text:
    Joel Wheeler et al., Appellants, v. William W. Lawson, Respondent.
    Where, in an action of trespass for the unlawful taking and conversion of personal property, it appears that, at the time of the taking complained of, plaintiff was in actual possession thereof, it is no defense to show title in a third person, defendant must connect himself in some way with the owner.
    In such an action it appeared that S., the former owner of the property, executed a chattel mortgage thereon to plaintiff’s assignor. S subsequently made a general assignment for the benefit of creditors. The assignee with the consent of S, surrendered the property to the mortgagee, from whose possession it was forcibly taken by defendant', who, as sheriff, had in his hands an execution against S., issued upon a judgment rendered after the property came into the plaintiff's possession. Seíd, that the invalidity of the chattel mortgage did not justify the taking, as in such case the title was in the assignee of S., and proof of possession in plaintiff was sufficient to sustain the action.
    (Submitted April 16, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment i'n favor of defendant, entered upon the report of a referee.
    This was an action in trespass to recover damages for the unlawful and forcible taking by the defendant from the plaintiffs’ possession and the conversion to his use, of certain horses and other personal property belonging to them.
    The complaint contains the usual allegations in such cases, and the defendant, after a general denial, set up by answer that at the time mentioned in the complaint, he was sheriff of Erie county, and in that character did the acts complained of by virtue of certain executions against one Shoemaker; that the property taken by him was not the property of the plaintiffs, but belonged either to the execution debtor, or to one Allen as his assignee, and who, the defendant alleged, resides in this State and is a necessary party to the action; he also alleged a lien for $91, in favor of Aden as such assignee, for the care, etc., of the property, and its payment by defendant. Some other matters are set out, but they are not material upon this appeal. The record does not contain the evidence, but from the report of the referee, it appears that the following facts were found by him: On the 1st day of January, 1880, said Shoemaker resided in the city of Buffalo, and was engaged in the manufacture and sale of ale and porter. At the same time one Marvin Cline, of the same city, was engaged in the manufacture and sale of malt. Shoemaker was indebted to Oline in a large sum of money upon certain promissory notes made by Shoemaker, and payable to the order of Cline, and he then, in consideration of said indebtedness, executed to Cline an instrument in writing, wherein he transferred and sold to him certain “ goods, chattels, wares and merchandise,” and among other things, the property described in the complaint, upon the condition as expressed in said instrument: “ that if the party of the first shall pay, take up and discharge the said promissory notes at the maturity thereof, and if he shall pay any other promissory note or notes, which shall be indorsed by the said Marvin Cline at his request and for his accommodation * * * then and in that event this instrument shall become null and void, and of no effect whatever.” At the time of its execution and delivery, it was agreed by said Cline, and understood by said Shoemaker, that it would not be filed until Cline should notify him, and that Shoemaker should continue to carry on his business the same as before, which he did until the assignment hereinafter mentioned, and Cline did not take possession of the property, but the same continued in the possession of Shoemaker up to about the 20th day of July, 1880, when he executed a general assignment to one Allen, for' the benefit of his creditors, except so far as said property was changed by Shoemaker in the conduct of his' business. Within a day or two after the delivery of this instrument to Cline, he delivered it to the plaintiffs, “to secure paper of said Shoemaker which then was or might be in existence,” and, on the 11th of June thereafter, executed to them in writing an absolute assignment of all his interest in said bill of sale, and it remained in their possession. Said instrument and assignment were filed op the 25th day of June, 1880, in the office of the clerk of Erie county. After said instrument was delivered to Cline, he furnished moneys and supplied malt to said Shoemaker, to be used by said Shoemaker in his business, and said Shoemaker gave to said Cline therefor certain promissory notes. Each of the notes were made by said Shoemaker payable to the order of said Cline. Cline indorsed and delivered all of them to the plaintiffs herein, in the usual course of business and for a valuable consideration, and they now hold the same. On the 20th day of July," 1880, the plaintiffs went to the place of business of Shoemaker, in the city of Buffalo, and there found Shoemaker and Allen, his assignee, and demanded and took possession of the property described in the complaint herein, under and by virtue of the said instrument, with the , permission of Shoemaker and Allen, and without objection on the part of either of them, and the plaintiffs thereupon caused said property to be advertised for sale, under and by virtue of said instrument. After the making and delivery of said instrument, and before the written assignment thereof was made by Cline to plaintiffs, Shoemaker made or indorsed to the Third National Bank of Buffalo certain promissory notes. These same were not paid when they became due, and judgments were duly recovered thereon by said bank against Shoemaker and others, and "executions were duly issued against the property of thé judgment debtors to the defendant as sheriff of the county of Erie. The judgments were not recovered until after the plaintiffs had taken possession of the property described in the complaint. Defendant, under and by virtue of said execution, thereafter levied upon and took possession of and sold the property described in the complaint, which was then of the value of $6,043.75.
    As conclusions of law the referee found:

      First. That said instrument executed by Shoemaker was void as against the Third National Bank of Buffalo and as against creditors of and purchasers in good faith from said Shoemaker.

      Second. That the plaintiffs cannot maintain the action, and the defendant is entitled to judgment dismissing the complaint.

      Spencer Clinton for appellants.
    Possession by the plaintiffs was sufficient to enable them to maintain the action, the defendant being a wrong-doer. (Stowell v. Otis, 71 N. Y. 36 ; Hendricks v. Decker, 35 Barb. 298 ; Southards. Brenner, 72 N. Y. 424, 427; Brackett v. Harvey, 25 Hun, 502; Mc Queen v. Babcock, 41 Barb. 340; Spring v. Short, 90 N. Y. 558.) The bank not having made its lien specific by judgment and execution prior to the filing of the mortgage, cannot attack its validity on the ground that it was not filed. (2 B. S, 70, § 5; Fraisbee v. Thayer, 25 Wend. 396-8; Van Heusen v. Radcliff, 17 N. Y. 580, 584; Collin Case, 12 Blatchf. 548; 77 id. 628; Lane v. Kutz, 1 Keyes, 203, 214; Kennedy v. Nat. Un. Bk., 23 Hun, 494, 496 ; Hicks v. Williams, 17 Barb. 523 ; Hale v. Sweet, 40 N. Y. 97.) The clause in the mortgage covering stock in trade did not vitiate it. (Chatham Nat. Bank v. O'Brien, 6 Hun, 231; Brackett v. Harvey, 91 N. Y. 214, 224.)

      Adelbert Moot for respondent.
    The bill of sale, not having been followed by an immediate change of possession in the mortgagor, is fraudulent. (2 Kent’s Com. [12th ed.] 527; Twyné’s Case, 1 Smith’s L. Cas. 1, note (a) 592; note to same, 71; Peiser v. Peticólas, 507 Ex. 32 Am. Rep. 621; Sturtevant v. Ballard, 9 Johns. 337; Doane v. Eddy, 16 Wend. 523; Randall v. Cook, 17 id. 53; Griswold v. Sheldon, 4 N. Y. 597 ; Chapin v. Shaffer, 49 id. 407; 20 Alb. L. J. 506.) The failure to file the bill of sale (which was in reality a mortgage, having been given for security merely, and not for the purpose of transferring title, and therefore all the rules applicable thereto, being applicable to it), made it “ absolutely void ” as to all persons who became creditors (by contract or otherwise) of Shoemaker, while it was not on file. (3.R. S. [7th ed.] 2249; Thomas on Mort. 495 ; Laws of 1883, chap. 279, § 2; Otis v. Sill, 8 Barb. 102; Clark v. Gilbert, 14 Weekly Dig. 314; Wood v. Lowery, 17 Wend. 492; Smith v. Acker, 23 id. 653 ; Benedict v. Smith, 10 Paige, 126; Powers v. Freeman, 2 Lans. 127; Hathway v. Howell, 54 N. Y. 97; Steele v. Benham, 84 id. 634.) The mortgage is void, because of the agreement that the mortgagor, or vendor, could continue to use the property as his own. (Potts v. Hart, 99 N. Y. 168; Smith v. Cooper, 27 Hun, 565; Gardner v. McEwen, 19 N. Y. 123 ; Southard v. Benner, 72 id. 429; Edgell v. Hart, 9 id. 213; Brackett v. Harvey, 91 id. 214; Delaware v. Ensign, 21 Barb. 85; Thomas on Mort., 482; Haven v. Jones, 7 Daly, 375 ; Jones on Chat. Mort., § 401; Russell v. Winne, 37 N. Y. 591; Doane v. Eddy, 16 Wend. 523; Randall v. Cook, 17 id. 53.) When defendant seized the property and sold it upon the judgment and execution, based upon claims of a creditor which were intermediate the giving of this void mortgage and the plaintiff’s possession obtained under it, he did a lawful act and his defense is complete. (Thompson v. Van Vechten, 27 N. Y. 568, 582; Rechey v. Stryker, 26 How. Pr. 75 ; 28 N. Y. 45; Frost v. Mott, 34 id. 253; Parshall v. Eggart, 54 id. 52; Dutcher v. Smartwood, 15 Hun, 31; Thomas on Mort., § 345.) The fact that plaintiffs obtained possession under and by virtue of their void mortgage, one day before defendant’s levy on execution, does not give them a cause of action. (Jones on Chat. Mort., § 245 ; Stuart v. Beale, 7 Hun, 405; 68 H. Y. 629 ; Dutcher v. Smartwood, 15 Hun, 31, 33; Thompson v. Van Vechten, 27 N. Y. 581; Frost v. Warren, 42 id. 204; Grouse v. Frothingham, 97 id. 105 ; Dewey v. Moyer, 72 id. 70; Wagner v. Jones, 7 Daly, 355 ; affirmed, 77 N. Y. 590.) The plaintiffs stand in no better position than Cline would with reference to their title and chattel mortgage, from having taken the mortgage to secure Shoemaker’s notes, received in the ordinary course of business by indorsement by Cline, before maturity and Cline’s indorsements. ( Wagner v. Jones, 7 Daly, 355 ; 77 N. Y. 590; 3 JR. S. 7th ed.] 2249; Laws of 1833, chap. 229, § 1; Hern v. Nichols, 1 Salk. 289; Carpenter v. Long on, 16 Wall. 273.)
   Danforth, J.

