author: Martin, J.:

text:
    JANE NELSON, Appellant, v. ISABELLA McDONALD and Others, Respondents.

      Two wills — each signed by mistake by the wrong party — ■equity caniwt give relief— action to reform a will in such a case cannot be maintained under section 1866 of the Code of Ginil Procedure — costs not awarded where the question is new.

    In an action brought to reform a will it appeared that a husband and wife intended to make wills, each in favor of the other, but that by mistake each signed and executed the will of the other.

      l-Ield, that the wills were null and void.

      ¡Semble, that such an action cannot be maintained, under such circumstances, under section 1866 of the Code of Civil Procedure, providing that the validity, construction or effect of a testamentary disposition of real property may be determined by action in like manner as the validity of a deed.
    That the action contemplated by that section is one directed only to the determination of the validity of a disposition in an existing will, and not to the validity of the will itself.

      The rule that where there is a valid will the courts in construing it, in order to carry out the testator’s intentions, may, in certain cases, transpose, change or supply words, where there is a misdescription of property, or an error in the name of a beneficiary, has no application to a case in which a will is signed by the wrong party.
    Where a question relating to the validity of a will is new, and the claim made by the plaintiff is manifestly in accordance with the intention of the 'testator, the court will not give costs against the plaintiff.
    Appeal by the plaintiff Jane Nelson from a judgment of the Supreme Court, entered in the office of the clerk of Onondaga county on the 17th day of March, 1891, with notice of an intention to bring up for review upon such appeal a judgment which dismissed the plaintiff’s complaint, with costs, after a trial at the Onondaga Special Term.
    In November, 1885, John and Jane Nelson, who were husband and wife, and who resided in the city of Syracuse, N„ Y., employed one Oowie to draw their wills, each giving all his or her property to the other. The wills were drawn at the house of the parties, and read to them. They were then laid upon the table for them to sign, and each signed one of the wills. Each was then asked if the paper signed by him or her, was his or her last will and testament. Each said it was, and then each asked the subscribing witnesses to sign the paper executed by him or her as such, which they did. The wills were then placed in an envelope, which was sealed until after the death of John Nelson, which occurred in the following year. After his death the envelope containing the wills was opened, and it was then for the first time discovered that each had signed the will intended for the other. The wills were as follows:
    “The last will and testament of Jane Nelson, of the city of Syracuse, county of Onondaga, and State of New York.
    “ I, Jane Nelson, being of sound mind and memory, aware of the uncertainty of life and the certainty of death, and desirous of making an equitable and proper disposition of my property at my decease, I do make, ordain, publish and declare this to be my last will and testament, in manner and form following, that is to say : After payment of all my lawful debts, I give, devise and bequeath all my estates, of every name and nature and wheresoever situated, both real and personal, to my beloved husband, John Nelson.

      “Likewise, I make, constitute and appoint my said husband, John Nelson, to be my executor of this my last will and testament, hereby revoking all former wills by me made.

      “ In witness whereof, I have hereunto subscribed my name and .affixed my seal, the eleventh day of November, in the year of our Lord, one thousand eight hundred and eighty-five.
    “ JOHN NELSON, [l. s.]
    “ The foregoing instrument was, at the date thereof, subscribed "by Jane Nelson, the testator therein named, in the presence of us and each of us. She, at the time of' making such subscription, acknowledged that she executed the same, and declared the said instrument so subscribed by her to be her last will and testament. Whereupon we, at her request, and in her presence, and in the presence of each other, .do hereby subscribe our names as witnesses thereto.
    “ William Cowie, residing. at Syracuse, W. Y.

    “James Hunter, residing at Danforth, N. YP

    “The last will and testament of John Nelson, of the city of Syracuse, county of Onondaga, and State of New York:
    “ I, John Nelson, being of sound mind and memory, aware of the uncertainty of life and the certainty of death, and desirous of making an equitable and proper disposition of my property at my decease, I do make, ordain, publish and declare this to be my last will and testament, in manner and form following,that is to say: Afterpayment of all my lawful debts, I give, devise and bequeath all my estate, of every name and nature and wheresoever situated, both real and personal, to my beloved wife, Jane Nelson. Likewise, 1 make, constitute and appoint my said wife, Jane Nelson, to be my executrix of this my last will and testament, hereby revoking all former wills by me made.
    “ In witness whereof I have hereunto subscribed my name and affixed my seal, the eleventh day of November, in the year of our Lord, one thousand eight hundred and eighty-five.
    “JANE NELSON, [i, s.]
    “ The foregoing instrument was at the date thereof subscribed by John Nelson, the testator therein named, in the presence of us and each of us. ITe, at the time of making such subscription, acknowledged that he executed the same, and declared the said instrument so subscribed by him to be his last will and testament. Whereupon we, at his request, and in our presence, and in the presence of each other, do here subscribe our names as witnesses thereto.
    “ William Cowie, residing at Syracuse, AT. Y.

    “James Hunter, residing at Dcmforth, AT. Y.”

    On the trial at Special Term the court held that neither of the papers set forth in the complaint was the last will and testament of John Nelson; that the plaintiff was not entitled to the relief demanded in the complaint, and the complaint was dismissed, with costs.

      E. 8. IFright, for the appellant.

      Alexander dc Green, for the respondents.
   Martin, J.:

The manifest purpose of this action was to correct the mistake of the decedent in signing the wrong will. In other words, it was to reform tbe will signed by him, by changing the provisions' therein so as to make them conform to the provisions contained in the will which he intended to sign.

The appellant contends that authority to maintain such an action is given by section 1866 of the Code of Civil Procedure, which provides: “ The validity, construction or effect, under the laws of the State, of a testamentary disposition of real property, situated within the State, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed, purporting to convey land may be determined.” * * *

This statute was under consideration in the case of Anderson v. Anderson (112 N. Y., 104), and it was there held that a devisee of a legal estate, in possession of the property devised, could not maintain an action to establish a will against the heirs-at-law; that courts of equity in this State have no inherent jurisdiction to entertain such an action, and it is not given by the provisions of the Code (§§ 1866, 1861), authorizing the determination “ in an action brought for that purpose ” of the questions as to “ the validity, construction or effect under the laws of this State of a testamentary disposition of real property,” and that these provisions refer, not to the validity of the will making the disposition, but simply to the validity of the disposition so made. In discussing the effect of this, statute Peckham, J., said : “ This language would seem to provide for the case of a devise contained in an instrument where due and proper execution is assumed, but which devise was to be adjudged good or bad as it should be determined that it was in accord with or-against the law upon the subject of such devise.” Under the doctrine of this case we regard it, at least, as very doubtful if this-action could be maintained.

