oct. 2d, 1844, and payable in nine months. These instruments were on separate papers. It appeared by the testimony of the salesmen of the plaintiffs, that the merchandise in question was sold to the firm of Ullman & Co., upon the condition that the defendant would guaranty the payment of the price, and that the plaintiffs refused to sell otherwise. It also appeared that the note was taken for the merchandise sold to Ullman & Co.; that the goods were shipped to them on the 5th October, and that the guaranty of the defendant was obtained before the goods were delivered. The witness testified that it was his impression that the guaranty was brought with the note.
    The plaintiffs here rested, and the counsel for the defendant moved for a non-suit. In accordance with a suggestion of the presiding justice, however, a verdict was taken pro forma, for the plaintiffs, subject to the opinion of the court at' general term on a case to be made.

      A. S. Johnson, for the plaintiff.

      G. Clark, in person.
   By the Court.

Sandford, J.

We are not satisfied that this instrument can be sustained as a promissory note. It is in terms a guaranty of Ullman & Co.’s note for the amount of the bill expressed in its caption. Taken by itself, it is not a note in substance, much less in form. If we place the note of Ullman & Co. beside it, there appears to be an identity in date, and that note corresponds in amount with the one which this instrument undertakes to guaranty; but it is still a distinct ■collateral undertaking. It seems to us to be straining a point in order to overreach the statute of frauds, to hold such a guaranty to be a promissory note. The only authorities cited which appear to favor the plaintiff’s argument on this point,, are Manrow v. Durham, 3 Hill, 584, and Curtis v. Brown, 2 Barb; Sup. C. R. 51. The latter was decided by the present supreme court in the third district, on the authority of the former exclusively. The case of Manrow v. Durham was ruled by two judges against the dissenting opinion of Judge Bronson, and was affirmed in the court of appeals in December last, by the vote of four judges against three, Bronson, J., not having heard the argument. As he was opposed to the decision when in the late supreme court, it is apparent that the court of appeals was equally divided on the point, and its authority still rests upon the ruling of Nelson, Ch. J., and Cowen, J., as reported in 3d Hill.

Assuming that ruling to be the law as yet, it does not establish that this guaranty is a promissory note. -It proceeded distinctly upon the ground that the writing there in question was indorsed upon a promissory note. Here the writing is not indorsed upon Ullman & Co.’s note; it is an independent instrument. With this difference between the two cases, and the authority of Packer v. Willson, 15 Wend. 343, decided by the supreme court no longer ago than 1836, against that of Manrow v. Durham, we feel entirely at liberty to hold, according to the clear conviction of our own judgments; that the writing in question cannot be upheld as a promissory note.

Next, is it valid as a guaranty ? The note of Ullman & Co. is identified in the guaranty; and by the aid of the parol evidence, there is sufficient proof of an actual consideration. But the statute requires the consideration to be expressed in the instrument. Now what consideration do we find expressed in this guaranty? Looking at the instrument alone, we have “Bill, $1306.29, Oct. 2d, 1844;” and it is a fair inference that it is a bill of Ullman & Co. But is it a bill of exchange past due, or a bill of goods ? Unless we resort to parol evidence of the nature of the business pursued by the plaintiffs, or like evidence of the transaction itself, we should be .quite at a loss to say what was intended by the word “ Bill.”

If we assume that it means a bill of merchandise, the distinct and clear impression on reading the instrument is, that it refers to a past transaction; to a bill of goods sold, for which a note has been given. It is conceded that this would not support the guaranty. It is contended on the part of the plaintiffs, that'the instrument is'equally susceptible of a construction that a future sale of merchandise was intended, and that where the words of the guaranty leave it doubtful whether the consideration was an executed one or not, parol evidence is admissible to explain the ambiguity; and in-this case it is thus explained, and it is proved that the plaintiffs parted with their property on the faith of the guaranty. In support of this point, we are referred to Walrath v. Thompson, 4 Hill, 200; founded on Haigh v. Brooks, 10 Adolph. & El. 309 and 323. As to the latter, it appears that the Queen’s Bench decided the case without determining whether the guaranty there in question was good or not; and the Exchequer Chamber affirmed the judgment, as well for the reason assigned in the Queen’s Bench, as because the ambiguity in the guaranty might be explained by parol evidence. In examining Walrath v. Thompson, it seems to us that the instrument upon which the recovery was sought imported, very plainly, a debt already incurred by the principal debtor to the amount expressed, which the guarantor undertook to pay, on the creditor extending the time of payment. By means of the parol evidence, this was turned into an indebtedness proposed to be incurred for goods sold on the faith of the guaranty.

We feel a difficulty in assenting to the ground upon which the court decided the case of Walrath v. Thompson, for two reasons. First, the ambiguity claimed was not a latent ambiguity ; it was patent, appearing on the face of the instrument. A latent ambiguity may be explained, or rather supplied, by parol evidence; but we suppose the rule to be perfectly well settled, and of an older date than the statute of frauds, that parol evidence is inadmissible to explain a patent ambiguity in a written instrument. Second, the statute requires a positive 'expression of the consideration in the guaranty itself. The consideration, as well as the promise, must be in writing. Now we are unable to perceive how a writing expresses a future consideration, when it is conceded that the words used for the purpose are equally expressive of one that is past and executed; or how the instrument can be said to express at all, a consideration which only appears by proof of facts that are not in the instrument. It appears to us to be equally within the mischief against which the statute was aimed, to supply the consideration entirely by parol evidence, and to prove by parol which of two ambiguous considerations, to be gathered from "the terms of the instrument, wras the one intended, one being invalid, and the other sufficient to uphold the guaranty. We will, however, place our decision on the ground first stated, that the terms of this guaranty plainly express a past consideration, and there is nothing ambiguous which requires explanation by the parol evidence offered at the trial. In this view, the guaranty has no consideration for its support, and the plaintiffs cannot recover.

Judgment at the special term reversed, and complaint dismissed.