Upon these facts this appeal should succeed. The plaintiffs were in actual possession of the property when the defendant, against their will, forcibly seized, removed and sold it. This was enough without any other evidence of title to maintain the action (Stowell v. Otis, 71 N. Y. 36), except against the true owner, or one connecting himself in some way with the true owner. The general denial does not avail the defendant, for justification is not admissible under it. The only defense is in the affirmative answer, which sets up that the property seized belonged to Shoemaker, or Levi Allen as his assignee. So far as this answer merely shows title out of the plaintiffs, it is of no consequence. If the title was in fact in Allen, the defendant does not connect himself with it. He must, therefore, rely on showing title in Shoemaker, against whose property only he has execution. This he does not do. On the contrary the answer asserts that Allen, as assignee of the goods, etc., Of Shoemaker, is a necessary party to the action, but no steps appear to have been taken to bring him in, in accordance with this averment. The referee in substance finds that on the 20th of July, 1880, and before the judgment against him was obtained, Shoemaker executed a general assignment of all |his property, including that in question, to Allen for the benefit of his creditors, and by necessary implication also finds that on that day he delivered possession of it to his assignee, for he says Shoemaker continued in possession until he executed the assignment. The assignee is not a party to the suit, and the defendant’s justification fails because he shows that the title is in Allen, against whom he has no claim. It is conceded that if the judgment creditor were seeking to secure the avails of the mortgaged property by proceedings in the nature of a credit- or’s bill, and did not attack the assignment as well as the mortgage, then it would not be entitled to relief, because a judgment setting aside the incumbrance by mortgage would not afford the bank any relief, as the property or the avails of it would belong to the assignee, and so it was held by us in Spring v. Short (90 N. Y. 538). The form of the action is immaterial where the same facts appeal-. Here they do. The respondent argues that showing title in Allen will not enable the plaintiffs to sustain the action without that title has been transferred to them. Doubtless that is so. They did not need to show it. Possession was enough, prima facie, to sustain the action, but it does appear, however, that possession was taken by Allen’s permission. Besides, as the goods when seized by the defendant were in the actual possession of the plaintiffs, the burden was upon the defendant either to prove title in Shoemaker, or to connect himself with Allen’s title, and show that the taking was by his authority, or by virtue of process or right acquired through legal proceedings .against him. (Merritt v. Lyon, 3 Barb. 110; Demick v. Chapman, 11 Johns. 132 ; Hurd v. West, 7 Cow. 752.) Neither of these things were accomplished. No invalidity is found as to the assignment, nor any unwillingness on the part of the assignee to perform his duty under it. He stands, not a mere representative of the debtor, but of the rights of creditors, and may impeach the assignor’s conveyances, although the debtor could not do so. (Laws of 1858, chap. 314.) So also as the title to the property passed to Allen by the assignment, he could doubtless, as the defendant’s counsel says, maintain his action in trover. He could do so because he was the general owner. But so also could the plaintiffs, because their possession was, upon the findings of the referee, by the permission of the assignee. They had thus a special property, or interest in the articles, and a recovery by either would be a bar to an action by the other. But it is enough to defeat the justification set up in this action that at the time the defendant levied, the judgment and execution debtor had no right or interest in the property, it having passed from him by the prior assignment to Allen ; and as this was before judgment, so of course it was before execution issued, and the goods were neither actually nor constructively bound by.it. (2 R. S. 365, § 13; Code; § 1405.) It is, therefore, unnecessary to consider other questions raised by the appellants, or anticipate how they may stand upon another trial.

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

All concur, except Finch, J., dissenting, Andrews, J., not voting, and Miller, J., absent.

Judgment reversed.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Cornelius Vanderzee, et al., Respondents, v. Harmon Slingerland et al., Appellants.
    Where there is a devise or bequest dm/plietter to one person absolutely, and in case of his death to another, it is a settled rule of construction that the words of contingency refer to a death in the life-time of the testator.
    The same rule applies where the devise over is not dependent upon the event of death simply, but upon death in connection with some collateral event, as death without issue or without children, etc.
    The rule in the latter case stands more upon authority than reason, and the tendency of courts is to lay hold of slight circumstances to vary the construction, and give effect to the language according to its natural import, as referring to a death under the circumstances mentioned, happening either before or after the death of the testator.
    The will of V. devised his real estate to his son Cornelius, “ subject to the proviso hereinafter contained.” After various legacies, which were in consideration of the devise directed to be paid by C. within two years after the testator’s death, the will contained a proviso to the effect that if Cornelius died without issue then the estate devised to him should go to four grandchildren of the testator. The concluding portion of the clause is as follows : “ In case my son Cornelius should die before the provisions of this will become an act the devisees last named shall perform and fulfill all the conditions required of my son Cornelius to the legatees named.” Cornelius survived the testator, but died without issue. In an action for partition, held, that the words “ died without issue ” referred to a death at any time, whether before or after death of the testator ; that Cornelius took unconditional fee, and the grandchildren a contingent interest by way of executory devise, which, upon the happening of the contingency provided for, was converted into a fee, thereby displacing the conditional fee.
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 26, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.
    This was an action for partition. The facts are sufficiently stated in the opinion.

      Nathaniel C. Moak for appellants.
    The second clause of the will devises the real estate — not a mere life estate— absolutely to his son Cornelius, subject to the proviso hereinafter contained. (Roseboom v. Roseboom, 15 Hun, 309.) Since the Revised Statutes this gives the fee without adding the word “ heirs.” (1 R. S. 748, § 1; Edm. Stat. 699 ; Roseboom v, Roseboom, 15 Hun, 314; Bishop v. Bishop, 4 Hill, 138 ; Kelly v. Kelly, 5 Lans. 443; affirmed, 61 N. Y. 47 ; Kirk v. Richardson, 32 Hun, 434, 435.) Had Cornelius had issue, such issue would have taken no estate in the lands. (Post v. Hover, 33 N. Y. 593 ; 2 R. S. 66, § 52 ; 2 Edm. Stat. 66.) The tenth clause, providing for Cornelius dying without issue, refers to his so dying during the life-time of the testator only. The clause is one of contingency and not of limitation. (Kelly v. Kelly, 5 Lans. 443-449; affirmed, 61 N. Y. 47, 50-51; McLaughlin v. Maher, 17 Hun, 215; Gibson v. Walker, 20 N. Y. 476, 483; Livingston v. Greene, 52 id. 124;
      Embury v. Sheldon, 68 id. 233 ; Converse v. Kellogg, 7 Barb. 590 ; Goodall v. McLean, 3 Bradf. 309 ; Moore v. Lyons, 25 Wend. 127-8; O'Brien v. Hervey, 2 Edw. Ch. 249; Cross-man v. Fields, 119 Mass. 170, 172; Abbott v. Bradstreet, 3 Allen, 589; Waugh's Appeal, 78 Penn. St. 436; Stone v. Nicholson, 27 Gránt. [Va.] 17-18 ; Snell v. Davis, 23 Grant’s [U. C.] Ch. 132; Leonard v. Kingsland, 19 N. Y. Week. Dig. 478; 67 How. Pr. 431; Kerr v. Bryan, 82 Hun, 51, 53; In re Tallmadge, 20 N. Y. Week. Dig. 69 ; 34 Hun, 624 ; 61 N. Y. 47; 68 id. 227; 19 Week. Dig. 161; 81 N. Y. 365 ; 91 id. 464; 52 id. 118; In re Mahan, 32 Hun, 73, 75 ; Taggart v. Murray, 53 N. Y. 233 ; Mickley's Appeal, 92 Penn. St. 514; Carroll v. Burns, 15 Weekly Notes of Cases, 553, 557; Voorhis v. Bank, 10 Peters, 471; Scott v. Guernsey, 60 Barb. 163; 48 N. Y. 106.) By holding that the grandchildren were merely substitutional in case Cornelius died before the testator, with no issue to take, every word and clause of the will is simple and easily understood, can be literally and exactly complied with without any departure from the plain, obvious and primary import and acceptation of the words used. (Wigram on Extr. Ev. [2d Am. ed., O’Hara’s] 55-6, rules 13, 14; id. 102.) When an estate is given in one part of a will in clear and decisive terms, such estate cannot be taken away. (Roseboom v. Roseboom, 81 N. Y. 356.) The subsequent words or provisions if repugnant to or inconsistent with the first provision, will be held void. (Van Horn v. Campbell, 3 East. Rep’r, 428; Caldwell v. Beaumont, 91 N. Y. 468 ; Clark v. Leupp, 88 id. 218; Jackson v. Robbins, 16 Johns. 537; Jackson v. Bull, 10 id. 19 ; .McDonald v. Wall-grove, 1 Sandf. Ch. 247.) The devisees having accented the devise, that imposed upon them a personal liability and duty to pay the legacies given by the testator, without reference to the fact whether the property devised and accepted was sufficient for that purpose. (Gridley v. Gridley, 24 N. Y. 130; reversing, 33 Barb. 250; Harris v. Am. Bib Soc., 4Trans. App„ 488-492; Heard v. Horton, 1 Denio, 165; Cipperly v. Cipperly, 40 How. Pr. 271-3; Dumond v. Stringham, 26 Barb. 104; Spraker v. Van Alstyne, 18 Wend. 200, 204-9, 212 ; Barheydt v. Barheydt, 20 id. 576, 581; Fox v. Phelps, id. 437,442 ; affirming, 17 id. 393; Mesick v. New, 7 N. Y. 165, 166; Olmstead v. Olmsted, 4 id. 56-58 ; Jackson v. Martin, 18 Johns. 131; Jackson v. Merrill, 6 id. 185; Maclachlan v. Maclachlan, 9 Paige, 534, 537, 538 ; Cook v. Holmes, 11 Mass. 532.) Where a will gives cross remainders, or the estate to a “ survivor ” of two or more persons living, it converts what otherwise would be a fee into a life estate from “the plain and forcible import of the word " survivor.’ ” In such case the time of the death of the first taker is fixed not with reference to that of the testator, but of some other designated person — the first taker. (4 Kent’s Com. 201, marg. p.; Wilkes v. Lion, 2 Cow. 392; Vedder v. Evertson, 3 Paige, 290 ; Waldron v. Granim, 6 Hill, 603 ; Buel v. Southworth, 70 N. Y. 581; Nellis v. Nellis, 2 East. Rep’r, 423 ; Wilson v. Wilson, 32 Barb. 333-4; Den v. Allaire, 20 N. J. Law, 6, 11; Bayless v. Prescott, 79 Ky. 253.) Cornelius Vanderzee, the devisee, took a fee, because the attempted gift over was an executory devise. (Coe v. Dewitt, 22 Hun, 428 ; Wycoff, 2 N. Y. 355; Seaman v. Harvey, 16 Hun, 71; Campbell v. Van Horne, 3 East. Rep’r, 84, 85; Campbell v. Beaumont, 91 N. Y. 464; Clark v. Leupp, 88 id. 228.)
    E. Countryman for respondents.
    The testator gave to his son Cornelius a contingent estate in fee, subject to be and which was reduced to a life estate by his death without issue, and the fee then passed to the grandchildren. (Buel v. South-wick, 70 N. Y. 581, 585, 586; Nellis v. Nellis, 99 id. 505, 511, 512; Kelso v. Lorillard, 85 id. 177 ; Dumond v. Stringham, 26 Barb. 105; Sherman v. Sherman, 3 id. 385, 387; Britton v. Thornton, 112 U. S. 526; 1 B. S. 722, §§ 3, 5; id. 723, § 13; id., § 22; id. 724, § 34; Hennessy v. Patterson, 85 N. Y. 100; 1 R. S. 725, § 27.) The death mentioned in the provision creating such estate necessarily refers to the time of his dying without issue, whenever he may happen to die, in the condition or under the circumstances expressed. (Kelly
      v. Kelly, 5 Lans. 443, 448 ; 61 N. Y. 47; Moore v. Lyons, 25 Wend. 119; Converse v. Kellogg, 7 Barb. 590; Livingston v. Creene, 52 N. Y. 118, 124; Embury v. Sheldon, 68 id. 227 ; Buel v. Southwick, 70 id. 586; Britton v. Thornton, 112 U. S. 526, 532, 533; 3 Jarman on Wills, 590 [5th Am. ed., 1881, from 4th Lond, ed.] ; Barnes v. Hathaway, 66 Barb. 452, 455 ; Hennessy v. Patterson, 85 N. Y. 92, 101, 104, 105; Foley v. Foley, 17 Hun, 236, 238; Kelso v. Lorillard, 8 Daly, 300, 302 ; 85 N. Y. 177 ; Sherman v. Sherman, 3 Barb. 385 ; Dumond v. Stringham, 26 id. 105, 114, 115, 116, 117; In re N. Y., L. & W. R. R. Co., 18 N. Y. Week. Dig. 211; Denny v. Kettell, 29 Alb. L. J. 57; Huriburt v, Emerson, 16 Mass. 241; Hawley v. Northampton, 8 id. 3, 37; Norris v. Beyea, 13 N. Y. 273, 284, 285; Taylor v. Dodd, 2 T. & C. 92, 93.)
    The charge made of the payment of the legacies upon the devisee did not enlarge the estate of Cornelius to an absolute fee. (Nellis v. Nellis, 99 N. Y. 505 ; Tanner v. Livingston, 12 Wend. 83, 95; Penn v. Slater, 5 D. & E. 335, 337; Doe v. Owens, 1 Barn. & Adol. 318; Doe v. Wright, 2 id. 710; Bowers v. Porter, 4 Pick. 198, 204; Lessee of Willis v. Bucher, 4 Binn. 455, 464, 465; Dixon v. Homage, 2 W. & S. 142, 144; Spraker v. Van Alstyne, 18 Wend. 200, 205 ; Barheydt v. Banheydt, 20 id. 576, 581; Fox v. Phelps, 17 id. 393, 400; Mesick v. New, 7 N. Y. 163, 165; Harris v. Bible Soc., 4 Trans. App. 485, 492; Dumond v. Stringham, 26 Barb. 105, 110 ; Cipperly v. Cipperly, 40 How. Pr. 271; Loder v. Hatfield, 71 N. Y. 92, 97; Van Dyke v. Emmons, 34 id. 186; Heard v. Horton, 1 Denio, 165, 167; Jackson v. Merrill, 6 Johns. 185, 193.) The devise over to the grandchildren was void, because it was limited to take effect upon an indefinite failure of issue. (2 K, S. [6th ed.] 1102, § 22; Sherman, v. Sherman, 3 Barb. 385 ; Norris v. Beyea, 13 N. Y. 274, 280; Tyson v. Blake, 22 id. 558, 563; Rathbone v. Dykeman, 3 Paige, 9, 80 ; Coe v. De Witt, 22 Hun, 428.)
   Andrews, J.