If, however, we assume that the court had power to entertain s.uch an action, we then come to the question whether it was authorized to grant the relief sought. The plaintiff contends that the court had the power, and it was its duty, to have held that the well signed by the decedent might be changed or reformed, and to have reformed it so as to make it conform in all respects with the will which he intended to, but -through mistake failed to execute. The following authorities are cited as justifying this contention: Mellish v Mellish (4 Ves., Jun., 45); Phillipps v. Chamberlaine (id., 51); Door v. Geary (1 Ves., 255); Wood v. White (32 Me., 340); Thomas v. Stevens (4 Johns. Ch., 607); Connolly v. Pardon (1 Paige, 291); Ex parte Hornby (2 Bradf., 420); Smith v. Smith (1 Edward’s Ch., 189); Pocock v. Redinger (108 Ind., 573); Milner v. Milner (1 Ves., 107); Redfern v. Bryning (L. R., 6 Ch. Div., 133); Sweeting v. Prideaux (L. R., 2 Ch. Div., 413); Barber v. Wood (L. R., 4 Ch. Div., 885); Mellor v. Daintree (L. R., 33 Ch. Div., 198); Cloak v. Hammond (L. R., 34 Ch. Div., 255); Salt v. Pym (L. R., 28 Ch. Div., 153); In the Goods of Bushell (L. R., 13 Prob. Div., 7): Morrell v. Morrell (L. R., 7 Prob. Div., 68); Pond v. Bergh (10 Paige, 140); Lefevre v. Lefevre (59 N. Y., 434); Hiscocks v. Hiscocks (5 Mees. & W., 362); St. Luke's Home v. Association for Indigent Females (52 N. Y., 191); Trustees, etc., v. Colgrove (4 Hun, 362); Peters v. Porter (60 How. Pr., 422); Patch v. White (117 U. S., 210).

When the cases cited are examined it will be found that each case involved the question of the proper construction to be given to the particular will under consideration, and the most that can be claimed, as established by these cases, is that courts in construing wills may, to carry out the intent of the testator in certain cases, and under certain circumstances, transpose, supply or change the words of a will, and in case of a misdescription of property, or error in the name of a beneficiary, so construe the will as to carry out the manifest intent, of the testator. The question in such a case is not what the testator intended, as distinct from what his words express, but simply what was intended by the words used when construed in the light of the circumstances surrounding the testator and his property. (Wigram on Wills, 53.)

We find nothing in the cases cited, to sustain the doctrine that a court of equity has jurisdiction to reform a will, or to correct the mistakes of the testator, except upon the construction of a valid will made and executed by him, as and for his last will and testament. Pomeroy, in his work on Equity Jurisprudence (at page 349, volume 2), says • There is, of course, no power to reform wills.” (Citing Sherwood v. Sherwood, 45 Wis., 357.) In Schouler on Wills (§ 2-20), it is said : ££ It is not the province of a court of equity to reform a will which the statute requires to be executed with certain formalities.” (Citing Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Yates v. Cole, 1 Jones’ Eq., 110; Whitlock v. Wardlaw, 7 Rich., 453.) In 3 Redfield on the Law of Wills (page 49 § 16), it is said: “ It is not here attempted to reform the instrument (a will), so as to make it speak the real intentions of the testator. No court can do this.” (Citing Box v. Barrett, L. R., 3 Eq., 244.) In that case Lord Romilly said: “ Because the testator has made a mistake, you cannot afterwards remodel the will and make it that which you suppose he intended.” In Goode v. Goode (22 Mo., 518), it was held that-a court of equity has no jurisdiction to reform a will on the ground of the mistake of the draughtsman in drawing the same. Ryland, J., in delivering the opinion in that case, says: ££ Here the parties (plaintiff)seek to change a sentence or paragraph of the will of the testator, by adding the names of other legatees, so as to alter materially the bequests, indeed, seek to cut out one paragraph, in effect, and set up a new one. Admit this doctrine, and you may as well repeal the statute requiring wills to be in writing at once. Witnesses will then make wills and not testators.”

In Newburgh v. Newburgh (5 Mad. Ch., 364), the Earl of New-burgh, having estates in the counties of Sussex, Gloucester and elsewhere, gave instructions to his solicitor to prepare a will, which, inter alia, was to give to his wife, the Countess of Newburgh, an estate for life in his estates in the counties of Sussex and Gloucester. The solicitor prepared a will accordingly, and the same was afterward laid before an eminent conveyancer to settle. By some accident the word “ Gloucester ” was left out by the conveyancer, and the person who made the fair copy changed the word “ counties ” into county,” and the will, as copied, omitted, therefore, altogether the estate for life to the Countess Dowager in the county of “ Gloucester.”

At the time Lord Newburgh executed the will the solicitor who attended the execution had with him the abstract of the will as originally prepared, and the will was not itself read, but this abstract, which gave a life estate to Lady Newburgh as well in “ Gloucester ” as in “ Sussex,” and the testator executed the will, believing it followed the abstract. A bill was filed by the Countess Dowager to rectify the mistake, and that the trusts of the will be executed with such correction.

The vice-chancellor refused to correct the mistake, holding that the court could not set up the intention of the testator which, by mistake, he had been prevented from carrying into execution, as if he had actually executed that intention in the forms prescribed by the Statute of Frauds. To assume such a jurisdiction,” says the vice-chancellor, “ would, in effect, be to repeal the statute of frauds in all cases where a devisor failed to comply with the statute by mistake or accident, and to operate this repeal, by admitting parol evidence of the intention of the devisor, which it was the very object of the statute to avoid.” •

In this case the plaintiff and her husband each intended to make ■a will. They were alike, mútatis mutandis. By mistake, each signed the one prepared for the other. It is manifest that the decedent never intended to execute the will signed by him. None of the provisions contained in it expressed his intended disposition of his property. The will he intended to make was that signed by his wife. We are unable to perceive how it can be properly said that he executed his will. The evidence shows conclusively that he did not. It was bis wife’s will that lie executed. He intended to make a will, but by mistake tliat intent was frustrated. Suppose, instead of signing the will of his wife, he had, through a similar mistake, signed a deed or a blank piece of paper, is it possible that the court could when satisfied that he intended to make a will containing certain ascertained provisions, transform such deed or blank paper into the will he intended to make ? If not, how does this case differ ? In either case, the will he intended to make was not executed by him. If the court would be authorized to alter the paper he signed in this case, so as to make it the will that he intended, why might it not as well so change the deed as to make it his will, or write his will upon the blank paper signed by him ?

To avoid confusion we should keep in mind the fact that the question here is not what construction should be placed upon a paper executed by the decedent, and intended as his last will and testament. The fundamental error in this case was not in the employment in his will of language that was ambiguous, uncertain or which did not correctly express the decedent’s intention. It lies m the fact that the paper sought to be established as his will was never intended by him as such. His intention was to make another will which he had prepared but not executed. Therefore, the single question is whether the decedent left a will.

It was said by Earl, J., in Rollwagen v. Rollwagen (63 N. Y., 517.): “A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon tins question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and contains the will of the testator, probate must be refused. The laws in reference to the distribution of the estates of persons dying intestate are founded upon principles of public policy and justice, and must regulate the transmission of property unless a person before death has in the mode prescribed by law himself provided how his property after his death shall be disposed of. As said by Judge Davies, in Delafield v Parrish (25 N. Y., 9, 35): £ It is not the duty of the court to strain after probate, nor in any case to grant it where grave doubts remain unremoved and great difficulties oppose themselves to so doing.’ And this was substantially the language of Lord Brougham in Santon v. Williams (2 Curt., 530).”