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

text:
    Johnson v. Valentine and others.
    The law will not construe a limitation in a will into an executory devise, when it can take effect as a remainder; nor a remainder to he contingent, when it can be taken to be vested.
    The law also leans against construing provisions in a will as conditions, unless the intention of the testator requires it.
    Adverbs of time, as when, then, after, from, <£c., <fc., in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of the vesting in interest.
    Where there is a devise to a class of persons, to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others, as they are born afterwards.
    A testator made his will in 1816, by the fourth clause of which he devised certain real estate to the two sons of his deceased daughter, viz., T. T. J. and J. J. By a codicil made in 1819, he provided as follows: “ I do hereby give, devise, and bequeath all the estate devised by the fourth clause of my wEl to the two sons of my daughter Mary, deceased, to wit: T. T. J. and J. J., to their stepfather, T. P., in trust; first, to pay the just claims which he now has against them or either of them respectively; second, in trust, to apply the rents and income to the support of the children and family of the said T. T. J. and J. J. respectively, until the youngest child of each shall respectively attain the age of 21 years, at which time the estate so left by my will to the father shall vest in the children of such father, or their heirs, in fee and for ever; such children or their issue to take as their father would have taken under my aforesaid will, if this codicil had not been made, my intention being that the children of my said grandsons, T. T. J. and J. J., shall take the share their father would have taken under the will, subject only to the debts of such father to the said T. P.

      Held, that the estate thus devised vested in interest in the children upon the death of the testator, and that the vesting in possession was alone postponed until the youngest child attained the age of 21 years.

      Held also, that the estate vested in interest in the children as a class, subject to open to let in others coming in esse in the intermediate time.

      Held further, that the interest in the estate in question having vested in the infants, it was competent for the court of chancery to order a sale of their interest, and upon such a sale their interest would be extinguished.
    (Before Oakley, Oh. J., and Paine, J.)
    March 8 ;
    June 8, 1850.
    This was an action to obtain, a partition and sale of certain premises, situate in Eront-street, in tbe city of New York, in which the plaintiff claimed an interest under the will of Teunis Tiebout, deceased.
    The complaint averred, that in April, 1823, Teunis Tiebout died, seized of certain real estate situated in the city of New York, and that by his last will and testament, which bore date June 12, 1816, he devised unto the five children of his daughter Mary, viz., Teunis Tiebout Johnson, John Johnson, Theodore Polhemus, Garritie Polhemus, and Cornelia Van Wyck, “ all those two certain lots of ground in the city of New York, near the old Ferry stairs, granted to me by the corporation of the said city, with the buildings thereon erected, one of the said lots is situated in Front-street, and now in the occupation of Caleb Coggershall, and the other of said lots is situated on South-street, and now in the occupation of Samuel Jackson, and also all my right, title, and interest of, in and to the dock fronting the last-mentioned lot, to have and to hold the same, with- the hereditaments and appurtenances to the same belonging, unto them, their heirs and assigns for ever, share and share alike, and in case any of my said grandchildren, the children of my said daughter Mary, deceased, shall die before me, leaving lawful issue, then I give, devise and bequeath to such issue, share and share alike, the portion of my estate which would have belonged to the parent of such issue if such parent had survived me, and if there be no lawful issue, such portion shall vest in the surviving brothers and sisters, share and share alike.”
    That by a codicil annexed to the will, bearing date the 19th of July, 1819, the testator devised as follows:
    “I do hereby give, devise and bequeath all the estate devised by the fourth clause of my will, to the two sons of my daughter Mary, deceased, to wit: Teunis Tiebout Johnson, and John Johnson, to their stepfather, Theodoras Polhemus, for the following uses and trusts, that is to say: First To pay the just claims which he now has against them or either of them, such payments to be made out of the share which would have fallen to them respectively under my will if this codicil had not been made. Second.. In trust, to apply the rents and income to the support of the children and family of the said Teunis Tiebout Johnson and John Johnson, respectively, until the youngest child of each shall respectively attain twenty-one years of age, at which time the estate so left by my will to the father shall vest in the children of such father or their heirs in fee and for ever; such children or their issue to take as their father would have taken under my aforesaid will if this codicil had not been made, my intention being that the children of iny said grandsons, Teunis Tiebout Johnson and John Johnson, shall take the share their father would have taken under the will, subject only to the debt of such father to the said Theodoras Polhemus.”
    In a further codicil, bearing date the 2d day of June, 1820, the testator directed as follows: “ Whereas, Theodorus Polhemus is now dead, in consequence of which, the trusts contained in the former codicil might not be executed; I, therefore, do constitute and appoint the son, Theodoras Polhemus, his sister, Grarritie Polhemus, .and their brother-in-law, Jacob Yan Wyck, trustees, and the survivor and survivors of them, enjoining .it upon them to execute the trusts contained in my former codicil, giving and granting to them all the estate, right, title, interest, power and authority necessary for the purpose, and before given to Theodorus Polhemus, the father.”
    The will was proved before Jeremiah Lott, Esq., surrogate of the county of Kings, on the 18th day of April, 1823, and duly recorded, &c., and letters testamentary thereon granted to Grarritie Cowenhoven, executrix named in the said will.
    That John Johnson died, leaving ■ seven children him surviving, that Teunis Tiebout Johnson died leaving nine children him surviving, and that the plaintiff was one of the children of the latter. That the youngest child of John and Teunis respectively, attained twenty-one years of age on the 17th day of March, 1838, and not before: at which time the plaintiff claimed that the shares originally given to John and Teunis Tieboui Johnson vested in their descendants by the terms of the will.
    The complaint further ■ alleged that Whitehead, one of the children of T. T. Johnson, died in 1847, leaving no will and without issue, and claimed, that by reason thereof, the plaintiff became entitled to a proportion of his brother’s share; that the defendant, Yalentine, had been in the possession of the premises on Front-street since 1825, and had been in the receipt of the rents and profits thereof; that in 1825, he deeded to the defendant Munn, the one-half of the rear part of the lot in question, and that the same was still occupied by Munn. The plaintiff claimed to be entitled to one forty-fifth part of the premises in question, besides the one ninth part of the share of which Whitehead C. Johnson died seized, and to a like share of the. rents and profits of the premises during the time of their occupancy by the defendants, Yalentine and Munn.
    The other surviving descendants of T. T. Johnson were made parties defendant.
    The defendants, Yalentine and wife, put in an answer to the. complaint, in which, after admitting the allegations of the complaint as to the will of Teunis Tiebout, its provisions, &c., they set up that on or about the' 30th of August, 1824, the trustees, named in the second codicil of the will of Teunis Tiebout, presented a petition to the late court of chancery, setting forth the will, and the decease of John and Tiebout Johnson, the number and age of their respective children, and that the adult-owners of the premises devised by the will, whereof the premises in question were a part, were desirous of selling their respective interests therein, and that it would be for the interest of the infants that the same should be so sold. The petition further set forth the fact, that there was existing against the. estate of Teunis T. Johnson, a judgment in favor of Theodoras Polhemus, amounting to $952.94, obtained in August, 1819, which was a charge upon the share of the estate devised to the trustees by Teunis Tiebout, for the children- of the judgment debtor. That such proceedings were had upon- this petition, that subsequently, by a decree of the court, Theodore Polhemus was appointed guardian of the infant children of Teunis Tie-bout Johnson, of whom the plaintiff was one, with power to sell and convey the right and interest of those children in the premises in question, and to invest the proceeds for their benefit, after the payment of the lien of Theodoras Polhemus. That the premises were accordingly sold on the 18th of October, 1824, at public auction, to the defendant Yalentine, for $5050. A report of the sale was afterwards made to the chancellor by the special guardian, and the report was confirmed by an order of the court. Under the order of the chancellor, the special guardian executed a conveyance of the interest of the children of John and Teunis Tiebout Johnson, in connection with the adult owners of the premises in question, to the defendant Yalentine, on the 18th of November, 1824, and Yalentine thereupon entered into possession under such conveyance. The defendants claimed by their answer, that by virtue of the proceedings before the chancellor, and the conveyance made by the special guardian, the defendants Yalentine and wife, had an indefeasible title to the premises.