The sole question presented is whether Cornelius Vanderzee took under the will of his father, Harmon Vanderzee, an estate in fee-simple in the homestead farm, or a fee subject to a conditional limitation in favor of the four grandchildren of the testator, named in the will, in the event of the death of Cornelius without issue. The testator died m 1840. His son Cornelius entered under the devise and continued in possession of the farm until his death in 1876. The plaintiff Cornelius Vanderzee is one of the four grandchildren named in the will, and his right to maintain this action depends upon the nature and quality of the title which the testator’s son Cornelius took under the will of his father. The will is brief, and is a will of real estate exclusively. .The testator in the first clause directs that his debts and funeral charges shall be first paid out of his estate The second clause is as follows: “All my real estate as now in my actual possession, being my homestead farm, situate in the county of Albany, I devise to my son Cornelius, subject to the proviso hereinafter contained.” The third clause directs that his wife, if she survive him, shall have an ample support from and out of the estate devised to Cornelius, during her life. The fourth, fifth, sixth, seventh and eighth clauses bequeath .severally to his three daughters, his son Teunis, and his grandson, Harmon Slingerland, money legacies amounting in the aggregate to $1,700. The ninth and tenth clauses are as follows : “ Ninth. The legacies above mentioned are to be paid to the legatees by my son Cornelius, in consideration of my devising unto him the aforementioned real estate, to be paid to them respectively within two years after my death. Tenth. In conclusion, my will is that if my son Cornelius dies without issue, that then the estate herein devised to him shall go to my grandchildren hereinafter named: Harmon T. Vanderzee, Cornelius T. Vanderzee, sons of my son Tunis; Harmon Slingerland, son of my daughter Elizabeth, deceased, and Harmon Houghtaling, son of my daughter Eve, share and share alike, and m case my son Cornelius should die before the provisions of this will become an act, the devisees last named shall perform and fulfill all the conditions required of my son Cornelius to the legatees named in this my will.”

The whole question is whether the words, “ if my son Cornelius dies without issue,” in the tenth clause, refer to the event of his death before that of the testator, or to a death at anytime, whether before or after the testator’s death. If the former is the true meaning, the gift over to the grandchildren was substitutionary merely, depending on the contingency of the death of the primary devisee in the Jife-time of the testator, and designed to prevent a lapse, and upon that construction, Cornelius having survived the testator, the contingency upon' which the grandchildren were to take, was gone, and Cornelius took an absolute fee. If on the other hand the words refer to a death at any time under the circumstances mentioned, then on the death of the testator, the grandchildren took a contingent interest under the will, by way of executory dexdse, which on the death of Cornelius without issue, was converted into a fee in them, thereby displacing and subverting the conditional fee before that time vested in Cornelius. It has been claimed indeed that the devise to Cornelius was of a life estate only, but this is, we think, an inadmissible construction of the dexdse. The devise xvas in terms of all the testator’s real estate in possession, and the language is sufficient both at common law and under the statute, without words of inheritance, to embrace the fee (1 R. S. 748, § 1), and the gift over, in the event only of the death of Cornelius without issue, furnishes the strongest ground of implication that the testator intended to vest in Cornelius a title transmissible by descent to his issue.

It is said by Mr. Jarman (2 Jarm. on Wills, 752) to be an established rule that where a bequest is simply to one person, and in case of his death to another, the primary devisee surviving the testator, takes absolutely. This rule applies both to real and personal estate, and so far as I know the authorities in this country uniformly sustain the construction that where there is a devise or bequest simplioiter, to one person, and in case of his death, to another, the words refer to a death in the life-time of the testator. (Moore v. Lyons, 25 Wend. 119; Kelly v. Kelly, 61 N. Y. 47; Briggs v. Shaw, 9 Allen, 516; Whitney v. Whitney, 45 N. H. 311.) It is said in support of this construction that as death, the most certain of all things, is not a contingent event, but the time only, the words of contingency in a devise of the character mentioned, can be satisfied, only by referring them to a death before a particular' period, and as no other period is mentioned, it is necessarily presumed that the time referred to is the testator’s own death, (See Edwards v. Edwards, 15 Beav. 357.) We think this construction, stands more strongly, in most cases at least, upon the probable intention of the testator. It prevents the disinheritance of a testator’s posterity, which would often happen if a death of the primary legatee at any time, was held to be within the meaning of the devise. It may be safely assumed that where a will is dictated under the influence of family relations, it would seldom happen that a testator would intentionally cut off the issue of a son or daughter from taking the share of the parent in his estate, for the benefit of collateral objects.

There are cases of another class than the one mentioned, in which an alternative limitation, depending upon the death of a primary legatee or devisee, is also held to refer to a death in the life-time of the testator, although the cases are not within the reason upon which the construction in the class of cases first referred to, is supported. One of the eases of the second class is where a devise is made to A., and in case of his death without issue, or without children, or without leaving a lawful heir, then to B. It is manifest that the event on which the gift over is to take effect, is distinctly pointed out, and is uncertain and contingent, viz.: death without issue, etc., and it is not necessary in order to give effect to the words of contingency, to refer the death to one happening before the death of the testator. So also such a construction is. not necessary to prevent the disinheritance. of issue, for it is only in the event that there is no issue, that the gift over is to operate. It is said by Mr. Jarman (2 Jarm. 783) to be the general rule that where the context is silent, words referring to the death of the prior legatee, in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator. It will be observed that the rule as stated by the learned author relates to personal property and is deduced from the later English cases upon the construction of bequests of personalty, coupled with a contingency, which seem to have modified the earlier decisions. But where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, it has I think been uniformly held in England, and it is the rule supported by the preponderance of judicial authority in this country, that the words refer to a death without issue, in the life-time of the testator, and that the primary devisee surviving the testator, takes an absolute estate in fee-simple. (Clayton v. Lowe, 5 Barn. & Aid. 636; Gee v. Mayor of Manchester, 17 Adol. & Ell. [N. S.] 737; Woodbourne v. Woodbourne, 23 L. J. Ch. 336; Doe v. Sparrow, 13 East, 359 ; Quackenboss v. Kingsland, 102 N. Y. 128; Livingston v. Greene, 52 id. 118; Embury v. Sheldon, 68 id. 227; Waughs Appeal, 78 Penn. St. 436; Mickley's Appeal, 92 id. 514. But see Britton v. Thornton, 112 U. S. 526.) The case of Quacleenboss v. Kings-land, was that of a devise by the testator of the residue of the real and personal estate to my son Daniel Kingsland, and to his heirs, but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children, share and share alike,’ ’ and it was held, in exact conformity with the decisions to which we have referred, that the words referred to the death of the primary devisee in the life-time of the testa-( tor. This rule of construction in this class of cases is founded! in part upon the disinclination of the courts to cut down a feel once given, except upon clear words, but rests more upon ouf thority and precedent than reason, for it is by no means certanl that it was not the intention of the testator to control and provide for the ulterior devolution of the title, after it had beeh enjoyed during life by the primary devisee, in case he then died without issue, and such a construction would, it would seem, give effect more completely to the language used.