Independent of the authorities which will be presently considered, we think the decedent died intestate, and the court below was right in holding that the plaintiff was not entitled to the relief sought.

We have been cited to no case in this State, and have found none, where this precise question has been decided. We, however, find that it has been determined adversely to the appellant by the courts, both of England and Pennsylvania.

The first case where this question arose, to which our attention has been called, is In the Goods of---(14 Jurist, 102), decided in 1850. In that case, two unmarried sisters, who lived together, were anxious each to make a will giving to the other, whichever of them might survive, the property they mutually possessed. Accordingly two wills were drawn up, the language and contents of which were precisely the same, except the name of the person in whose favor the bequests were made. This was done by a solicitor, their brother-in-law. Shortly after the wills were so drawn up they were signed at the same time by the two sisters in the presence of two witnesses, and, as was supposed at the time, were duly and properly executed; but, upon the death of one of these ladies, it was discovered, when looking at what was thought to be her will, that the signature of the living sister was affixed to that will instead of that of the intended testatrix, and that the signature of the deceased sister was affixed to the will of the living one. It was evident from this that a mistake had been made when the wills were signed, each having unintentionally signed the other’s will. Application for the probate of the will of the deceased was made on the suggestion that a court of equity might put a construction on the contents of the one then before the court. Sir II. Jenner Eust, who delivered the opinion of the court in that case, said : “ Two ladies live together, and they determine to make, what I may call, mutual wills. The wills are the same, mutatis mutandis; they were drawn up and executed — that is, if executed they are — at one and the same time, but, unfortunately, each signed the other’s will. After the death of one of them the solicitor alters them so as to make the will of one apirear as that of the other, and I need scarcely say he has erred in so doing. But what is to be done with this paper ? It is not the will of the deceased, and.it purports to give all her property to herself, a manifest absurdity. I must reject the motion.”

The same doctrine was held in Alter's Appeal (67 Penn. St., 341), which was decided in 1871. In that case a husband and wife had wills prepared, giving their property to each other. By mistake each signed the other’s will. After the husband’s death an act of assembly -was passed authorizing the court to hear testimony, and if the mistake ivas proved to reform the will. In that case it was held that the right of the husband’s heirs had vested on his death, and the act was invalid; that the husband had executed no will and there was nothing to reform.

' In delivering the opinion in that case, Agnew, J., said: This is a hard case, but it seems to be without a remedy. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favor of each other, so that the survivor should have all they possessed.. Their wills were drawn precisely alike, mutatis mutandis, and laid down on a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were inclosed in separate ■envelopes, indorsed and sealed up. After the death of G-eorge A. Alter the envelopes were opened, and it was found that each had by mistake signed the will of the other. To remedy this error the legislature, by an act, approved the 23d day of February, 1870, ■conferred authority upon the Register’s Court of this county to take proof of the mistake, and proceed as a court of chancery to reform the will of G-eorge A. Alter and decree accordingly. Proceedings were had resulting in a decision of the Register’s Court that there was no -will, and that the act to reform it was invalid, the estate having passed to and vested in the collateral line of kindred. From this decree an appeal has been taken by Catherine Alter. On this statement the first inquiry is, was the paper signed by George A. Alter his will? "Was it capable of being reformed by the Register’s Court? The paper drawn up for his will was not a will in law, for it was not c signed by him at the end thereof,’ as the Wills Act requires. The paper he signed was not his will, for it was drawn up for the will of his wife and gave the property to himself. It was insensible and absurd. It is clear, therefore, that he had executed no will, and there was nothing to be reformed. There was a mistake, it is true, but that mistake was the same as if he had signed a blank sheet of paper. He had written his name, but not to his will. líe liad never signed his will, and the signature, where it was, was the same as if he had not written it at all. He, therefore, died intestate, and his property descended as at law. The difficulty lies not in the want of power of a court of chancery to reform a mistake in an existing will, when full equity power to that end is conferred by the law, but in the want of power to give an existence to that which had none before. And the objection to the validity of the act conferring the authority to decree the will lies not in a want of power in the legislature to establish a will upon parol proof of the fact of making it, and of the intent to execute the proper paper, but in its want of power to divest estates already vested at law on the death of George A. Alter without a will. There being no will, it is evident that the effect of any subsequent legislation, call it by what name we may, is simply to divest estates.”

In the Goods of Hunt (L. R., 3 Pro. and Div., 250), decided in 1875, the decedent, who resided with her sister, prepared two wills for their respective execution. The legacies in each and the disposition of the residue were almost identical, and in either case a life interest was given to the survivor in the bulk of her sister’s property. The deceased, in mistake, executed the will prepared for her sister. The court held that the deceased did not know and approve of the contents of the document she executed, and refused probate of it. In that case Sir J. IIannen, said: “ I should be glad to give effect to the intentions of the testatrix, by granting probate of this instrument, if I could, but I must not allow myself to. be led away, from what appears to me to be very plain ground, by such a desire. No doubt there has been an unfortunate blunder. The lady signed as her will something which, in fact, was not her will. If I were to attempt to read it as her will, it would lead to a variety of absurdities. She leaves to her sister Sarah, that is to herself, a life interest in a portion of her projDerty, and all the furniture, plate, etc., which she holds in part with herself. I am asked to treat this as a misdescription. If by accident a wrong name had been introduced, and it was clear what person was intended, the court would give effect to the instrument, provided the mistake could be corrected. But it would be contrary to truth in this case if I acted on such an assumption. If I were to put such a construction upon this will, I should be assuming, in order to do substantial justice, what every one who hears me would know is. contrary to the fact. And no court ought to base its judgment on something wholly artificial, and contrary to what every one must see is the real state of the circumstances. It is enough to say that there has been an unfortunate blunder. A paper has been signed as the lady’s will, which, as it happens, if treated as her will, would, to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not, in fact, know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I caiinot repair it. I reject the motion, but I allow the executor’s costs out of the estate.”

The same doctrine is laid down in Scliouler on Wills (§ 215), and in Bedfield on Wills (page 49 § 16, and note).

I have quoted thus fully from these cases for the reason that the facts were almost identical with those of the case at bar, and hence the reasoning of the courts is clearly applicable here.

If we follow the doctrine of these authorities, it becomes manifest that the judgment in this case should be upheld, as the principle of the cases cited, if applied, is decisive of the question here involved* It is, however, said by the appellant that these authorities are not binding upon this court, and should be disregarded. It may be that this court would not be bound to follow the cases cited if satisfied that they were improperly decided, but as the reasoning of the court, and the result in those cases, commend themselves to our judgment, and are in harmony with the views we entertain upon this subject, they serve to confirm our opinion and lead us to hold accordingly.