      The plaintiff demurred to all that part of the answer which had reference to the proceedings' in the court of chancery, on these grounds: 1st. That they were not sufficient to bar the plaintiff’s action. 2d. That by the will of 1816, the quantity of interest given to the children of Mary was a fee simple; for it was expressly limited to them, their heirs and assigns for ever. The limitations over to the issue of the children of Mary, and in default of such issue, to their brothers and sisters, carry the same estate, and are intended to prevent a lapse, if either devisee should die before the testator. By the codicil of 1819, the trust conferred on Theodoras Polhemus the elder, together with the limitation over to the children of the two Johnsons on the expiration of the trust, amount to an entire revocation of the devise to them. Teunis T. and John cease to be objects of the testator’s bounty,' except so far as they are benefited by the payment of the debt specified in the codicil. They are in no event to have any interest in the land, but the whole is given in fee simple to their children. 3d. That the title of the children had not vested when the chancery proceedings were had. The codicil itself expressly declares and settles this. The two-fifths were given to Theodorus Polhemus, in trust, to apply the rents and profits, &c., until the youngest child of each should respectively attain twenty-one years of age, “ at which time the estate so left by the will to the father shall vest in the children of such father, or their heirs, in fee simple and for ever.” 4th. That the children took under the codicil as a class; and the rale in such cases is, that all persons answering the description at the time the future estate is to take effect in possession will be entitled. It was uncertain who would take, until the youngest child became twenty-one. It was uncertain who' among them would then be alive, and who among them dying in the mean time would have issue take in their place. The estate was then contingent, and, therefore, any conveyance of it void. 5th. That the sale of the interest of the then infant plaintiff was wholly inoperative, because he had none. The chancellor had no power to order a sale of what the infant himself could not sell if-he were of full age; nor can any estoppel be created by the covenant of the guardian which shall operate as a bar to the infants of future acquisition. The right of all the children at the time of sale, was a mere possibility that an estate might vest on the attainment of twenty-one by the youngest child of the respective families in such of them as should then be living. 6th. The plaintiff has never received the consideration paid to the guardian, nor since of age done any act to evince his approbation of or confirmation of such sale.
    The cause was heard upon the demurrer, before his Honor Mr. Justice Yanderpoel, at special term in December, 1849, when an order was granted overruling the demurrer, and dismissing the complaint.
    The following opinion was given by Justice Yanderpoel.
    Yanderpoel, J. — If, as the defendant contends, the plaintiff in this suit, as one of the nine children of Teunis Tiebout Johnson, took under the first codicil a legal estate in fee simple, in his share of the premises in question, (being one-ninth of a fifth,) then his claim is most successfully resisted.
    The testator, by his will, devises to his five grandchildren, Teunis Tiebout Johnson and others, the children of his daughter Mary, the premises in question. By a codicil, bearing date the 19th day of July, 1819, he provides as follows: (The judge repeated the codicil.)
    If the plaintiff took a vested remainder under this codicil, then the chancellor had most indubitably a right to order a sale of his interest in the premises, under the act of the 9th of April, 1814, (Laws of 1814, p. 128, Ch. 108,) and the act in addition to the same, (Laws of 1815, p. 103.) This is suggested, without here intending to question the validity.of the defendant’s proposition, that in any view of the plaintiffs interest in the premises, it was such an interest as the chancellor could order to be sold. The repugnance of courts to consider a remainder as contingent in -any case where it may be construed to be vested, consistently with the intention of the testator, is now a well-established principle in the law, as is well remarked by the president of the court of errors, in Moore v. Lyons, 25th Wend. 119. Courts will never construe a limitation into an executory devise when it can take effect as a remainder; nor a remainder to be contingent when it can be taken to be vested. From the time of Boraston’s case, 3d Coke’s R. 19, it has been held that the adverbs of time, as when, then, after and from, in a devise of a remainder are construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting in interest. In Boraston’s - case, the testator devised the upper part of his close, called Redding, to A. and his wife, for eight years, and then to testator’s executors, until such time as Hugh Boraston (his grandson) shall accomplish his full age of twenty-one years, and the mean profits to be employed by my executors towards the performance of my last will and testament, and when the said Hugh shall come to his age of twenty-one years, then I will, he shall'enjoy the said upper part to him and to his heirs for ever, and it was held that the remainder vested in Hugh, though he never attained twenty-one.
    In Goodtitle v. Whitby, 1 Burr. 228, Lord Mansfield approves of the principle laid down in Boraston’s case, and lays down the rule that when an absolute property is given, and a particular interest given in the mean time, as until the devisee shall come of age, &c., and when he shall come of age, &c., then to him, &c., the rule is, that that shall not operate as a condition precedent, but as a description of the time when the remainder man is to take in possession. There the question was, whether under the will the estate vested immediately in the testator’s two nephews, upon the death of the testator, or remained in contingency until they respectively became of age, and it was held that the estate vested in interest immediately, in the nephews, on the death of the testator. I concur fully in the sentiment of Parke Baron, in Wrightson v. Macauley, 14 M. & W. 230, that it is a rule of law, that we should .construe estates to vest at the earliest possible period. This rule should always prevail in the absence of a clear intention of the testator to control it. If, as the books abundantly show, it has been the policy of courts in England, ever since the days of Lord Coke, to sustain this rule, we surely find more abundant motives for adhering to it here. It is in accordance with the spirit of our institutions that estates should not be kept in suspense. With us the utmost alienability and partibility of estates are looked upon with even more favor than in England; our courts should with alacrity reciprocate the sentiment so long and repeatedly promulgated in Westminster Hall, that in construing devises, the party to take should be determined, if possible, at the death of the testator, and that the estate should then vest in interest.