But the rule established by the courts applies only where the context of the will is silent, and affords no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue or other specified event. Indeed the tendency is to lay hold of slight circumstances in the will, to vary the construction and to give effect to the language according to its natural import. (Buel v. Southwick, 70 N. Y. 581; Nellis v. Nellis, 99 id. 505 ; Hennesy v. Patterson, 85 id. 91,92.) In these and other cases which might be cited, the court found in the context indications of intention which took them out of the operation of the rule to which we have referred. We are of opinion that there are indications in the will, now before us, that the testator intended that the gift over to the grandchildren should take effect upon the death of his son Cornelius, -without issue, at any time,' either before or after his own death, and that the rule of construction which applies to the words “ death without issue,” when standing alone, does not apply to the will in question. The gift to Cornelius in the second clause of the will is made subject to the proviso hereinafter contained.” Reading this clause by itself, we should naturally expect to find in a subsequent part of the will some condition modifying in some contingency the estate given to Cornelius, and while the condition might, consistently with the language of the second clause, be either precedent or subsequent, the more natural meaning suggested by the words subject to the proviso hereinafter mentioned,” would be that the testator intended to subject the estate in the hands or possession of Cornelius, when he should take it under the will, to some condition, looking then at the tenth clause, we find a condition or proviso which is that on the death of Cornelius- without issue, the estate should go over to the grandchildren. This provision in the tenth clause, standing alone, would, according to the general rule of construction, be construed as referring to the death of Cornelius, without issue, during the testator’s life. But construed in connection with the natural meaning of the second clause, there is color for a conclusion that it referred to a death either before or after, the testator’s. But more satisfactory evidence that the testator referred to a death at any time, is found in the last paragraph of the tenth clause, which declares, “ in case my son Cornelius should die before the provisions of this will become an act, the devisees last named (the grandchildren) shall perform and fulfill all the conditions required of my son Cornelius to the legatees named in this my will.” It seems obvious that the duty imposed upon the grandchildren by this clause, was a duty to be discharged by reason of an omission or default of Cornelius to satisfy the legacies. If the object of this clause was simply to impose upon the grandchildren- the duty of paying the legacies in case the alternative gift took effect by the death of Cornelius, without issue, in the life-time of the testator, so that thereby they became primary devisees, the testator would naturally have expressed his intention in simple and clear language, as by declaring in connection with the gift over, that the grandchildren should pay the legacies, or that they should take the land subject to their payment. The phrase “ in case my son Cornelius should die before the provisions of this will become an act,” is obscure. But it is to be observed that Cornelius had, by the terms of the ninth clause, two years in which to pay the legacies. The testator must be assumed to have had in mind two contingencies, (1) that Cornelius might die before him, without issue, or (2) after him, but within the two years, and before he had paid the legacies. The last paragraph of the tenth clause was inserted, we think, to provide for both contingencies, and the burden of paying the legacies was imposed upon the ulterior devisees, in case of the death of Cornelius either before the testator, or after his death and within the two years, in case the direction for their payment should then be unexecuted. If this is the fair construction of the clause, then it is clear that the words “ death without issue,” referred to a death at any time, because it is inconceivable that the testator could have intended that the grandchildren should pay the legacies, except in the event of their taking under the devise. The clause is not, that in case Cornelius dies before the will takes effect, then the grandchildren shall pay the legacies, but, “ in case he dies before the provisions of this will become an act,” i. e., before he shall have paid the legacies. The legacies were, an equitable charge on the land. (Harris v. Fly, 7 Paige, 421, 422.) The fact that they were also personally charged on Cornelius does not, we think, require us to hold that he took a fee-simple. The ciicnmstance that a devisee is personally charged with the payment of legacies, is a fact resorted to in doubtful cases, in-aid of the construction of a devise, but is never decisive that a fee was given where a different intention is disclosed.

We think the judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    Edgar Munson et al., Appellants, v. The Syracuse, Geneva and Corning Railroad Company et al., Respondents.
    A trustee may not, as such, purchase property in which he has an individual interest. The law, in such case, does not stop to inquire whether the transaction was fair or unfair, but, when the relation is disclosed, sets aside the transaction, or refuses to enforce it at the instance of the cestui que trust.

    A corporation, in order to defeat a contract entered into by its directors on its behalf, in which one or more of them had a private interest, is not hound to show that the influence of the director or directors having the private interest determined the action of the board.
    The promoters of a corporation do not represent it in any relation of agency, and have no authority to enter into preliminary contracts binding the corporation when it shall come into existence, and, if its sanction to such a contract is obtained by the act or co-operation of a director who has a private interest, it may resist an action for specific performance, at least in a case where it has- not accepted the consideration or taken the benefit of the contract.
    Plaintiffs were the owners of nearly the whole of an issue of mortgage bonds made by the S. B. & C. R. R. Co. Said corporation having become insolvent and having abandoned the enterprise 'of constructing its road, plaintiffs entered into a contract with defendant Magee, which recited that Magee represented persons and interests proposing to organize another railroad company. By the contract, plaintiffs agreed to foreclose the mortgage securing the bonds, to purchase the property covered by the mortgage on foreclosure sale, and to convey the same to Magee, or to the company proposed to be organized. Magee agreed to deliver to plaintiffs, in payment for the property so conveyed, first mortgage bonds of the new. company to an amount specified. A new company was organized, which contemplated building a road on substantially the same line as that of the old company, of which new company plaintiff Munson was president and a director. Its board of directors passed a resolution assuming the obligations of Magee and subsequently a new contract was made between it and plaintiffs, which substituted the company in place of Magee in the contract. Munson, as a director, participated in the meeting of the board at which the resolution was passed and, as its president, executed the new contract. The new company subsequently located an entirely new line upon which to build its road. Plaintiffs foreclosed the mortgage and purchased the property, which consisted of rights of way and a road-bed, partially graded over a portion of the route of the old company. Sold, that an action to compel a specific performance of its contract by the new company was not maintainable ; that the right of the company to repudiate the contract was not affected by the fact that Munson’s associates, the other plaintiffs, were not themselves disabled from contracting for it, or that Munson was but one of ten directors who voted in favor of the contract; also held, that the case was not within the terms or the spirit and intent of the act of 1873 (Chap. 710, Laws of 1873), which authorizes the purchaser, on foreclosure of the property of a railroad corporation, to form a new corporation to operate the road.

      It seems that an agreement on the part of a railroad corporation, made on the purchase of rights of way, to pay therefor in bonds of the corporation, secured by mortgage upou its property, is within its implied, if not within its express power. (Subd. 10, § 38, chap, 140, Laws of 1850.)
    (Argued April 38,1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment in favor of defendants, entered upon the report of a referee.
    This action was brought to compel the specific performance of a contract, the substance of which and the material facts are set forth in the opinion.

      Samuel Hand, Richard L. Hand and B. W. Huntington for appellants.
    ' The. scheme embraced in the contract is such as is expressly authorized by the statutes which permit mortgagees of railroad property on foreclosure to become purchasers of and convey the same (Chap. 444, Laws of 1857), and the organizatian of a new company by such purchasers; their assignees and associates. (Laws of 1854, chap. 282, §1; Laws of 1873, chap. 469, §1; Laws of 1873, chap. 710, §1; People v. Brooklyn, etc., R. R. Co., 89 N. Y. 75.) The contract is not void or against public policy by reason of any provision in it having a tendency to prevent or restrict competition at a public sale. (Atchinson. v. Mallon, 43 N. Y. 147, 151; Jones v. Caswell, 3 Johns. Cas. [2d ed.], note, p. 33 ; Marsh v. Russell, 66 N. Y. 288, 292; People v. Stevens, 71 id. 546; Marie v. Garrison, 83 id. 14; Bellows v. Russell, 20 N. H. 427; Breslin v. Brown, 24 Ohio, 164; S. C., 15 Am. Rep. 627; Cornell v. U.1, & E. R. R. Co., 61 How. Pr. 193; Baume v. Drew, 4 Den. 287 ; Wicker v. Hoppock, 6 Wall. [U. S.] 94; Phippen v. Stickney, 3 Metc. 384; Garrett v. Moss, 20 II1. 549; Smith v. Ullman, 58 Md. 183; Jones v. Worth, 12 Eng. Rep. 826 ; McKenna v. Bulger, 30 Hun, 384.) The law will not presume a contract illegal or against public policy when it is capable of a construction which will make it consistent with the law, and that construction is to be preferred which' will support rather than that which will avoid it. (Ormes v. Dauchy, 82 N. Y. 443, 448 ; Curtis v. Gokey, 68 id. 304; Bigelow v. Benedict, 70 id. 202, 204 ; Harris v. Trow-bridge, 83 id. 92, 99.) The contract is not against public policy or otherwise void by reason of any fiduciary relations of Munson to the Sodus Bay and Corning Bailroad Company. (Duncomb v. N. Y., H. & N. H. R. R. Co., 84 N. Y. 190; S. C,88 id. 1; Harpending v. Munson, 91 id. 602, 654; Twin Lick Oil Co. v. Marbury, 91 U. S. 587; Elliott v. Wood, 45 N. Y. 71; Van Cott v. Van Brunt, 82 id. 535; Atty.-Gen'l v. Great East. R. Co., 27 Eng. Rep. 672 ; Olcott v. Tioga R. R. Co., 27 N. Y. 546 ; 40 Barb. 179 ; Boerum v. Schenck, 41 N. Y. 182; Thomas v. Brownville, etc., R. R. Co., 108 U. S. 524; 2 B. S. 463, § 38 ; Slee v. Bloom, 19 Johns. 456 ; Briggs v. Penniman, 8 Cow. 387 ; Bank of Columbia v. Atty.-Gen'l, 3 Wend. 595 ; Brandt v. Benedict, 17 N. Y. 99 ; Webster v. Turner, 12 Hun, 264 ; Kincaid v. N. Y., etc., Co., 80 N. Y. 599; Losee v. Bullard, 79 id. 404; Mickles v.
      Rochester City Bk., 11 Paige, 118, 128.) The defendants are not entitled to be relieved from performance by reason of any fiduciary relations of Munson to the defendant company as director, president or otherwise. (Bunge v. Koop, 48 N. Y. 225; Bates v. Rosekrans, 23 How. 98; approved in Clark v. Dillon, 91 N. Y. 370 ; Wright v. Delafield25 id. 266 ; E. L. Ass. Co. v. Cuyler, 75 id. 515; Hall v. U. S. Reflector Co., 30 Hun, 375; Hudson v. Swan, 83 N. Y. 552; Southwick v. F. N. Bk., 84 id. 420 ; Barnes v. Brown, 80 id. 535; Risley v. I. B. & W. R. R. Co., 62 id. 240.) A majority of the directors constituted a quorum for the transaction of business, and the decision of a majority duly assembled is valid as a corporate act. (1 R. S 600, § 6 ; Butts v. Wood 37 N. Y. 317; Coleman v. Second Ave. R. R. Co., 38 id. 201, 203-4; U. P. R. R. Co. v. Credit Mobilier, 135 Mass. 367; Cole v.- Boardman, 123 id. 548; H. R. Brewing Co. v. White, 5 Mo. L. Bul. 19.) Those who have the largest interest in corporations may control them. (Barnes v. Brown, 80 N. Y. 537; Van Cott v. Van Brunt, 82 id. 540-1.) The fact that Munson was president of the company added nothing to his fiduciary obligations. Neither statute nor by-law of the company, so far as appears, conferred on him any authority or charged him with any duty beyond that of any other director. (Laws of 1850; General Railroad Law, chap. 140, §§ 1-6 ; Laws of 1854, chap. 282, § 1; Laws of 1857, chap. 444, § 1; Laws of 1873, chap. 469, § 1; Laws of 1873, chap. 710, § 1.) The fact that Munson, subsequent to the making of the contract, became a director and the president of the new company in no way relieves defendants from their obligations. The question of the legality of a contract is to be determined with reference to the time when it was made. (Mayor, etc., v. Norfolk R. Co., 30 Eng. L. & Eq. 133; Hawks v. East. Counties R. Co., 15 id. 358; affirmed, 35 id. 8; Green’s Brice’s Ultra Vires, 494.) It will be presumed that the purpose of the contract, and that of forming the new corporation was lawful, unless the contrary distinctly appears. (Nelson v. Eaton, 26 N. Y. 410 ; Mechanics' Bkg Ass. v. S. V. S. & L. Co., 25 Barb. 420; Farmers' L. &