Therefore, while we admit that the mistake in this case was unfortunate for the plaintiff, and one that a court might well desire to correct, still, as we think, both upon principle and authority, that the court could not correct it, it follows that we are required to hold that this action could not be maintained, and that the judgment appealed from should be affirmed.

As tlie costs in this action are in tlie discretion of the court, and as it is quite manifest that the intent of the decedent has been thwarted by the mistake in executing his will, we think costs should not have been awarded against the plaintiff. This conclusion is more fully justified when we consider the fact that the question involved in this case was new, and had not been decided by the ■courts of this State.

The judgment should be modified by striking out the costs awarded to the defendants, and as modified affirmed, without costs.

Hardin, P. J., and Merwin, J., concurred.

Judgment modified by striking out the costs awarded to the defendants, and as modified affirmed, without costs of the appeal to either party.


source: Caselaw Access Project

author: MaetiN, J.:

license: Public Domain

text:
    RICHARD M. ODERKIRK, Respondent, v. JAMES C. FARGO, as President of the AMERICAN EXPRESS COMPANY, Appellant.

      Negligence — a trunk left by Hie consignee thereof in the company’s office — liability as wa/rehouseman or gratuitous bailee — agent’s authority — rule of the company— question of delivery and acceptance is for the jury— gross negligence must be proved, —■ when a question of fact — contradicting a witness.
    A trunk belonging to one Oderkirk reached the office of an express company on Saturday. On Monday, Oderkirk found it there and said to the agent of the company that he wished to take from it some things belonging to one Smith, and to leave the trunk there to be called for by a team the next or the following day. The agent replied that if Oderkirk paid the charges he could take the things out and leave the trunk there. Oderkirk paid the charges, signed the ordinary receipt without knowing its contents, and took out the things.
    Upon \Vednesday he called for the trunk and was informed by the agent that he had, on Tuesday, delivered it to certain persons, who asked for it, and who, as the agent supposed, were sent by Oderkirk.
    In an action by Oderkirk to recover the damages resulting from such wrongful delivery:

      Meld, that if such an arrangement was entered into between the agent and Oderkirk before the latter paid the charges and signed the receipt, it became a question for the jury whether the relation of warehouseman was created thereby or whether the express company was liable as a gratuitous bailee. .
    That such an arrangement was within the apparent scope of the agent’s authority, and would bind his principal although he had no authority from it to make such an arrangement.
    That a rule of the express company, instructing agents not to retain packages in their offices after the charges thereon had been paid and the goods receipted for, was not material unless it was shown that it had been communicated to Oderkirk.
    That whether, upon the facts, there was a delivery to, and acceptance by, the plaintiff of the whole trunk was a question for the jury.
    That the burden' of proving gross negligence is upon him who asserts it; that it may be shown by witnesses or from the circumstances.
    That, for the purpose of laying a foundation to contradict a witness, it was proper to ask him whether he had not, on a former trial in a Justice’s Court, testified in a certain manner, and that it was not necessary to produce the justice’s minutes of the testimony.
    Appeal by James C. Fargo, as president of tbe American Express ■Company, from a judgment of the Jefferson County Court, entered in the clerk’s office of said county on the 18th day of April, 1891, upon a verdict for the plaintiff for forty-three dollars and forty-eight cents and costs; and also from an order denying the defendant’s motion for a new trial made upon the minutes of the court before which the action was tried.
    The action was commenced in a Justice’s Court, and the plaintiff had judgment. From that judgment the defendant appealed to the Jefferson County Court. Upon a retrial in the County Court the plaintiff was nonsuited. He then appealed to this court, where the judgment of the County Court was reversed and a new trial granted. The action was again tried in the County Court, and the jury found for the plaintiff.
    The plaintiff, by this action, sought to recover of the defendant the value of a trunk and its contents, which had, by plaintiff’s direction, been sent by express from Stony Creek, "Warren county, N. Y., to Watertown, N. Y., and carried by the defendant from Rome to Watertown, and which plaintiff claimed was not delivered to him, but wrongfully delivered to some other person.
    Upon the last trial, as upon the former trial, in the County Court it appeared that plaintiff’s trunk reached the defendant’s office at Water-town on Saturday, October 26, 1889. The following Monday, in the forenoon, the plaintiff, who lived a short distance out of town, called at the defendant’s office and there found his trunk. He testified that, on that occasion, he said to the agent of the defendant in charge of the office that he wanted to take out some things that belonged to a man by the name of Smith, and then leave the trunk there until the following day, or the next, to enable him to have it taken to his house by one of 'Woodruff’s teams that were drawing brick, and the agent replied that, if the plaintiff paid the charges, he could take the things out and leave the trunk ; that he then paid the charges and signed in a book what was shown to have been a receipt,, but he did not at the time know what he signed; that he then opened the trunk, and some of the clothing belonging to Smith was taken out. He then locked it again and left it there. Upon Wednesday of the same week he went again to the office for his trunk, when he was informed by the agent that it had been delivered the day before to some other persons upoon the supposition that the plaintiff had sent for it. The plaintiff also testified that he never authorized any one to take the trunk, and had never received it. The evidence disclosed that two men with a team called at the office, asked for the plaintiff’s trunk,, said the charges were paid, and that it was receipted for, and that defendant’s agent then pointed out to them the trunk and they took it; that he did not ask them for any order, or whether they had any authority from plaintiff to take it, did not know who the men were, and took no measures whatever to learn whether they were authorized to receive it.
    On the trial the court submitted to the jury the question whether the arrangement between the plaintiff and defendant’s agent was made before the charges were paid and the receipt signed, as testified to by the plaintiff, or afterwards, as testified to by defendant’s agent, adding that, if they found with the plaintiff, they should determine whether the relation of warehouseman was thereby created. The court also submitted to the jury the question whether the defendant was guilty of gross negligence, and thus liable if the relation of the defendant was to be regarded as that of gratuitous bailee. The jury found for the plaintiff.

      Thomas F. Kearns, for the appellant.

      E. G. Emerson, for the respondent.
   MaetiN, J.:

Under tlie evidence in this case it was a question of fact whether the transaction between the plaintiff and the defendant’s agent was as testified to by the plaintiff, or as testified to by the defendant’s witnesses, and was properly submitted to the jury. The verdict of the jury upon that question should be regarded as final. (Baird v. Mayor, etc., 96 N. Y., 567; Archer v. N. Y., N. H. and H. R. R. Co., 106 id., 589, 602.)