      Edwards v. Symons, 6 Taunt. 214, was a case directed by the court of chancery, for the opinion of the judges of the court of common pleas. That case was somewhat analogous to the present. It was a devise of a fee simple estate, expectant on the decease of B., to trustees and their executors, to receive and apply the rents to the maintenance and advancement of six of the testator’s children, till the youngest was twenty-one, and then to his said six children and the survivors and survivor of them, their heirs and assigns for ever, as tenants in common. It was held by all the judges that all such devisees as survived the testator, took on his decease a-vested estate in fee in common, insomuch that the share of one of the six children dying before he was twenty-one, was held to descend to his heir at law. On the argument of the present case, the question was propounded to whom the share of the plaintiff would have gone under the will, if he had died before the youngest child of Teunis Tiebout and John Johnson attained the age of 21 years. The answer is a very obvious one. If the estate vested on the death of the testator, as I hold it to have done, the share of him or her so dying before all reached twenty-one, would have descended to his or her heirs at law, and not to the survivors.
    If the plaintiff had a vested interest at the death of the testator, there is an end to his claim. It was disposed of by the order of sale of the chancellor. It was a devise to the children of Teunis Tiebout Johnson and John Johnson. What children ? According to well-settled authority, such children as survived at the death of the testator. In Moore v. Lyons, 25 Wend. 119, all the cases in England and in this country are ably reviewed, and the court of last resort held that in a devise of real estate to one for life and from and after his death to three others, or to the survivors or survivor of them, their or his heirs and assigns for ever, the remaindermen took a vested interest at the death of the testator, and if either of the remaindermen died before attaining twenty-one, his share would go to his heirs and not to the remainderman who might survive at the death of the tenant for life. It is also well established, that when there is a devise to a class of persons, to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others, as they are born afterwards. {Williamson v. Field, 2 Sand. Ch. E. 588, and cases there cited; Doe v. Provost, 4 J. E. 60; Dolley v. Ward, 9 Adol. and Ellis, 607.)
    That in such a devise, the estate vests at once in those who are in being, and opens for the benefit of after-born children, is now a well established doctrine of the law. In Doe v. Provost, the testator devised lands to his daughter C. during the term of her life, and immediately after her death, unto and among all and every such child and children as the said C. shall have lawfully begotten at the time of her death, in fee simple, equally to be divided between them, share and share alike; it was held, that the four children of the tenant for life, who were living at the time of the death of the testator, took a vested remainder in fee, and that in case there had been any children born afterwards, the estate would have opened for their benefit. There was quite as good ground for the argument in that case, as in the one under consideration, that the estate did not vest in the children of C. until after her death. In the one case, the estate is devised to the remaindermen “immediately after the death” of the tenant for life. Here “ the estate so left ly the father is to vest in the children when the youngest child attains the age of 21.” The interest by both provisions is equally fixed, but the possession is postponed until the happening of the event which is to determine the prior interest. The vesting of interest does not depend upon the condition of surviving, until the youngest child shall attain the age of twenty-one years. Had the devise been to such of the children as should be living when the youngest of the class attained, the age of twenty-one years, their survivor-ship at that period would have been a condition., and the estate would have been limited to those only who survived at that period.
    Courts always lean against construing provisions as conditions, when the intention of the testator does not require them to do so. If violence is not done to the meaning of the testator, they prefer that the estate should vest at once. ' An estate to A. for life, and from and after his death to the children of B., vests in interest, though not in possession, immediately, according to the law as now well established. Then what is there in the language employed in this will, or the codicil, to postpone the interest as well as the possession, until the> youngest child attains the age of twenty-one years ? Surely not in the will, itself, taken as a whole. The intention of the testator, to my mind, favors the construction contended for by the defendants. The whole scope and spirit of the will and first codicil, taken together, go to show that it was the vesting in possession, and not the vesting in interest, which the testator intended to postpone until the youngest child attained the age of twenty-one years. (Moore v. Lyons, 25 Wend. 144, per Chancellor.) Under the will as drawn, without the codicil, the. father of the plaintiff .would have taken a vested estate, both in interest and possession, at the death of the testator. In his codicil he says, “ such children,” (the children of the father,) “ or their issue to take as their father would have talcen under my aforesaid will, if this codicil had not heen made, my intention being that the children of my said grandsons Teunis Tiebout Johnson and John Johnson, shall take the share their father would have taken under the will, subject only to the debt of such father to the said Theodorus Polhemus.” If the devise were otherwise ambiguous, here is certainly a key to the intention of the testator; to give the children the same interest their fathers would have taken under the will, you must give them vested interests. The issue too of the children are provided for, to prevent a lapsé by the death of .any of the children in the lifetime of the testator. To carry out the intention of the testator, the estate must vest in interest immediately in the children. The rents and income.of the estate are to be .applied to the support of the children, and they are in common sense and plain' English, to take such an estate as their respective fathers would have taken, subject only to the debt of such fathers to Theodoras Polhemus. The supreme cqurt in the case'of Wimple v. Fonda, 2 John. Rep. 268, say, it is unnatural to suppose the testator meant to disinherit the posterity of those dying first. Such an unnatural supposition is not warranted in this case, either by the devise standing by itself, or by the intention of the testator, as derivable from the whole will and codicil. My opinion is, that the estate vested in interest in the children as a class, (including the plaintiff,) on the death of the testator, subject to open, to let in others, coming in esse in the intermediate time. If so, the chancellor had clearly the right to order a sale of plaintiff’s interest, and his title was extinguished by such sale.
    . This view renders it unnecessary to consider the points, whether, in any other aspect of the case, the chancellor had a right to order a sale of the premises, and whether the judgment of that court could then be controverted in this suit, against a purchaser who took his title under that judgment. If, as appeared from the manuscript opinion of Jones, Oh. J., he has' decided this question agreeably to the view now contended'for by the defendants, I would from my high and long-cherished respect for the learning and ability of that able jurist, feel predisposed to defer to his.judgment; but I do- not deem it necessary to consider the defendant’s ninth point, which involves the question said to have been decided by the supreme court of this district."
    Judgment for the defendants.
    The plaintiff appealed to the general term.