      T. Co. v. Ourtis, 3 Seld. 466.) Contracts preliminary to the formation of a corporation by persons acting in behalf of the corporation to be formed, if legitimate, are binding on the corporation when formed. . Such persons are the agents to bring the corporation into existence, the contracts are the means by which this is done, and the formation of the corporation is a ratification of the contracts. (Hawks v. Eastern, Co. R. Co., 15 Eng. L. & Eq. 358 ; Lindsay v. G. N. R. Co., 19 id. 87 ; Preston v. Liverpool, etc., R. Co., 7 id. 124; Scottish, etc., R. Co. v. Stewart, 3 McQ. 388, 416 ; Mayor, etc., v. Norfolk, etc.,R. Co., 30 Eng. L. Eq. 120 ; Lorrillard v. Clyde, 86 N. Y. 384,389; Bommer v. Am. Spiral., etc., Co., 81 id. 468, 472; 473; Whitney v. Wyman, 101 U. S. 392 ; Reformed Church v, Brown, 29 Barb. 338; Buffalo, etc., R. R. Co. v. Clark, id. 338; Supervisors v.Wisconsin, etc., R. R. Co., 121 Mass. 472; Western R. R. Co. v. Babcock 6 Metc. 346, 354; Lawson v. Milwaukee, etc., R. R. Co., 30 Wis. 597.) The contract in question was one which the defendants were fully empowered by law to make. (Laws of 1850, chap. 140, §§ 23, 28, subd. 10; Laws of 1857, chap. 444, § 1; Laws of 1873, chap. 469, § 1; Laws of 1873, chap. 710, § 1; Farmers' Loan & T. Co. v. Curtis, 3 Seld. 466; Moss v. McCullough, 7 Barb. 279 ; Vose v. Cowdrey, 49 N. Y. 336; N. Y. S. L. & T. Co. v. Helmer, 77 id. 64; Whitney Arms Co. v. Benton, 63 id. 62; Woodruff v. Erie R. Co., 93 id. 608; Railway Co. v. McCarthy, 96 id. 267 ; Thompson v. Lambert, 44 Iowa, 236; Hurd v. Green, 17 Hun, 327, 344, 345 ; Rome Savings Bk. v. Kramer, 32 id. 270, 275, 276; Barry v. Merchants' Ex. Co., 1 Sand-f. Ch. 280, 289; Curtis v. Leavitt, 15 N. Y. 962; LeGrand v. M. M. Ass., 80 id. 638.) The action is properly brought for a specific performance of the contract set forth in the complaint. (Stuyvesant v. Mayor, etc., 11 Paige, 414, 426-7; Matins v. Brown, 4 Comst. 403 ; White v. Schuyler, 31 How. Pr. 38 ; Cushman v. Thayer & Co., 71 N. Y. 365; Johnson v. Brooks, 93 id. 337.) The referee’s deed to Munson, and his to the defendant company conveyed all the property, rights of way, franchises and inter-. ests which were provided for by the contract. (Riggs v. Purcell, 66 N. Y. 193; White v. Secor, 25 Barb. 235 ; Thompkins v. Hyatt, 28 N. Y. 347.) The rule that a purchaser on for-closure sale may require a perfect title has no application to a case where he purchases only a limited interest and that is apparent either from the mortgage or otherwise. (Brown v. Haff, 5 Paige, 235, 245; Mills v. Van Voorhes, 23 Barb. 125; Bates v. Delavan, 5 Paige, 299, 306-7 ; Winne v. Reynolds, 6 id. 407, 414; Boyd v. Schlissinger, 59 N. Y. 301, 308; Riggs v. Purcell, 66 id. 193, 198-9.) A railroad mortgage executed at the inception of the undertaking, or to procure funds for the construction of the road, is intended only to cover titles and rights; as they are procured they become subject to the mortgage. (Seymours v. C. & N. F. R. R. Co., 25 Barb. 284; Stevens v. Watson, 4 Abb. Ct. App. Dec. 302; Hulett v. Whipple, 58 Barb. 224; Dwight v. Newell, 3 N. Y. 185 ; Benjamin v. Elmira, etc., R. R. Co., 46 Barb. 411; Shaw v. Bill, 95 U. S. 10, 15,16.) The plaintiffs’ right of action did not depend upon their ability at all times to perform, unless at least the defendants were ready. In actions for specific performance of contracts for purchase of land it is often sufficient if vendor is able to make title at the time of the decree. The tender of a deed is not a condition precedent. (Welles v. Smith, 7 Paige, 22; Pierce v. Nichols, 1 id. 244; Brown v. Haff, 5 id. 235; Dutch Church v. Mott, 7 id. 77; Viele v. T. & B. R. R. Co., 21 Barb. 381; affirmed, 20 N. Y. 184.) The defendants can take no advantage of plaintiffs’ delay unless they have shown themselves ready, (Mech. Bk. v. Thomson, 53 N. Y. 7, 12, 13 ; Laird v. Smith, 44 id. 618; Stevenson v. Maxwell, 2 Comst. 408 ; Fare Campen v. Knight, 63 Barb. 205 ; Hubbell v. Van Schonig, 49 N. Y. 326, 331; Adams’ Eq. 88; Leslie v. Ins. Co., 63 id. 33; Meyer v. Ins. Co., 73 id. 516; Wiswell v. McGowan, 1 Hoff. Ch. 125, 139; Fry on Spec. Perf. 308 [Am. ed. 409] ; id., § 745, p. 324 [428]; id., § 746; Lowman v. Dale, 3 Johns. Ch. 23; McKay v.. Carrington, 1 McLean, 50; More v. Smedburg, 8 Paige, 600, 607.) If the defendants intended to repudiate their contract on the ground of delay, they ought so to have advised plaintiffs before the foreclosure sale, so that they need not to have been at the expense of the purchase. (Dougrey v. Topping, 4 Paige, 94.) To constitute a novation of the contract which would have the effect of releasing Magee, there must have been an express agreement of plaintiffs to accept the new obligation in satisfaction of the old. (Domat’s Civ. Law, 914, §§ 2304, 2306 ; 1 Pars, on Oont. 180; Bonvier’s Law Diet. 231, Novations; Auburn C. Bk. v. Hunsiker, 72 N. Y. 252, 257.) The defense of ultra vires, offense against public policy, and incapacity of Munson to contract are not available to Ma-gee. (Kirschman v. Lediard, 61 Barb. 573.) In the absence of proof of any agreement of plaintiffs to release Magee, the presumption is that his liability continued. (Meridan Brit. Co. v. Zugler, 48 N. Y. 247.) As in the common case of the agreement of the purchaser of property to pay a debt of the vendor as the consideration of the purchase, the original debtor is not discharged unless by the express agreement of the creditor upon sufficient consideration. (Noel v. Murray, 3 Kern. 167; 1 Pars, on Cout. 187; Thorp v. K. Coal Co., 48 N. 7. 253; Bentley v. Vanderhuysen, 35 id. 677 ; Calvo v. Davis, 73 id. 211.) The bonds of the defendant company having been issued and delivered to Magee, being in his hands with notice, are chargeable with the equities of plaintiffs. (Story’s Eq. Jur., §§ 783,784,788,789; id., § 333; id., §§ 422,423,424; Sacia v. Rutherford, 17 Barb. 15 ; Colt v. Lanier, 9 Cow. 320.) Mun-son, although director and president, as well as the other plaintiffs, might become a holder of the bonds of the company, and might enforce them against the property of the company for their full amount. (Duncomb v. N. Y., H. & N. R. R. Co., 88 N. Y. 1.) Being such holder and owner of bonds secured by mortgage of the company, of which he is a director, he can take measures to and procure the foreclosure of such mortgage, the same as any other bondholder. (Harpending v. Mun-son, 91 N. 7. 650; Marie v. Garrison, 83 id. 14; 61 How. Pr. 93; Laws of 1857, chap. 144, § 1; Laws of 1873, chap. 469, § 1; Laws of 1873, chap. 710, § 1.) The plaintiffs, who together owned a large number of shares, had a right to enter into any arrangement for the protection of their interests not prohibited by law. (Marsh v. Russell, 66 N. Y„ 288; Phippen v. Stickney, 3 Metc. 384; Wicker v. Hoppock, 6 Wall. 94; Marie v. Garrison, 83 N. Y. 14, 29, 30.) Where the contract does not so appear upon its face to be against public policy it must be alleged and proved that it was. (Harris v. Tumbridge, 83 N. Y. 99; People v. Stephens, 71 id. 527; Dick v. Cooper, 24 Penn. 217; Galton v. Enniss, 1 Collyer, 243; In re Carew’s Estate, 26 Beav. 187 ; Phippen v. Stickney, 3 Metc. 384; Jones v. North, L. It., 19 Eq. Cas. 426; Kerr on Frauds, 224.) This is not a case of improper interference with competition at judicial sales. (Hollis v. Drew Theological Seminary, 95 N. Y. 171, 172; Wood-ruff v. Erie R. Co., 93 id. 615, 616.) The law will not presume a contract illegal or against public policy and so void, when-it is capable of a construction which will make it lawful and valid. (Ormes v. Dauehy, 82 N. Y. 443; Honeger v. Wettstein, 94 id. 260.) A corporation cannot avail itself of the defense of ultra vires where the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the contract. ( Woodruff v. Erie R. Co., 93 N. Y. 619.) The assumption by the company of Magee’s contract to “ deliver or cause to be delivered to the ” plaintiff the first mortgage bonds in question did not release Magee. (Cummg v. Hill, 5 Barn. & Aid. 60; Davidson v„ Westchester Gas Co., 99 N. Y. 568; Auburn City Bk. v. Hunsiker, 72 id. 257.)