When this case was before this court on a former appeal, Merwin, J., who delivered the opinion of the court, said : “ The property was allowed to remain at the express office for the convenience solely of the plaintiff. This, according to the doctrine laid down in Fenner v. Buffalo and State Line Railroad Company (44 N Y., 505), would relieve the defendant from liability as a common carrier. * * * It does not, however, follow that because liability as a common carrier had ceased there was no liability at all. * * * In the present case, according to the evidence of the plaintiff, the agent of the defendant, before the charges were paid and the property receipted, agreed that plaintiff might take away a portion and leave the balance, with the assurance that it woidd be all right. If this was so, it should not be said, as matter of law, that there was a delivery to and acceptance by the plaintiff of the whole. There was no termination of the transaction with the carrier. The custody of what was left remained as it had been before. It was in the office of the company and under control of its agent.' But it is said that the agent- of the company had no power to bind the company, to tlié agreement or consent that the property be left. This seems to have been the main ground for the nonsuit. The agent testifies that he had no such authority, but he does not say that he so informed the plaintiff. If, as testified to by the plaintiff, and as might have been found by the jury, the arrangement for leaving the trunk was made before the payment of‘the charges and the signing of the receipt, and with a view to give the plaintiff a reasonable opportunity to send for his goods, it would be a matter within the apparent scope of the authority of the agent, managing there the business of the company, and would bind the company in the absence of any notice to the plaintiff of any restriction on the agent’s authority. (Curtis v. Avon, G. and M. M. R. R. Co., 49 Barb., 148; Isaacson v. N. Y. C. and H. R. R. R. Co., 94 N. Y., 278; Story on Agency, § 126.) At least it should not be said, as matter of law, that the company would not be liable. It follows that the nonsuit was improperly granted, and that the request of the plaintiff to go to the jury on the question of the negligence of the defendant as warehouseman should have-been granted.” (Oderkirk v. Fargo, 58 Hun, 347.) We regard that opinion as controlling in this case, and think the case was: properly submitted to the jury. Hence the judgment and order should be affirmed, unless some of the defendant’s exceptions are-valid and require a reversal.

On the trial the plaintiff, on the cross-examination of the defendant’s agent, who was sworn as a witness and testified that the conversation with the plaintiff about leaving the trunk was after the charges were paid and the receipt signed, asked the following question: “ "Will you swear you did not swear before the justice when the first trial was had, within four weeks after it occurred, that the whole talk about leaving that trunk there and the arrangement was made-before the book was signed and charges paid ? (Objected to by defendant as incompetent and immaterial. 0 verruled. Exception.)

“ DefbNdaNt’s Counsel — Give me an exception on the ground that he should read the minutes of the court below.
The Coubt — He asks him a question laying a foundation tn contradict him.
“ Defendant’s Counsel — I object to it as incompetent and immaterial; and that the evidence of the justice taken in the court below should be produced, and the witness asked if he swore so and so from the minutes of the court.
u The Coubt — He has a right to ask the question.
“ Defendant’s Counsel — Those are my grounds and give me an exception.”

We find no error in this ruling. It is abundantly sustained by the authorities. (Pickard v. Collins, 23 Barb., 444; Weeks v. Fox, 3T & C., 354, 357; Grimm v. Hamel, 2 Hilt., 434; Tooker v. Gormer, 2 id., 71; Sitterly v. Gregg, 90 N. Y., 687; Chapman v. Brooks, 31 id., 75; McCabe v. Brayton, 38 id., 196.) Moreover, the witness had previously testified to substantially the same fact without objection.

The defendant asked the witness Garvey, who was a route agent of the defendant company, “And have you any instructions of any kind to retain packages in the office after the charges are paid upon them, and they are receipted for by the consignees ?

“Plaintiff’s OouNsbl — I object to it as incompetent and immaterial, and no evidence of any instructions was brought to the knowledge of the plaintiff.
The Couet — I hold it is immaterial unless it is followed by that, but they may ask the question. I hold, under the ruling of the General Term, it is immaterial, unless it was brought to his knowledge.
“ Defendant’s Counsel — I offer to show that, your honor.
“The Couet — That it was brought to his knowledge.
“ Defendant’s Counsel — I don’t know whether it was brought to Oderkirk’s knowledge or not. But I offer to show that the witness, or the agent here, or any of the agents, have no right to retain any package m the office after the charges are paid, and they are receipted for upon the books.
“ The CouRT — I decline to receive it unless you propose to show that it was communicated to the plaintiff.
“ Defendant’s Counsel — I except. I offer to show that broad proposition, and it is objected to upon what ground ?
“ Plaintiff’s Counsel — As incompetent and immaterial; unless it is shown that the instructions were communicated to the plaintiff. (Objection sustained. Defendant excepts.)
“ Defendant’s Counsel — I offer to show by those witnesses that they have no authority whatever from the company to store any goods whatever in their offices after the charges are paid and receipted. (Objected to as before. Objection sustained. Defendant excepts).”

We do not think these exceptions were well taken. First. The evidence offered related to instructions given to the witness, and there was no offer to show that he knew what particular instructions were given to Horton. Second. It was not claimed that the instructions, if any were given, were communicated to plaintiff. This ruling seems to be in accordance with the former opinion in this case. It is there said : “ If, as testified to by the plaintiff, and as might have been found by the jury, the arrangement for leaving the trunk was made before the payment of the charges and the signing of the receipt, and with a view to give the plaintiff a reasonable opportunity to send for his goods, it would be a matter within the apparent' scope of the authority of the agent, managing there the business of the company, and would bind the company in the absence of any notice to the plaintiff of any restriction on the agent’s authority.”

Parties may deal with the agents of corporations upon the presumption that they possess the powers usually assigned to the office they hold, and the principal is bound, as to third persons acting in good faith, by the act of an agent within his apparent authority, although in the particular instance it was unauthorized.” (Isaacson v. N. Y. C. and H. R. R. R. Co., 94 N. Y., 285 ; Story on Agency, § 126; Smith on Mercantile Law [2d ed.], 59)

The question here was not what real authority Horton possessed, but what his apparent authority was. Hence the testimony was not material. The plaintiff could recover orily in case that the arrangement with him .was within the apparent authority of the agent.

N or do we think the defendant’s exception well taken to the portion of the charge where the court said : “ I think it cannot be said, as a matter of law, that there was a delivery and acceptance.by the plaintiff. I leave the question to the jury.” This question was decided on the former ajipeal. It was then held that it should not be said, as a matter of law, that there was a delivery to and acceptance by the plaintiff of the whole.

It is also claimed by the appellant that the court erred in the following portion of its charge, and in refusing to charge according to the following requests:

“ Defendant’s Counsel-— * * * I ask your honor to charge the jury that the burden of proving negligence rests upon the plaintiff, and the same must be shown by a preponderance of evidence.
“ The Court — Oh, yes; it is for the jury 'to say, under the law, ■whether there was negligence in this case.
“ Defendant’s Counsel — The burden is upon the part of Oder-kirk to show it. I ask your honor to charge, also, if the plaintiff himself is guilty of contributory negligence in leaving the matter open as he did, that he would send a team without any order, then, in that case, the gross negligence upon the part of the defendant would not avail the plaintiff.
“ The OouRT — I will not charge it in that way.
“ DEFENDANT’S Counsel — I except. I say that if he was guilty of contributory negligence in any way in reference to this trunk, then gross negligence upon the part of the defendant would not avail.
“ The Court — If he was guilty of negligence in allowing the defendant to deliver it as he did, then no recoverv can be had; otherwise I decline to charge your proposition.
“ DefendaNt’s Counsel — I except. That is, if he was cognizant of the way it was delivered.
“ The Court — Tes, if he left it in such shape that they might deliver it to wrong party.
“ DefendaNt’s OouNSEL —■ In leaving it the way he did, if he was guilty of contributory negligence, then any negligence on the part of the defendant would not avail him.
“The Court — I leave that to the jury. I decline to charge otherwise. -
Defendant’s Counsel — I except. I ask your honor to charge that gross negligen'ce must be proven, and cannot be assumed.
“ The Court — Oh, yes, it must be proven, but not by witnesses; it may be from the circumstances as well; but it must be proven.
“ Defendant’s Counsel — I except. I ask your honor to charge that there is no gross negligence upon the part of Mr. Horton or any of the employes in xhe delivery of this property to any person.
“'The Court — I leave it to the jury under the instructions I have given.
“ Defendant’s Counsel — I except. I ask your honor to charge that Mr. Horton did not act for the company in the capacity of a gratuitous bailee.
“The Court — I decline to charge that.
“ Defendant’s Counsel — I except. I ask your honor to charge that there is no evidence that he is guilty of gross negligence.
“ The Court — I decline to charge otherwise than.I have.
“ Defendant’s Counsel —• I except.”

By an examination of this portion of the charge, it will be perceived that the court charged that the burden of proving negligence rested on the plaintiff, and must be shown by a preponderance of evidence, and that gross negligence was not to be assumed, but must be proved. The court also charged that if the plaintiff was negligent in allowing the defendant to deliver, as he did, if he left it in such shape that it might be delivered to the wrong party, then no recovery could be had. This portion of the charge was as favorable to the defendant as it was entitled to. There was no proof or claim that the plaintiff was guilty of, any negligence that contributed to the loss of the trunk, unless it existed m what was said by him as to sending for it. The court, in effect, charged that if he was negligent in that respect, he could not recover. This was all that the defendant could properly ask. The question whether the plaintiff was negligent, was properly submitted to the jury. It was a question of fact, and not of law.

We find no error in the refusal of the court to charge that Horton did not act for the company in the capacity of a gratuitous bailee.

Neither do we think the court erred in refusing to charge that there was no gross negligence on the part of the defendant’s agent. The proof was sufficient to present a question- of. fact as to whether-the agent was guilty of such a degree of negligence. If a jury was not justified in finding that the defendant’s agent was grossly negligent in this case, it would seem that gross negligence could be established in no case unless a willful and intentional wrong had been committed. The defendant’s agent was so utterly unmindful of the duty which he owed to the plaintiff to exercise at least some-degree of care not to deliver this trunk to a stranger, that he omitted to exercise even the slightest care to ascertain whether the persons applying for it had any authority to receive it. He not only did not inquire as to the authority of the persons who took it, but lie did not even look at them to ascertain what manner of men they were.

When the portions of the charge excepted to are considered together, and construed in connection with the remainder of the charge relating to the subject, it becomes quite manifest that the instructions of the court conveyed to the jury the correct rule of law upon the questions presented, and that the jury was not misled-thereby.

No other question is raised by tlie appellant. We think the. judgment and order should be affirmed.

MebwiN, J , concurred; HaediN, P. J., not sitting.

Judgment and order affirmed, with costs.


text:
    FRANK B. JENKS, Respondent, v. THOMAS QUINN, Appellant.

      Estoppel — failure of one, only secondw'ily liable for a mortgage debt, who is present at a sale of the mortgaged premises, to demand the sale of the proper parcel— damages recoverable upon a covenant of was'ranty.

    The loan commissioners of a county held a mortgage upon certain land, the payment of which had been assumed by the owners of the mortgaged premises, John Curtin and Daniel Curtin. The owners subsequently divided the property by instruments of conveyance, by which Daniel agreed to save John harmless from said mortgage as to the portion of the property deeded by Daniel and his wife to John. John thereafter deeded this portion to one Quinn. Quinn and wife, by warranty deed, conveyed to one William S. Jenks, who conveyed to one Frank B. Jenks.
    Subsequently a sale was had under a foreclosure of said mortgage, notice of which was given to the ¡parties in interest. The loan commissioner making the sale intended to sell first that portion of the whole tract which in the partition had been deeded by John to Daniel, and which was of sufficient value to pay said mortgage. By mistake he sold the portion which had come to Frank B. Jenks,
    William S. Jenks knew of the provision in the deed from Daniel to John making-Daniel's portion primarily liable. At the sale neither Frank B. Jenks nor William S. Jenks, who were present, requested that the portion set off to Daniel be sold first.
    In an action brought by Frank B. Jenks, who had been ejected by the purchaser under the foreclosure sale, against Quinn to recover the value of the premises under the covenant of warranty in the deed given by Quinn, the evidence showed that William S. Jenks had served upon the defendant Quinn, personally, a notice-of the sale and requested him to be present at the sale and protect the plaintiff's-portion of the premises, which Quinn had promised to do.

      Held, that the action could be maintained.
    That the failure of the commissioner to sell the piece of land primarily liable for the debt did not render the sale void, and that the purchaser at the sale acquired a valid title to the property purchased.
    That the doctrine of a sale in the inverse order of alienation was not involved, this being merely a question of the sale of a parcel made by the contract between its owners, secondarily liable for a mortgage debt, before selling the parcel primarily liable.
    That the plaintiff had a right to rely on the promise of the defendant Quinn to be present at the sale and protect him, and that the plaintiff’s failure to demand that the parcel not sold be first sold did not constitute an estoppel, nor did it relieve the defendant from liability under his covenant of waranty of title.
    That the matter might have been held otherwise had the question arisen between the plaintiff and the purchaser.
    The plaintiff was awarded as damages the value of the premises at the time of his eviction.

      Meld, that this was proper as this sum was less than the consideration named in the deed from the defendant to William S. Jenks.
    Where, by the foreclosure of a mortgage, and a sale thereunder, there has been an absolute failure of title, the rule of damages is the value of the premises at the time the defendant conveyed, as evinced by the consideration named in his deed, with interest from the date at which the plaintiff is evicted, not to exceed six years.
    Appeal by the defendant Thomas Quinn from a judgment of the Supreme Court, entered in the clerk’s office of Cortland county on the 13th day of January, 1891, in favor of the plaintiff, after atrial before the court without a jury at the Cortland Circuit.

      A. P. Smith, for the appellant.

      W. 0. Orombie, for the respondent.
   Martin, J.:

This action was upon a covenant of warranty contained in a deed from the defendant to the plaintiff’s grantor. The plaintiff was ■evicted by a purchaser, under a foreclosure and sale of the premises, upon a mortgage given to the loan commissioners of Cortland county to secure the payment of the sum of $496 and interest. The mortgage was given in June, 1837, by Jonathan and Ransom Scott, who were then the owners of the premises mortgaged, which included the premises in question with other lands then owned by them. The mortgaged premises, with others, were conveyed by Ransom Scott .and wife to Charles Pardee, March 12, 1867. This deed was made subject to the foregoing mortgage, which the grantee assumed and agreed to pay as a part of the purchase-price. The deed was recorded April 15, 1867. Pardee conveyed to John and Daniel Curtin 137 acres-of the mortgaged premises on April 1, 1868, subject to such mortgage, which the grantees covenanted to pay. This •deed was recorded May 9, 1870.