      N. Merrill, for the plaintiff,
    argued the. different points specified in the-demurrer, and cited in support of the 4th and 5th, 4 Kent, C. 200, 202, 207; 2. Bl. Com. 137, 135, 139; Ambler’s Rep. 202; 4 Kent, (4 ed;) 266, 261, 273, and notes; Lampet’s case, 10 Cokes R. 46; Pelletreau v. Jackson, 11 Wend. 110; Waldron v. Jackson, 13 Wend. 178; Wallabout case.

      M. 8. Bidwell, for the defendant,
    argued the following points: I. The plaintiff in this suit, one of the nine children of Teunis Tiebout Johnson, took, under the first codicil, a legal estate in fee simple, in his share of the one-fifth part of the premises in question, given in the original will to his father. Whitehead C. Johnson took a similar estate. .
    II. The legal estate in the trustees, as to all that part of the trust in the premises beyond what satisfied and paid the debt of Theodoras Polhemus, ceased, when the youngest child of Teunis T. Johnson arrived at the age of twenty-one years, all the purposes of the trust being then satisfied. (Welsh v. Allen, 21 Wend. 147; La Grange v. L'Amoreux, 1 Barb. Ch. R. 18; 4 Kent, 204; Mansfield v. Dugard, 1 Eq. Ca. Ab. 195, pl. 4; Matthew Manning’s Case, 8 Co. R. 95, b.; Boraston's Case, 3 Co. R. 21, a. b.; Hill on Trustees, 240, 241, 239; 1 B. & Cress. 336.)
    III. The proceeds of the sale, under the order of the chancellor, beyond what was applied to the liquidation of the debt of Polhemus, was considered as land in equity, and was held subject to the like trusts as the real estate before the conversion. (1 Hilliard’s Ab. 330, n. C. 2d ed.)
    IV. The children of T. ,T. Johnson take as a class, without any contingency of survivorship, or other contingency, except what is incident to the taking as a class. (Doe v. Provost, 4 John. R. 61; Nodine v. Greenfield, 7 Paige, 544; Doe v. Perryn, 3 T. R. 484; Doe d. Wheedon v. Lea, 3 Ibid. 41; Tomkins v. Tomkins, cited 9 East, 404; Doe d. Hunt v. Moore, 14 East, 601; Edwards v. Symonds, 6 Taunt. R. 213; Goodtitle v. Hayward, 1 Burr. 228; Doe d. Dolley v. Ward, 9 Adol. & Ellis, 588, 589, 607; 2 Pow. on Dev. 215.)
    V. When there is a devise to a class of persons to take effect in possession at a future period, the estate vests in the persons as they come in esse prior to the period of vesting in possession, subject to open and let in others coming in esse in the intermediate time; which opening is the only qualification to the absolute interest thus vesting in them. (Williamson v. Field, 2 Sandford Ch. R. 549, and cases there cited; 2 Pow. on Dev. 215, 303, 304; Tatem v. Tatem, 1 Miles R. 309; Conklin v. Conklin, 3 Sand. Ch. R. 64; Dingley v. Dingley, 5 Mass. R. 535; 9 Adol. & Ellis, 607.)
    VI. The direction in the will that the premises shalLvest in the children when the youngest attains twenty-one, does- not prevent the vesting-in interest, before that;event., Because, (1.) The law favors the vesting of estates, and leans against contingencies, and especially against possibilities. ( Wrightson v. Macaulay, 14 M. & W. 214, and 4 Hare, 287; Doe d. Pilkington v. Spratt, 5 B. & Adol. 731; 9 Adol. & Ellis, 594; 5 Mass. R. 535; Shattuck v. Stedman, 2 Pick. 469, 470; Ferson v. Dodge, 23 Pick. 287 ; 25 Wend. 126; 3 T. R. 494.) (2.) It is the vesting in possession and not in interest, which: is postponed till the majority of. the youngest child. . (1 Fearne.Coñ. R. 2; 1 Williams on Ex.' 759; 2 Ibid. 1035.) '(3.) There; being ..a devise to a class at a future period, and no contingency,, either express or implied, being attached, the. legal operation would not be controlled, even by an intent to the contrary .clearly expressed in the will. .(4.) The testator ■ indicates a .clear intent that the same estate shall pass to the.children:or. their issue, which T. T. Johnson, the father, would .have taken, excepting only as to the charge of the debt of Polhemus.. (5.) To do, this, the children and their issue must take vested interests;, the issue to take in order to prevent a lapse by the death of any of the children in the lifetime of the testator. (Nodine v. Greenfield, 7 Paige, 544; King v. King, 1 Watts & Serg. R. 205.)
    VII. The particular interest in equity, viz., the trust for the maintenance of T. T. Johnson till the youngest child comes to the age of 21 years, is a chattel real in equity, (equity following the law,) and the parties taking the vested remainder in interest in the intermediate time, are seized of the freehold. And. their interests were such as could be sold in and under, the.said proceedings in chancery. (Fletcher on. Trustees, 94; Warter v. Hutchinson, 1 B. & C. 721; Doe d. Player v. Nicholls, 1 B. & C. 336; Co. Lit. 42, a.; 4 Kent, 204; Stanley v. Stanley, 16 Ves. 491.)
    VIII. The court of chancery was a court of general and unlimited jurisdiction. It had jurisdiction of the parties and the subject matter, and was competent to decide whether, under the will and codicils of Teunis Tiebout, the plaintiif was seized of real estate, in the premises in question, which could be sold under the order of that court. The judgment of that court on that'question cannot be controverted in this suit, against a purchaser who took his title,under that judgment. (Grignon’s Lessee v. Astor, 2 How. U. S. R. 319; Clark v. Von Surlay, 15 Wend. E. 447, 448; 1 Pet. C. C. R. 30, 38, 39; 5 Cranch, 173, 186; 3 Vermont R. 119, 120.)
   By the Court.