      George F. Comstock for respondents.
    The original agreement being that one of the parties should not bid against the other at a judicial sale, and should have the property after being bid in by the other, on the terms which they thought were for theii mutual interest, the law will not enforce it. (Howell v. Mills, 53 N. Y. 322; Atchison v. Mallon, 43 id. 147; Brackett v. Wyman, 48 id. 667; Meech v. Bennett, Lalor’s Sup. 191; Jones v. Caswell, 3 Johns. Ch. 29; Doolin v. Ward, 6 id. 194; Wilbor v. Grow, 8 id. 346; Thompson v. Davies, 13 id. 112; Hawley v. Cramer, 4 Cow. 717; Wheeler v. Wheeler, 5 Lans. 355; Bliss v. Matteson, 45 N. Y. 22.) The laws confer no power to purchase, without definite surveys and location, the line of an unconstructed railway of another railroad corporation; and the policy of those laws condemn all contracts which locate the termini or route of the railway until the proper surveys are made. (Dix v. Shaver, 14 Hun, 392; Turnpike Co. v. North, 1 Hill, 318; Plankroad Co. v. Snediker, 18 Barb. 317; Railroad Co. v.Miller, 15 N. Y. 583.) This contract, by preventing bidding and competition at said mortgage sale, was against public policy, and illegal and void. (Atchison v. Mallon, 43 N. Y. 147; Brackett v. Wyman, 48 id. 667; Doolin v. Ward, 6 Johns. 194; Slingluff v. Eckel, 24 Penn. St. 472 ; Gardner v. Morse, 25 Me. 140; Hawley v. Gramer, 4 Cow. 717; Wheeler v. Wheeler, 5 Lans. 355 ; Gray v. Hook, 4 N. Y. 449 ; Meech v. Bennett, Lalor’s Sup. 191; People v. Lord, 6 Hun, 390; Troup v. Wood, 4 Johns. Ch. 254.) Munson, as director and president of the Syracuse, Geneva and Corning Railway Company, could not purchase for it the property which he sold as trustee of the Sodus Bay, etc., Railroad Company. (Aberdeen R. Co. v. Blaikie Bro's, 2 Eq. Rep. 1281; S. O., 2 McQueen, 461; Flanigan v. Great Western R. Co., L. R., 7 Eq. 116; Pomeroy on Cont., § 285; Waterman on Spec. Perf. of Cont., § 218; Mint & Pere Marquette R. Co. v. Dewey, 14 Mich. 477; Thomas, Trustee, v. Brownville, Ft. K. & P. R. R. Co., 2 Fed. Rep. 877; Barnes v. Brown, 11 Hun, 315, 319; Fremont v. Stone, 42 Barb. 169 ; N. 7. G. Lns. Co. v. Nat. Pro. Ins. Co., 14 N. Y. 85; Fish v. Leser, 69 I11. 394; Terwilliger v. Brown, 59 Barb. 9; affirmed, 44 N. Y. 237, marginal note; Torrey v. Bk. of Orleans, 9 Paige, 650; Greenwood v. Spring, 54 Barb. 375.) Munson, while director and president of both companies, could not make said contract securing to himself a preference or greater advantage than other creditors. (Bliss v. Matteson, 45 N. Y. 22; Van Epps v. Van Epps, 9 Paige, 238.) He could not sell the Sodus Bay, etc., Company road out and termínate its existence, and form' a new company. (Abbott v. American Hard Rubber Co., 33 Barb. 578.) Neither could Munson, as director and president of the Syracuse, Geneva and Corning Railway Company, tack on to it the worthless remains of another railroad company, or bind said Syracuse, Geneva and Corning Railway Company to issue its bonds therefor. (Frothingham, Adm'r, etc., v. Burney, 6 Hun, 366; H. & N. H. R. R. Co. v. Croswell, 5 Hill, 383 ; Prest, of Un. Bridge Co. v. T. & L. R. R. Co., 7 Lans. 240; Bissell v. M. S. & N. Ind. R. R. Co., 22 N.Y. 258; Winch v. B. L. & C. J. R. R. Co., 13 Eng. L. & Eq. 506.) Munson’s relations as director and president of the Sodus Bay, etc., Company were such as not only to make his contract to acquire and convey the absolute title to all its property at least voidable, but also such as to render his alleged title of very doubtful validity. (Colburn v. Morton, 3 Keyes, 296; Gardner v. Ogden, 22 N. Y. 327.) The part of said contract — the procuring title to and conveyance of the entire property in question — was a condition precedent to defendants giving their mortgage bonds therefor. (Grant v. Johnson, 5 N. Y. [1 Seld.] 247, 254; Jones v. Gardner, 10 Johns. 265; Green v. Reynolds, 2 id. 207.) Where parties, as the defendants in this case, contract for a specified property, courts will not compel them to accept worthless parts thereof nor entirely different property, and pay a large price therefor. (Seymour v. Delancy, 6 Johns. Ch. 222; Hopk. Ch. 436 ; Gebert v. Peterlu, 38 N. Y. 165; Hinckley v. Smith, 51 id. 21; Pomeroy on Cont. 421, § 347; Story’s Eq. Jur., §§ 749, 750, 778; Fry on Spec. Perf. of Cont. 347, marg. p. 253 ; Richmond v. Gray, 3 Allen [Mass.], 25 ; Pyrke v. Waddingham, 17 Eng. L. & Eq. 534; Nicol v. Carr, 35 Penn. St. 381; Starms v. Allison, 2 Head [Tenn.], 221; Speakman v. Forepaugh, 44 Penn. St. 363; Dobbs v. Nor-cross, 24 N. J. Eq. 327; Griffin v. Cunningham, 19 Gratt. [Va.] 571; Wilson v. Brumfield, 8 Blatchf. [Ind.] 146; Jordan v. Fay, 40 Me. 130; King v. Knapp, 59 N. Y. 462; Post v. Weil, 8 Hun, 418; B’kyn Pk. Commrs v. Armstrong, 45 N. Y. 234; Haight v. Child, 34 Barb. 186;
      Bensel v. Gray, 80 N. Y. 517; Delavan v. Duncan, 49 id. 485; Hellreigel v. Manning, 97 id. 56, 60; Post v. Bernheimer, 31 Hun, 247, 253 ; Belknap v. Sealey, 14 N. Y. 144.) The inadequacy of the consideration in this case, that is, the difference between the real value of the property which was conveyed by the deed, and the value of defendants’ bonds which plaintiffs ask to have adjudged to them herein, is so great as to render the contract sued on a hard and unconscionable one, and one, therefore, which a court of equity will not specifically enforce, as such enforcement would produce injustice. (McCarthy v. Kyle, 4 Cald. [Tenn.] 348, 355, 356 ; Morgraff v. Muir, 57 N. Y. 155 ; Stanton v. Miller, 58 id. 192, 200; Shriver v. Leiss, 49 Md. 384; Waterman on Spec. Perf. of Cont., § 169 ; Williston v. Williston, 41 Barb. 635, 642 ; Seymour v. DeLancy, 3 Cow. 445 ; 25 N. Y. 202 ; Willard’s Eq. 268; Smith v. Wood, 12 Wis. 383; Oil Creek R. R. Co. v. Atlantic R. R. Co., 51 Penn. St. 65,72; Backus’ Appeal, 58 id. 187; Mississippi R. R. Co. v. Cromwell, 91 U. S. 643 ; Osgood v. Franklyn, 2 Johns. Ch. 1,23 ; 2 Kent’s Com. 487, and note d; Lloyd v. Wheatley, 2 Jones’ Eq. [N. C.] 267; Fish v. Leser, 69 111. 394; Plummer v. Kippler, 26 N. J. Eq. 481,482.) The court, in the way of specifically enforcing said contract in question, could or would merely and fully carry out the intention of the parties to it. (Story’s Eq. Jm\, § 791; 1 U. S. 600, § 3; [or 2 UI. S., Banks & Bros’. 6th ed., § 3] ; In re Rens. & Sar. R. R. Co. v. Davis, 43 N. Y. 137; N. Y. & H. R. R. Co. v. Kip, 46 id. 546 ; Laws of 1869, vol. 2, chap. 917, § 9; Pomeroy on Cont. [Spec. Perf.], §§ 327, 163 ; Woodward v. Harris, 2 Barb. 440.) The several agreements signed by the same parties throughout formed one entire contract and are to be construed together. (2 Pars, on Cont. 503; Hull v. Lauderdale, 46 N. Y. 70, 75; Whitford v. Laidler, 64 id. 145.)
   Andrews, J.

We think it would be difficult to affirm the judgment of the court below, dismissing the complaint, if in order to do so it was necessary to uphold the proposition that the original contract of August 13,1875, between the plaintiffs and Magee, was invalid either because Munson, one of the .plaintiffs, was at the time of entering into the contract, a director of the Sodus Bay and Corning Railroad Company, or for the reason that the contract violated the rule which prohibits combinations to prevent competition at a judicial or other public sale. The situation was briefly this. The Sodus Bay and Corning Railroad Company was organized in 1871, to construct and operate a railroad from Corning, in the county of Steuben, to Sodus Bay in the county of Wayne, a distance of about eighty-six miles, passing through the counties of Schuyler, Yates and Ontario, by way of Savona, Penn Yan and Geneva. Of this road the plaintiff Munson was president and a director. In 1872, the corporation created a mortgage on its projected road, its franchises and property for $1,500,000, to secure a contemplated issue of bonds to that amount, to be used in the construction of the road. It proceeded to secure rights of way over a portion of its line, graded about thirty miles of its track between Savona and Geneva, and expended in the aggregate in securing titles and in the prosecution of the work, the sum of $250,000. It issued bonds under the mortgage, to the amount of $257,000, from the proceeds of which the expenditures were made. At the date of the contract between the plaintiffs and Magee, August 13, 1875, the plaintiffs held and controlled of these bonds, $241,000 in amount, the remaining $16,000 being in the hands of a former treasurer of the company, whose title thereto seems to have been disputed, but who subsequently received a dividend thereon from the proceeds of the mortgage sale. The title of the plaintiffs to the $241,000 of bonds, was not questioned, and there is no suggestion that they were not bona fide holders for value, or that the bonds did not represent a valid debt against the company for their full amount. In January, 1874, the company became insolvent. It defaulted in the payment of the interest on its bonds at that date, and in the spring of 1875, all operations on the road were suspended, and the further prosecution of the enterprise was practically abandoned. In short when the contract of August 13, 1875, was made the company was hopelessly bankrupt, the work had stopped, the interest on its bonds had been unpaid for eighteen months, and practically its whole property consisted of disconnected rights of way over a portion of its route, and a road-bed partially graded between Savona and Geneva, and whatever property it had of any value was acquired through the means furnished by the holders of the bonds. Under these circumstances the parties entered into the contract of August 13, 1875. It recites that the plaintiffs own and represent $241,000 of the bonds of the Sodus Bay and Corning Bailroad Company, and that Magee, the other party to the contract, represents the persons and interests proposing to organize another railroad company for the construction of a railroad from the vicinity of Corning to Geneva. The parties of the first part (the plaintiffs) agree to proceed at once to secure the foreclosure of the mortgage, and to purchase on the foreclosure sale, the property, rights of way, franchises and interests covered thereby, and convey the same to Magee or to the railroad company proposed to be organized. Magee, the other party to the contract, agrees to deliver or cause to be delivered, to Munson and his associates in payment for the said property, rights of way and franchises, first mortgage bonds of the proposed railway company, to the amount of fifty per cent of the principal and interest, of- the bonds of the Sodus Bay and Corning Bailroad Company, held by them. The contract contains other stipulations not now necessary to mention. In the view we take of another question in the case, we deem it unnecessary to determine whether the contract of August 13, 1875, was valid as between the original parties thereto, that is, whether the plaintiff Munson, in entering into the contract, violated any duty owing by him to the corporation of which he was a director, or whether the contract as a whole, was, on the part of Munson and his associates, any thing more than a legitimate arrangement to protect their interests as bondholders, and to make the mortgage security available for the payment of a part of the mortgage debt. The contract was not by or with the Sodus Bay and Corning Bailroad Company, and assuming that the question as to the validity of the original contract can he raised in this action, we are not prepared, without further consideration, to condemn the transaction on either of the grounds suggested. (Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y. 190; Marie v. Garrison, 83 id. 14; Harpending v. Munson, 91 id. 650.)