Subsequently John and Daniel Curtin divided tlie' premises so purchased, Daniel'and wife conveying to John fifty-six and one-half acres thereof by deed dated October 2, 1871, which deed contained a covenant that Daniel should save John “ harmless from, and pay off and liquidate,” the mortgage in question; and he also assumed by such deed to pay $1,535.35 of another mortgage held by Pardee, which was a lien thereon. This deed was recorded December 11, 1871.

On the day that the last-mentioned deed was given, and in consideration thereof, John Curtin and wife conveyed to Daniel seventy-nine acres of the mortgaged premises, John agreeing to pay $1,452.95 of tlie last-mentioned mortgage. This deed was also recorded December 11, 1871. On December 8, 1871, John Curtin and wife conveyed the fifty-six and one-half acres owned by them to defendant, which deed was recorded on December 11, 1871. Afterwards, and on the 8th day of March, 1873, the defendant and Avife conveyed the fifty-six and one-half acres to William S. Jenks, the purchase-price, as stated in the deed, being the sum of $2,200, the grantee assuming and agreéing to pay on the Pardee mortgage the sum of $1,384.32. This deed contained the covenant, which is the foundation of this action.

On February 4, 1881, William S. Jenks and Avife conveyed the premises in question to the plaintiff, the consideration for such conveyance being the sum of $1,400, and an agreement by the grantee to give the grantor and his wife a home with him as long as he should keep the place, or during their lives, the plaintiff assuming the amount due on the Pardee mortgage, which was about $1,200, as a part of the purchase-price, the remainder to be paid to his grantor.

Several years before the foreclosure of the loan commissioners’ mortgage William D. Hunt became the owner of that portion of the mortgaged premises which Avas deeded to Daniel Ourtin. From the time when Daniel and John Curtin divided the premises, until October 1, 1886, Daniel, and those who acquired title under him, paid the interest on the loan commissioners’ mortgage, except that in one year Hunt, who was then the owner of the Daniel Curtin premises, induced the defendant to pay a portion thereof, which he afterwards recovered of Hunt in an action against him brought for that purpose.

On or about November 1, 1887, the loan commissioners of Cortland county instituted a proceeding to sell the premises covered by ■such mortgage, in pursuance of the statute relating to such mortgages, and a sale was had therein on February 7, 1888. Notice of the time and place of such sale was served upon both the plaintiff and • defendant. The plaintiff and his grantor were present, but the defend..ant was not. By reason of a mistake in the search obtained by the loan commissioners, it appeared that the owner of the plaintiff’s premises was to pay such mortgage, when, in fact, it was the part ■ owned by Hunt that was primarily liable therefor, according to the provisions in the deed from Daniel to John Curtin. The loan commissioner making the sale intended to sell the piece that was thus liable, but by reason of such mistake he sold -the other. The plaintiff’s grantor knew of the provision in the Daniel Curtin deed. The premises owned by Hunt were of sufficient value so that if they had been first sold, a sufficient sum would have been realized to pay =said mortgage debt, interest and costs. At the sale neither the plaintiff nor his grantor requested or demanded that the premises thus primarily liable should be first sold, but stood by and permitted the premises in question to be sold.

The plaintiff’s evidence tended to show that when the defendant conveyed the premises to the plaintiff’s grantor, the latter had heard of this loan commissioners’ mortgage, and the defendant then assured him that it was for Daniel Curtin to pay, and would be paid; and stated that he would see that the mortgage was paid and discharged, and subsequently promised to pay the mortgage and have it discharged. The plaintiff’s evidence also tended to show that his grantor served a notice of the sale upon the defendant personally, and requested him to be present and protect the premises from such sale, and he promised to do so.

Upon the sale the premises were purchased by Frank L. Cuddeback for $635 52, which was the amount due upon the mortgage, including interest and costs. After the sale the purchaser went to the premises and asked the plaintiff to vacate them, whereupon he surrendered possession to the purchaser. After such surrender, the purchaser leased the premises to the plaintiff’s mother, who was the wife of -the plaintiff’s grantor.

The plaintiff’s proof was that the premises in question were worth at the time of the sale, and when he was evicted, the sum of $1,906.19. The coui't found that that was the value, and that the plaintiff was entitled to recover that sum, with interest, from February 7, 1888, besides costs, and directed judgment accordingly.

The appellant contests the validity of this judgment upon the grounds:

(1.) That the sale, not having been made in the inverse order of alienation, was void, and that plaintiff and his grantor, having notice that the lands sold were not primarily liable for the mortgage debt, and having been present and permitted them to be sold, when the lands which were primarily liable were of sufficient value to have satisfied the debt and costs, were estopped from claiming damages caused by their neglect.

( 2.) That if the defendant was liable, the damages awarded were in excess of the amount to which the plaintiff was entitled.'

We do not perceive how the question of selling the mortgaged premises in the inverse order of alienation is involved in the case. The question here relates to the validity of the sale of a portion of the premises which, under the contract between the owners, had become only secondarily liable for the mortgage debt before selling the part that was primarily liable therefor. That the loan commissioner, in making this sale, did not first sell the portion of the premises, which, by the conveyance between the former owners, was made primarily liable for the mortgage debt, is undenied.' That such should have been the order of sale we have no doubt, notwithstanding the fact that the provisions of the statute requiring property thus mortgaged to be sold in the inverse order of alienation has been repealed. (Laws 1837, chap. 150; Laws 1856, chap. 3; Laws 1863, chap. 73, § 27.) The well-recognized principles of equity required the premises primarily liable to pay such debt to be first sold, and we have no doubt that a sale in that order could have been enforced if the plaintiff, his grantee, or the defendant had demanded it. (Conaughty v. Nichols, 42 N. Y., 83.) Where the owner of mortgaged premises sells a portion thereof to a purchaser who assumes and agrees to pay, as a part of the purchase-price, the whole or a part of the mortgage debt, the purchaser is legally and equitably bound to pay off and satisfy such mortgage. By such assumption he becomes the principal debtor, and the land conveyed to him the primary fund out of which the mortgage is to be paid, the mortgagor remaining simply a surety, and the remainder of the property being liable only secondarily. The purchaser, therefore, is bound to protect the mortgagor and his grantees from all liability on account of the mortgage debt. And should the mortgagor or his grantee be compelled to pay the mortgage debt or any part thereof, he will be entitled to an assignment of such mortgage to enable him to obtain satisfaction out of the land of the party who assumed the payment thereof. (Torrey v. Bank of Orleans, 9 Paige, 649; Wilcox v. Campbell, 106 N. Y., 325; Halsey v. Reed, 9 Paige, 446.)