Oakley, Ch. J.

We are clearly of the opinion that the estate given to the children of T. T. Johnson, vested in interest in such of his children as were living at the death of the testator, and in his after-born children as they were born respectively. It is unnecessary for us to go into the reasons for our judgment, since they are very well expressed in the opinion of Judge Vanderpoel on deciding the case at the special term. We concur fully with him in that opinion. The interests now claimed by the plaintiif were transferred to the defendant Valentine, under the order of sale made by the court of chancery in 1824, and he has no title whatever to the premises in question. .

Judgment affirmed.


author: Mason, J.

text:
    Paillet v. G. and W. Youngs.
    Under the 175th section of the act of 1813 relative to the city of New York, which directs a just and equitable assessment of the expense of various improvements therein mentioned to be made “ among the owners or occupants of all the houses and lots intended to be benefited thereby,” as modified by the first section of the act of May 14, 1840, it is essential to the validity of an assessment for fencing a vacant lot, that the name of the-owner and occupant of the lot should be designated in the assessment list,, and in the advertisement oí sale, Ac. -

      It was the intention of the legislature, by the first section of the act of 1840, that the person last assessed as owner, or who last paid taxes as owner, should be deemed the true owner, for the purposes of the assessment under the l'lBth section of the act of 1813.
    The statute also intended that before a sale of the premises, the assessment should be demanded twice of the actual owner thus ascertained, and that without evidence of such demand, the corporation should have no jurisdiction to sell the property for the non-payment of the assessment.
    If assessors appointed to make an assessment inquire of the collector of the ward, and of the person who collected the taxes of the previous year, as to the ownership of a particular lot, and put the lot in the assessment list as belonging to . a former owner, in consequence of information derived from those persons, the assessment will be good and valid, notwithstanding another person is, at the time, the true owner.
    But where the person named as owner in an assessment is not the real owner, the court will not presume, without proof, that the proper inquiry was made.
    The notice to redeem, required by the third section of the act of May 26, 1841, to be given to the owner and occupant of premises, sold for assessments, by the grantee of the corporation, cannot be given until after the conveyance from the corporation to such grantee has been executed and delivered.
    (Before Duek, Mason, and Campbell, J. J.)
    May 6;
    June 26, 1850.
    This was an action of ejectment, tried before his Honor John W. Edmonds, circuit judge of the first circuit, in March, 1847. The plaintiff read in evidence a deed of the premises in question, executed to him by Edward A. Nicoll, and recorded April 30, 1838. The plaintiff then proved that he was in possession of the premises, (a lot in Eighth-street in the city of New York,) by his tenant, Norris, in August, 1844, when the defendants, claiming the possession of the lot, ordered the tenant off, and built a shop thereon; and that they were still in possession. The defendants claimed title to the premises, under a lease from the corporation of the city of New York, upon a sale of the same for an assessment for fencing vacant lots in the fifteenth ward of the city. The ordinance of the common council appointing assessors to make the assessment, required them to make an estimate of the expense of the proposed improvement, and to make a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, &c. The report of the assessors described the lot in question as being owned by E. A. Nicoll. It appeared by the affidavit of Samuel Dunshee, deputy collector of taxes, that a notice of the object and amount of the assessment, with a request to call and pay the same at the collector’s office, was served by him upon M A. Nicoll, by leaving the same at his residence. In another affidavit, Dunshee swore that he had called two several times upon the owners of the property described in the list or return annexed to the affidavit, and had demanded of them the payment of the assessments. In that list, the property in question was described as assessed by Nicoll.
    It was admitted on the part of the plaintiff that an advertisement, in the' form prescribed by law, but containing the name of Nicoll, and not that of the owner or occupant, had been made •at the times and in the manner directed by law on'sales of ■property for assessments. The defendants’ counsel then read in evidence a lease of the lot in question from The Mayor, Aider-men, and Commonalty of the city of New-York to Jacob A. Jones, for fifteen years, dated January 8, 1844, and proved its delivery to the lessee on the 8d of June, 1844. The defendants’ counsel thereupon offered to read in evidence the following certificate, signed by the street commissioner of the city of New York, under his seal, and dated the third day of June, 1844, viz.: “ I, Samuel S. Doughty, street commissioner of the city of New York, do hereby certify, that the lessee in the preceding conveyance named, has filed with me the affidavit duly certified, and copy of the notice required by the third section of the act entitled ‘ An Act in addition to the acts respecting the collection of taxes and assessments in the city and county of New York,’ passed May 2oth, 1841, and the sixth section of the act amendatory of the same, entitled ‘An Act to authorize the Mayor, Aldermen, and Commonalty of the city of New York to purchase lands for taxes and assessments in certain cases, and for other purposes,’ passed April 18th, 1843. And I do further certif/, that I am satisfied by said affidavit, that the notice, required by said act has been duly served as therein required, and that six months have elapsed since the service of said notice; and that the moneys required to-be paid for the redemption of said property, have not been paid, as required by said acts.” This certificate was objected to by the plaintiffs counsel as inadmissible, but the judge overruled the objection, and the certificate was read in evidence. The defendants’ counsel then read in evidence an assignment of that lease by Jones, the lessee, to the defendants, dated Sept. 5th,* 1844, duly acknowledged and recorded Dec. 2d, 1845.
    The plaintiff’s counsel thereupon insisted that the title of the plaintiff had not been divested from him by the said proceedings, and that he was entitled to a verdict for the property claimed, for the following reasons: First.'Because there was no evidence that the assessment for the fencing in of the lots had been assessed upon the owner or occupant of the lot; nor was there evidence of such an advertisement of sale, as would justify thef sale of the' plaintiff’s property. Second. Because there was no evidence that notice to redeem had been given in the manner required by the act of 1841. Third. Because no order or direction of the alderman or assistant alderman of the ward, in which the premises in question was situated, to fence the said premises, had been introduced in evidence.
    The circuit judge sustained the objections, and directed the j ury to find a verdict for the plaintiff for the premises claimed. To which decision and direction, the counsel for the defendants excepted.
    The jury, under the directions so given to them, found a verdict for the plaintiff, for the premises claimed.
    The cause was transferred from the supreme court to this court, and came up on a case made.