But this action is not brought to enforce the contract August 13,1875, against the defendant Magee. It is an action to compel the specific performance by the defendant corporation, of the undertaking of Magee in that contract, to deliver the bonds of the new company as therein provided, founded upon the assumption by the new company of that obligation, by resolution of its board of directors, passed August 13,1875, and also upon the subsequent contract of September 14, 1875, made between the company and the plaintiffs, which in its primary provision substituted the company in the place of Magee as the party of the second part in the contract of August 13, 1875. The action in its entire scope is framed to enforce the obligation of the defendant corporation, under its contract of assumption. It was tried upon this theory, the exceptions point to this as the ground of the action, and Magee is joined as defendant and in the demand of relief, as the custodian of bonds of the company which the plaintiffs claimed he should be adjudged to deliver to them, by the judgment in the action. Throughout the trial the action was treated, as an action again'st the defendant corporation upon its contract, and in no respect as an action against Magee, to enforce a liability against him under the contract of August 13, 1875. The plaintiffs therefore are compelled to meet the question, whether upon principles of equity they are entitled to the-aid of the court to enforce an executory contract between themselves on the one side, and the defendant corporation on the other, for the sale of the property of the former, and in a case where one of the plaintiffs at the time the contract was made, was a director of the purchasing corporation and took part in making the contract upon which the action is brought. For a proper understanding of the situation, a few additional facts need to be stated. On the 26th of August, 1875, Magee and his associates organized a railroad company, to construct a railroad from Corning to Geneva, as contemplated by the contract of August 13, 1875. The plaintiff Munson was one of the promoters and became a director and stockholder, and was the first president of the corporation. On the 31st of August, 1875, Magee executed a written assignment to the new corporation, The Syracuse, Geneva and Corning Railway Company, of his rights under the contract with the plaintiffs of August 13, 1875, and the board of directors at a meeting on the same day, in which the plaintiff Munson participated, passed a resolution assuming the contract on the part of Magee, and agreeing to perform it, except in one particular not now material to be mentioned. On the 14th of September, 1875, the contract before referred to of that date, was entered into between the plaintiffs and the new corporation, and was executed individually by each of the plaintiffs, and on the part of the corporation, by the plaintiff Munson, as president. The proceedings of the board of directors indicate that when the resolution of August 31, 1875, was passed, and for two or three months thereafter, the company contemplated building its road to Geneva on the same line substantially as that of the Sodus Bay and Corning Railroad Company, but in December, 1875, it located an entirely new line, not coincident in any part with the line originally contemplated, upon which new fine its road was subsequently built. It is found, and the evidence supports the finding, that the best interests of the company were promoted by adopting its present route. The plaintiffs procured a foreclosure of the mortgage and purchased the property, as they had agreed, and subsequently, in 1877, tendered a deed thereof to the defendant corporation, and demanded the delivery of the bonds, which was refused.

In determining the legal question presented, it is proper to say that there is no evidence of any actual fraud or collusion on the part of any of the parties to the original contract of August 13, 1875, or that the contract of assumption was induced by any improper appliances or motives whatever. It is plain' that Magee and his associates, when they entered into the original contract, contemplated building the proposed road on the line of the Sodus Bay and Corning Railroad Company, and that the contract was made with a view of acquiring for the new road, the rights of way and other property of that corporation. It is equally plain that the contract of assumption was entered into by the new corporation with the same expectation and for the same purpose. If the contract was otherwise unobjectionable, it could not, we think, be assailed on the ground that it was a contract outside of the power of the defendant corporation. The statute authorizes a railroad corporation to acquire land for its track and other necessary purposes, by voluntary purchase or by condemnation (Laws of 1850, chap. 140, §§ 14,15), and an agreement made on the purchase of rights of way, to pay therefor in bonds of the purchasing corporation, secured by a mortgage on its property, is clearly we think within the implied, if not within the express powers of a railroad corporation. (§ 28, subd. 10.) The contract made between the defendant corporation and the plaintiffs, was in substance a contract to purchase rights of way, and although the defendants’ line was not formally located on the line proposed to be purchased, and was in fact subsequently located on a different line, this change of purpose did not, we think,, affect the question of corporate power.

But we are of opinion that the contract of September 14, 1875, is repugnant to the great rule of law which invalidates all contracts made by a trustee or fiduciary, in which he is personally interested, at the election of the party he represents. There is no controversy as to the facts bringing the case as to Munson within the operation of the rule. He and his associates were dealing with a corporation in which Munson was a director, in a matter where the interests of the contracting parties were or might be in conflict. The contract bound the corporation to purchase, and Munson, as one of the direct- ' ors, participated in the action of the corporation in assuming \ the obligation, and in binding itself to pay the price primarily agreed upon between the plaintiffs and Magee. He stood in the attitude of selling as owner and purchasing as trustee. The law permits no one to act in such inconsistent relations. It does not stop to inquire whether the contract or transaction was fair or unfair. It stops the inquiry when the relation is disclosed, and sets aside the transaction or refuses to enforce it, at the instance of the party whom the fiduciary undertook to represent, without undertaking to deal with the question of abstract justice in the particular case. It prevents frauds by making them as far as may be impossible, knowing that real motives often elude the most searching inquiry, and it leaves neither to judge nor jury the right to determine upon a consideration of its advantages or disadvantages, whether a contract made under such circumstances shall stand or fall. It can make no difference in the application of the rule in this case, that Munson’s associates were not themselves disabled from'contracting with the corporation, or that Munson was only one of ten directors who voted in favor of the contract. The contract on its face, notified Munson’s associates of his relation to the corporation, and that the contract was subject to be defeated on that ground, and on the other hand a corporation in order to defeat a contract entered into by directors, in which one or more of them had a private interest, is not bound to show that the influence of the director or directors having the private interest, determined the action of the board. The law cannot accurately measure the influence of a trustee with his associates, nor will it enter into the inquiry, in an action by the trustee in his private capacity, to enforce the contract in the maldng of which he participated. The value of the rule of equity, to which we have adverted, lies to a great extent in its stubbornness and inflexibility. Its rigidity gives it one of its chief uses as a preventive or discouraging influence, because it weakens the temptation to dishonesty or unfair dealing on the part of trustees, by vitiating, without attempt at discrimination, all transactions in which they assume the dual character of principal and representative.

The rule has been declared and enforced in a great variety of cases, but in none perhaps with more vigor and completeness, both upon principle and authority, than in the leading case of Davoue v. Fanning (2 Johns. Ch. 251, 252). But the case of Aberdeen Railway Company v. Blakie and others (2 Eq. 1281), decided by the House of Lords, is in many of its features similar to the present one. In that case it appeared that the plaintiffs were a 'manufacturing firm, and that one of them was also a manager of the Aberdeen Railway Company, the defendant, and the chairman of the board. At a meeting of the managers, they by resolution authorized their engineer to contract for iron chairs needed by the company. The agent contracted with the plaintiffs’ firm. It did not appear that the member of the firm, who was also a manager and the chairman of the company, intermeddled with the dealing on either side, further than that it may be assumed he was at the meeting which authorized the engineer to procure a supply of chairs. The plaintiffs brought them suit to enforce specifically the performance of the contract, or in the alternative to recover damages for its non-performance. After a decision in their favor in the lower court, the company appealed to the House of Lords, where the ruling was unanimously reversed on the ground that the contract was condemned by the rules of equity, as having been made between the company of which one of the plaintiffs was a manager, and a private firm of which he was a member. The opinions of Lord Chancellor Cranworth and of Lord Brougham vindicate upon impregnable grounds the general rule and its application to the particular case.

We have designedly omitted up to this time, special reference to a circumstance which it is claimed takes the case out of the operation of the general equitable rule. That is, that the contract with the defendant corporation, was not on the part of the plaintiffs a fresh dealing in respect to the sale of their interest in the property of the Sodus Bay and Corning Railroad Company, but was simply a substitution in the place of Magee, of the corporation organized by him and his associates, for the purpose of carrying out the original arrangement. But the promoters of a corporation are not the corporation. The legal body is distinct from the individuals who compose it. The statute confers no authority upon the promoters of a corporation to enter into preliminary contracts binding the corporation when it shall come into existence. Such contracts may bind the individuals who make them. If adopted by the corporation, and they are within the corporate powers, and are not otherwise subject to objection, they'may become the contracts of the corporation and enforceable as such. In respect to contracts of promoters Judge Redfield says: “ The promoters are in no sense identical with the corporation, nor do they represent it in any relation of agency, and their contracts could, of course, only bind the company so far, as they should be subsequently adopted by it, as their successors.” (1 Redf. on Railways, 9.) But the corporation is at liberty to refuse to sanction them, and if its sanction is obtained by the act or co-operatian of directors who have a private interest, we perceive no reason why, under the general rule, the corporation may not i;esist an action for specific performance, at least in a case where it has not accepted the consideration and taken the benefit.

It is claimed that the general policy of the law in this State sanctions the contract in question, and we are referred to chapter 710, Laws of 1873, which authorizes the purchaser, or the grantee of the purchaser of the real estate, tracks and fixtures of a railroad corporation sold under a mortgage or decree, to associate with him other persons and form a new corporation to maintain and operate the road. But the transaction in question was not in any proper sense an arrangement for the reorganization of an existing railroad. It was not contemplated that the new corporation should operate or maintain the road of the old corporation. The line of the new corporation, by its articles, extended only from Corning to Geneva, whereas the route of the old corporation was from Corning to Sodus Bay. When the contract was made, the enterprise of building the Sodus Bay and Corning road had been commenced, but the road had not been built. Its route had only in part been located, and the great burden and expense of the undertaking was yet to be incurred. The case is not in terms within the act of 1873, nor as we think within its spirit and intent.

These views lead to an .affirmance of the judgment.

All concur, except Rapallo and Finch, JJ., not voting. Judgment affirmed.


author: Danforth, J.

text:
    Urial Driggs, Appellant, v. John H. Phillips et al., Respondents.
    A highway once established does not cease to be such until it has been discontinued by the proper authorities.
    The occupation of a portion of a highway by an individual is a mere obstruction and nuisance for which no lapse of time will enable him to prescribe, and no “acquiescence on the part of the highway officials of the town will deprive the public of the right to use the whole highway, or in any degree lessen the duty of such officials to remove the obstruction when that removal is necessary.
    Accordingly held, that continuous occupation for a period of twenty years of a portion of a highway did not give the occupant title, and would not sustain an action of trespass against the supervisor and highway commissioners of the town for entering upon and removing a building from the portion of the highway so occupied.
    A dedication by the owner of land as a highway, and acceptance by the public through user, constitutes it a highway, although no record be made of it as such.
    (Argued May 31, 1886;
    decided October 5,1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1883, .which affirmed a judgment in favor of defendants, entered upon a verdict.
    The nature of the action and the material facts are stated in the opinion.
    E. B. Vedder for appellant.
    The undisputed facts show title in plaintiff under written contract of Williams. (Jackson v. Leann, 3 Johns. Cas. 124.) And also by adverse possession. (Code of Civ. Pro., § 369; 2 E. S. [2d ed.] 222, § 9; id., §§ 370, 10; 372, 12 ; 3 R. S. [2d ed.] 669; Finley v. Cook, 54 Barb. 9 ; Smith v. Lorillard, 10 Johns. 338 ; Smith v. Denn, 5 Cow. 200: McLaren v. Morphy, 19 U. C. Q. B. 609; Whitney v. Wright, 15 Wend. 171, 177-8 ; Clute v. Voris, 31 Barb. 511.) The statute makes substantial inclosure possession. (Code of Civ. Pro., §§ 370, 372; Code of Pro., §§ 83, 85.) Highways and streets are themselves inclosures; the line between a highway or street and the private land which is bounded by it is in effect a line of inclosure. (Jackson v. Halstead, 5 Cow. 216, 220; Baker v. Van Valkenburgh, 29 Barb. 334.) An interruption in actual occupancy of premises without any abandonment of, or intention to abandon possession, and with the animus revertendi, and where no other hostile possession has come, in before resumption of actual occupancy, does not break up the continuity of possession, especially where the interruption was caused by accident. (Dama v. Valentine, 5 Metc. 8, 13-4; Webb v. Richardson, 42 Vt. 465 ; Thompson v. Raufelt, 1 Cent. Law Rep’r, 198.)

      Daniel H. McMillan for respondents.
    Any obstruction to a highway is a nuisance. (Harlow v. Hutchinson, 6 Cow. 189; Lansing v. Smith, 8 id. 146; Dygert v. Schenck, 23 Wend. 446 ; 14 N. Y. 506 ; 1 Duer, 451; Peckham v. Henderson, 27 Barb. 207.) The commissioners of highways had a right to ascertain the boundaries of the road, and the summary right to remove the building when ascertained to be in the road. (Talmage v. Hunting, 29 N. Y. 447; McFadden v. Kingsbury, 11 Wend. 667; Anderson v. Van Tassel, 53 N. Y. 631; Cook v. Harris, 61 id. 448.)
   Danforth, J.

The action was brought to recover damages for an alleged trespass by the defendants upon land of which the plaintiff claimed possession and ownership. At the trial it appeared that the premises were part of a large tract of land, which, in 1827, was granted by the State to Burrows, Williams and others, who in 1828, made a partition of the same, and described the various • parcels as bounded in part by certain streets and highways, and among others “by the highway formed by the continuation of the military road,” referring also to a map of the village of Tonawanda, made by Colton Fletcher in 1825 ; and one of the covenants into which the parties to the partition entered was that all the streets named in the deed as bounding any part of the premises “ shall be continued as public streets according to the plan of them in the before-mentioned map.” The plaintiff and one Mansfield bought of Williams a portion of this land, and in 1829 or 1830 took from him a contract, which was not produced, but the plaintiff testified that Mansfield subsequently quit-claimed to him the same premises, and his deed shows a grant “ of lots 1 and 6 in block 4 of the village of Tonawanda, as described in a made by Colton Fletcher, and filed in Erie county.” He also testified that “ the building, for tearing down which the action was brought, stood on the corner of Main and North Canal streets in the central part of the village of Tonawanda;” that the lot he claimed was “ lot 1,” and that Main street was formerly known as the military road. One of the defendants was the supervisor of the town of Tonawanda; the others were its highway commissioners. At the time of the alleged trespass they were lawfully engaged in constructing a bridge over the creek at the point where Main street intersected it. Hpon that street its approaches were to be constructed. In carrying out a necessary retaining wall, they came to an old foundation wall. It was in no way occupied, and so far as appeared no person was in possession. They deemed it within the lines of the street and made it fit for their purpose by coping stones, which brought it to the surface of the ground. The plan required an iron railing. Its completion was delayed a few days, and in the meantime, without the defendants’ knowledge, the plaintiff proceeded to erect a small frame building, placing one corner of its frame upon the coping. Before the house was finished, the defendants returned to put on the railing and to do so, necessarily pushed away the plaintiff’s structure. This was the trespass complained of, and the main question litigated was whether the building was within the lines of lot 1, or whether it projected into the street upon which it was conceded that lot abutted.

At the close of the case the plaintiff asked the trial court to hold as matter of law that no defense had been made out, and that the only question for the jury was as to the damages. The court declined to do so, saying : “ The question of the location of this line” (of lot 1) “is for the jury to determine.” Upon the evidence this was clearly so, nor is any point made upon this appeal to support the exception taken by the plaintiff to that ruling. The court; reviewing the whole evidence, charged the jury that if the plaintiff, in the erection of his building, kept within the lines of his lot, he was entitled to recover ; otherwise not. This was the simple and real issue in the case; it was fully tried, and fairly submitted to the jury in a manner, and in various forms so satisfactory that no exception was taken.

But another question was presented to the trial judge, and an exception to his ruling is now relied upon. The highway was not shown by any record, but, as we have seen, the plaintiff took his lot under a description bounding it upon the street; its existence was assumed by him throughout the trial, and in his request for instructions to be given to the jury, “ that the highway was limited to what the evidence showed had been actually used as such.”

“ Also, that the evidence failed to show that the building was an obstruction to the street or a nuisance; that if it did stand within the bounds of a street or highway, no right has been shown in defendants to remove it.

“By the Court.—-I hold the other way, and have so charged. (To this no exception was taken.)

“ He also asked the court to charge that the proof does not show any power in defendants over the street in question; that defendants had no power, as incidental to building the bridge, to remove plaintiff’s building, as obstructing the street or the approach to the bridge.

“ The court declined and plaintiff excepted.”

Other requests followed, containing a similar implication. Upon the same assumption, he asked the court in substance to charge “that if the jury find that plaintiff had continuous possession of the land occupied by the removed building for twenty years, under claim of title, the land belonged to him and he was entitled to recover.” And the court replied:

‘ ‘ That would be so, but the evidence does not show any such title unless there was a continuous possession for twenty years Plaintiff excepted to that qualification.” To the same effect the court, in commenting upon such a claim, had already charged the jury, saying: “The evidence, however, does not show that continuity of possession which would constitute what the law terms an adverse holding, so as to ripen into a title.”’ To this the plaintiff excepted, and the trial judge then said: 111 submit the case substantially upon the propositions suggested. If yon are satisfied that this wall of the bridge was placed upon what was actually a portion of this highway^ then the plaintiff is not entitled to recover without showing an uninterrupted possession for twenty years; while on the other hand, if it was placed on the plaintiff’s land, and his building did not extend over and beyond to the east of his land, so as to render this act necessary, then the plaintiff is entitled to recover.

“It all depends upon where the actual location of this line was, unless there has been a continuous possession of twenty years, and whether he went over it or whether he kept within it. If he went over it he had no right to complain; if he kept within it, then he had a right to indemnity.”

The propositions referred to are the pro¡3ositíons of the plaintiff, presented by the requests already made, and the charge left the jury to determine the question as to adverse and uninterrupted possession. It was the last utterance of the court, and was, no doubt, intended as a withdrawal of the positive opinion before expressed upon it. No request was made for a specific modification of the charge already given, and the General Term have regarded the final charge as an answer to the exception to the refusal of the court before made, to leave the matter of adverse possession to the jury.

We are unable to agree in this view of the case. If the instruction first given was erroneous and upon a material point, it cannot be said the jury were not influenced by it. It expressed a very strong opinion, more than once repeated, upon a matter finally left to the determination of the jury, and, in the Absence of an explicit withdrawal by the court, fairly permits the inference that it affected the verdict. The jury having heard from the judge that the evidence did not show that continuity of possession which would constitute what the law terms an adverse holding, so as to ripen into a title, could hardly be expected to come to a different conclusion upon the same evidence, but might readily concur in that reached by the judge, so long at least as it was permitted to remain a part of the instructions by which they were to be guided. The remark of the judge was more than a comment upon .evidence which he might make according to his discretion; it was a decision that there was no evidence to support the plaintiff’s contention. If that was error it was not cured by subsequently leaving the question to the jury as one which they also might determine. (Vedder v. Fellows, 20 N. Y. 126 ; Chapman v. Erie R. Co., 55 id. 579 ; Allis v. Leonard, 58 id. 288.) We are of opinion, however, that the instruction asked for was irrelevant to any question actually before the court. The issue was not between individuals, nór in relation to private property. It concerned the public and their rights in the highway. The defendants, at the time in question, were town officers, engaged in the performance of official duty, and if the acts complained of were performed upon premises which at any time, no matter how long before, had been set apart as a highway, and by dedication had become such, the plaintiff could not recover, although lie had occupied a particular portion of it from time to time, or even for a continuous period of time extending to twenty years. (Mills v. Hall, 9 Wend. 315; Kellogg v. Thompson, 66 N. Y. 88.) There was no non-user of the highway, and his occupation was a mere obstruction and nuisance for which no lapse of time would enable him to prescribe. Once established a highway does not cease to be such until it has been discontinued by the proper authorities. Of that in question it was conceded no record could be found, but the claim rested upon the dedication by the owner of the land and acceptance by the public through user. Upon this point the learned trial court, after calling attention to the facts and circumstances relating to it, said, “for the purpose of maintaining a highway of this description it is not necessary that the ground should be constantly or continually used, but that it should be used for the general purposes and convenience of the public as a portion of a public thoroughfare or highway,” and the verdict of the jury under other instructions, to which I before adverted, shows that this was done over that portion of the land now claimed by the plaintiff, and which contained the bous in quo. No exception was taken to this proposition and it must be considered settled that the line of the highway included the wall in dispute. The jurisdiction of the defendants in the performance of their duty extended over the whole width of the highway as established and each part of it. The plaintiff took his title subject to the easement, and no act of obstruction on his part could deprive them of their jurisdiction. (Bridges v. Wykoff, 67 N. Y. 130.) No acquiescence on their part in any act of the plaintiff could deprive the public of the right to use the whole highway, or in any degree lessen the duty of the defendants to remove obstructions, when that removal was necessary. (Cook v. Harris, 61 N. Y. 418.) In any view of the case the plaintiff had upon the trial every opportunity which the law affords to assert his title, and we think no error was committed by the learned trial judge to his prejudice.

The judgment appealed from should, therefore, be affirmed.

All concur.

Judgment affirmed.