      Wm. W. Van Wagenen, for the plaintiff.

      H. D. Davies, for the defendants.
   By the Court.

Mason, J.

The plaintiff founded his claim to recover in this cause upon three grounds.

I. That the assessment for fencing, &c., had not been laid upon, the owner or occupant of the lot.

2. That the advertisement of sale was not in the name of the owner or occupant.

3. That the notice to redeem required by the act of May 25th, 1841, was not given according to law.

I. The 175th section of the act of 1813 in relation to this subject, (2 R. S. 407,) directs a just and equitable assessment of the expense of various improvements, of which the fencing of vacant lots is one, to be made “ among the owners' or occupants of all the houses and lots intended to be benefited thereby.” The assessment, when made and ratified by the common council, it is provided by the same section, shall be binding and conclusive upon the owners and occupants of such lots so to be assessed respectively, and shall be a lien and charge on such lots, and “ such owners or occupants” shall also be liable to pay the assessment 'on demand, and in default of payment, the amount may be collected by distress and sale of (heir goods and chattels.

The act of April 12th, 1816, (Laws of 1816, ch. 115, § 2, p. 114,) provides that, whenever any assessment upon any lands or tenements in this city shall be unpaid, and the collector shall make affidavit of his demanding the money two several times of “such owner or owners of the said lands” as may reside in the city, and that they have neglected or refused to pay the same, or shall make affidavit that the owner or owners of any such lands cannot upon diligent inquiry be found in the city, then the mayor, &c., may take order for advertisement and sale of the lands as assessed.

It is evident that the persons on whom the demand is to be made by the collector, must be the same persons who are assessed as such owners or occupants on the assessment list. It is no part of his duty to determine who are and who are not owners or occupants. His office is merely ministerial, to collect or endeavor to collect the moneys mentioned in the assessment roll of the persons named therein. The assessment list is the foundation of all the subsequent proceedings. The persons named in it as owners or occupants of any particular lot may have their goods and chattels levied on and sold to pay the assessment; and it is only by the demand of the money upon the person so assessed that the corporation acquire the right to sell the land itself for non-payment of the assessment. It would seem, then, that the designation of the name of the actual owner or occupant is under this statute-essential to the validity of the assessment. The statute intended that before a sale of the premises, the assessment should be demanded twice of the actual owner, and not of any person who might be put down at random as the owner; and that, without evidence of .such demands, the corporation would have no jurisdiction.

The counsel for the defendants contended that the contrary to this had been held by the supreme court in the Matter of John and Cherry streets, (19 Wend. 659,) and in the Matter of William and Anthony streets, (19 Ibid. 679.) On reference to these cases, however, it will be seen that the court lay down no général rule on the subject, but confine their remarks to the facts then before them. The parties who claimed to be the owners of certain pieces of land appeared to oppose the confirmation of assessments for opening and widening streets, and contended that their names were not properly inserted in the assessment list, and the court say that in those assessments the mistake would work no prejudice. It is to be observed, however, that the terms of the 177th section, under which those assessments were made, are very different from the present. That section directs that “ the names of the owners are to be given by the commissioners, only as far forth as the same shall be ascertained by them.” (2 R. L. p. 412.) Neither was the question in those cases raised as to the validity of a sale under such an assessment. Were this case, therefore, to be decided upon the language of the 175th section before quoted, we should have-great doubts whether the assessment, and in consequence the sale of the lot in controversy, were not wholly void.

The first section of the act of May 14th, 1840, (Laws of 1840, ch. 326, p. 272,) has somewhat modified the 175th section of the act of 1813. It is as follows: “ § 1. In all cases where commissioners or assessors shall describe the houses and lots assessed for any improvement, the assessment shall describe and particularize- all' such houses and lots by the- known street number as well as the «ward number, and shall also state the names ,of the owner or owners and occupant or' occupants; and it shall be. the duty of the surveyors, who shall make out the assessment-list, to ascertain by inquiry, to be made of the collector of taxes* of the ward in which the property assessed is situate, and-by inquiry of the person who» collected -the-'taxes of such ward the previous year, as to such ownership, and such collectors shall afford the requisite information.”

The collector of taxes of the ward, and the person who collected the taxes of the ward for the -previous year, are then the sources' from which the assessors or surveyors are to derive their information as to the ownership of the property assessed. They are referred to in their official-capacity, -as public officers, deriving their knowledge from the . tax books placed in their hands. The-surveyors, or persons who make out the assessment lists, thus being directed .to these sources of information as to tbe particular fact of ownership, are to take the fact as shown- by-the tax books to be true. They would not be justifled, perhaps, in -acting on ■ their own private knowledge, nor arfe they required to-look toother sources of information. • The intent of the legislature, we think, obviously was", that the person last assessed as owner, or who last paid taxes ■ as owner, should be deemed, -for the purposes of the -assessments, under the-175th section- of-the-act-of 1813-,• as thctrue owner. - And this construction is confirmed by the third section of the act of May 25th, 1841, (Laws of 1841, ch. 230, p. 210,) which requires that..the- grantee to whom a lot sold for taxes or assessments shall have been conveyed, shall serve a written notice of the sale, -on the person occupying such land or tenements, and the person last assessed as owner. As the premises may have changed owners after the sale, the legislature have adopted the most .feasible mode of-giving the owner actual-notice of the sale, viz., to refer to -the latest assessment books. .*

■ In the case before us, the lot was assessed to E. A. Nicoll as owner. He had been the owner, it is to be presumed, for he conveyed the lot to the plaintiff, and the conveyance was. recorded on the 30th of April, 1838. Did he still appear as owner on the assessment books ? Did the assessors appointed to make this assessment inquire of the collector of "the ward, and of the person who collected the taxes of the previous year, as to the ownership? If they did, and put the lot as belonging to E. A. Nicoll, in consequence of information derived from those persons designated by the law to give it, then the assessment is good and valid in our judgment, notwithstanding the plaintiff was, at the time of the assessment, the true owner. It was his duty to have his name inserted in the assessment roll of the ward as the owner, and if he neglected to do this, he cannot complain of any want of notice occasioned by such neglect.

But how does it appear that E. A. Nicoll’s name was on the collector’s books as the owner of the lot in question ? or that any such inquiry was made as the act of 1841 directs? No evidence was offered of any such inquiry, and we cannot presume that it was made. The property being taken from the true owner by a summary process, the parties claiming under a title derived by such process, must shqw that the law has been strictly complied with. It is no answer to say that at such a distance of time it is impossible to prove the fact. The difficulty in making proof will not repeal the law. The legislature might have said in express terms that the person who last paid taxes, or who was last assessed for taxes, shall be deemed- to be the true owner, and then the mode of proof would be simple. But they have not said so, and have referred the assessors to the information to be derived from personal inquiry of the ward collector. And where the real owner is not named in the assessment, we cannot presume, without proof, that the proper 'inquiry was made. The assessment, for this reason, is, we think, invalid.

If these views are correct, then the advertisement and sale were also void. It is not absolutely necessary, for the purposes of this case, tó decide the third objection.; to wit, that the notice to redeem required by the act of May 25th, 1841, was not given according to law. The question has, however, been argued before us, and it may not be improper to give our views upon it..

The third section of that act is as follows: “Whenever any lands or tenements, sold for assessments or taxes in the city of New York, and conveyed in the manner provided by law, shall, at the time of conveyance, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such lands or tenements, and the person last assessed as owner, stating in substance the sale and conveyance, the person to whom made, and the amount of consideration money mentioned in the conveyance, with the addition of forty-two per cent, on such amount as the said lands or tenements were struck off for at the time of the sale, and the further addition of the sum paid for the lease and advertisements, and stating also that unless such consideration money, and the said forty-two per cent., together with the sum paid for the lease, shall be paid to the street commissioner for the benefit of the grantee, in case the said premises shall have been sold for assessments, or to the comptroller, if the same shall have been sold for taxes, within six months after the service of such notice, that the said conveyance will become absolute, and the occupant, and all others interested in the lands or tenements, be barred from all right or title thereto during' the term of years for which such lands or tenements shall have been conveyed.”

If language means any thing, the notice to redeem required by this section cannot be given until after the conveyance has been executed and delivered. None but the grantee, or a person claiming under him, can serve it; and, as if the term grantee” did not sufficiently imply the actual execution and delivery of the grant, the terms are, “ the grantee to whom the same shall have been conveyed.” The notice must state the consideration money mentioned in the conveyance, and the sum paid for the lease. The amount of redemption money is to be paid for the benefit of the grantee. In default of payment within six months after the service of the notice, the sa'id conveyance will become absolute, and the occupant and all other parties interested will be barred during the term for which the lands shall have been conveyed.

It would hardly be possible to express in clearer terms that the execution and delivery of the conveyance are essential prerequisites to the service of the notice. It follows from this, by necessary consequence, that the right of redemption continues, in case the lot sold shall be in the occupancy of any person, until the expiration, of six months after such notice has been given by a grantee who has actually received his conveyance.

In the present case, the street commissioner, professing to act in pursuance of the seventh section of the abovementioned act, has given a certificate that the notice from the grantee had been duly served, and that six months had elapsed since the service of the same. This certificate bears date the third day of June, 1844, while the lease executed by the corporation in pursuance of the sale, is dated on the eighth of January, 1844, showing conclusively that the notice must have been given before the execution of the lease. Nor is this all. The testimony of James Pattison, the clerk in the office of the street commissioner, shows that the lease was not in fact delivered to the purchaser, until the third of June, 1844, and that when delivered it had the certificate of the street commissioner, before referred to, attached to it.

■ The notice clearly was not in compliance with the statute, and had therefore no effect whatever in barring the right of the owner to redeem. It was suggested on the argument, that this was according to the practice in the street-commissioner’s office, which had arisen upon the idea that the six months’ notio* to redeem might be given as soon as the purchaser was entitled to his lease, and that the actual execution and delivery of the lease were not necessary. But this construction is at variance with both the letter and spirit of the statute. It was also contended that as the seventh section of the act declares that upon the street commissioner giving the certificate, the conveyance shall become absolute, the court cannot go behind the certificate, but that it must be deemed conclusive.

The utmost effect that can be given to this certificate, is to consider it- as prima facie evidence, if taken in connection with the conveyance itself it appears to be in conformity with the, statute. But when from these documents it clearly appears that the six months’ notice has not been given, or that it was given prematurely, the doctrine contended' for would yield to {he street commissioner the power of repealing the statute, in this' respect, at will.

The six months’ notice then, required by the act, has not been given in this case, and consequently the title of the purchaser has not yet become absolute, but the plaintiff, if the assessment were valid, would still have the right of redemption.

It does not follow, however, that he would be entitled, on this ground, to recover in the present suit. If the sale had been regular, the due execution of the lease would have vested the title of the property in the purchaser for the term of years therein mentioned, subject to the right of the owner to redeem within six months after notice served on him according to the act. In the mean time, the legal title of the purchaser would carry with it the right of possession, and the owner would have a mere equity of redemption. Should he at any time before the expiration of six months after notice to redeem properly given, pay or tender the redemption money required by the act, the legal estate and title would by operation of law be revested in him, and he could then sustain his action to recover the possession. But as it is not pretended in this case that the plaintiff has either paid or tendered the redemption money, he cannot recover on this ground.

He is entitled however to judgment upon the first point, and the motion for a new trial is therefore denied.