Put, as we have already seen, neither the plaintiff nor his grantor, or the defendant, requested or demanded of the loan commissioner that the premises owned by the grantee of Daniel Curtin should be first sold. The effect of such omission is one of the questions we are required to consider on this appeal. No question is raised as to the regularity of the proceedings before, upon or after such sale, except that the plaintiff’s premises should not have been first sold. That they were still subject to the mortgage there is no doubt. Did the failure of the commissioner to first sell the piece -primarily .liable for the debt render the sale void ? We think not.. While it is doubtless true that, if the plaintiff, his grantor or the defendant had demanded or requested the commissioner to sell that portion of the premises first, it would have been his duty to do so, and the right to have the sale thus made could have been enforced; still, in the absence of such demand, we think the sale was valid and passed the title to the purchaser, at least until vacated or set aside. It follows then, that, as the purchaser acquired a good and valid legal title to the premises, which was paramount to that of the plaintiff, the purchaser was entitled to possession. The plaintiff was justified in surrendering possession, and was entitled to recover on the covenant of warranty contained in his grantor’s deed, unless he had been guilty of some act which would bar such a recovery.

The contention of the appellant is, that the plaintiff’s right to maintain this action was barred- by the action of himself ,and his grantor in standing by and permitting, without objection, the sale of their -premises first, when, if they had asserted their right, the premises would not have been sold. We think it is quite obvious that if the plaintiff or his grantor had objected to such sale and requested that the other portion of the mortgaged premises should be sold first, the commissioner would have discovered his error and sold the premises in the proper order.

This brings us to the question whether the plaintiff owed to the defendant the duty to make this demand, and if so, whether his omission to discharge it relieved the defendant from his liability upon the covenant, which was the basis of this action. On the trial the plaintiff’s evidence tended to show, and the court in substance, found, that the plaintiff’s grantor served upon the defendant a notice of such sale and requested him to be present and protect the plaintiff’s premises from such mortgage, and he agreed to be present. Under this evidence we are inclined to hold that the plaintiff and his grantor had a right to rely upon the agreement of the defendant to be present and protect the premises from sale. That they would not have been required to attend under such circumstances, we think, is quite clear. (Wilcox v. Campbell, 106 N. Y., 325.) We are also of the opinion that if they went there relying upon the defendant’s promise, without ascertaining their rights or learning that any action upon their part was necessary to protect their premises from sale, and in consequence thereof omitted to make the proper request, the defendant cannot complain, and that such omission did not bar a recovery in this action.

We have been cited to no case, or doctrine of the law of estoppel, which would justify us in holding, under the circumstances developed by the evidence in this case, that the plaintiff was estopped from maintaining an action upon the defendant’s covenant of warranty, because he was present at such sale and did not demand that the other portion of the mortgaged premises should be first sold. It will be observed that the question here does not arise between the plaintiff and the purchaser. If such had been the question, it may be that the plaintiff, if he was silent or passive when he ought to have spoken or acted, might, as to the purchaser or those claiming under him, have been estopped. Here the question is between the. plaintiff and a former grantor of the premises. “ The party will, in many instances, be concluded by his declarations or conduct which have influenced the conduct of another to his injury. The party, in sucli cases, is estopped from denying the truth of his admissions. But, to the application of this principle with respect to title to property, it must appear, first, that the party making the admission by his declarations or conduct was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud ; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, fourth, that he relied directly upon such admission, and will be injured by allowing its truth to be disproved. The primary ground of the doctrine is, that it would be a fraud in a party to assert what his previous conduct had denied, when, on the faith of that denial, others have acted. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.” (Herman on Estoppel, § 966, and cases cited in note; see, also, Bigelow on Estoppel, § 543 et seq.)

It is quite manifest, we think, that the doctrine of estoppel has no application in this case, as practically none of the conditions existed which were essential to create an estoppel.

Hence we find nothing in the plaintiff’s omission to request the commissioner to sell the other part of the premises first which would constitute a defense to this action. "While we are not at all inclined to hold that the defendant has no remedy for the injury he has sustained, or may sustain, by reason of the manner in .which such sale was made, yet, we do not think it rests in the alleged defense to this action.

This brings us to the consideration of the question of damages. The court awarded to the plaintiff the value of the premises in question at the time of his eviction. The amount awarded was $1,906.19, and interest from February 7,1888, which was when the plaintiff was evicted. The rule of damages in this State, in an .action for the breach of a covenant for quiet enjoyment, in the .■absence of fraud, where the eviction is based upon an absolute title in another, is the amount of the purchase-money, with interest from the time the plaintiff loses the mesne profits, not to exceed six years. (Staats v. Ten Eyck, 3 Cai., 111; Pitcher v. Livingston, 4 Johns., 1; Bennet v. Jenkins, 13 id., 50; Baldwin v. Munn, 2 Wend., 399; Dimmick v. Lockwood, 10 Wend., 142; Kinney v. 14 id., 38; Kelly v. The Dutch Church of Schenectady, 2 Hill, 106; Hunt v. Raplee, 44 Hun, 149, 155.)

The covenant of warranty contained in the deed from the defendant to .the plaintiff’s father was a covenant which ran with the land for the protection of the owner in whose time the breach occurred, ■and passed with the estate by purchase to the plaintiff. (Rawle on Covenants for Title, § 213 et seq., and cases cited.) The plaintiff’s right of action being under and by virtue of the covenant contained in the deed from the defendant to plaintiff’s grantor, it may be that the true rule of damages would be the amount of the purchase-price named in the defendant’s deed. There is, however, a conflict in the decisions of other States upon this question. By some it is held that the measure of damages in such a case is the consideration paid by the original covenantee, and not the price paid by the plaintiff. (Lowrance v. Robertson, 10 Rich. [S. C.], 8; Hopkins v. Lane, 9 Yerg. [Tenn.], 79.) By others, that the measure of damages is the price paid by the plaintiff, not exceeding the amount of consideration received by the defendant. (Moore v. Frankenfield, 25 Minn., 540; Crisfield v. Storr, 36 Md., 150; Mette v. Dow, 9 Lea. [Tenn.], 100; Williams v. Beeman, 2 Dev. [N. C.], 483.) Perhaps it may be said that the weight of authority in other States is adverse to the rule first stated.

In the case of Petrie v. Folz (54 Supr. Ct. Rep. [22 J. & S.], 223), which was somewhat similar to the case at bar, Sedgwick, Ch. J., in delivering the opinion of the court, said: “ There remains to be said that the defendant was not correct in his claim, that the value of the land was to be deemed the amount of consideration recited m the deed to plaintiff, that is, $1. The warrantor is liable according to the value of the land at the time of the warranty, which is conclusively fixed at the amount of the consideration of the sale. (Rawle on Cov., 243; Sedgwiclc on Dam. [5th ed.], 168, and the cases cited in these books from the State of New York.) Evidently, the warrantor should at least return such part of the consideration as he appropriated, as represents the value of the land to which he save no title.”

In Dickson v. Desire's Administrator (23 Mo., 166), it is said : “ On a covenant of warranty or seizin, where the transaction remains between the original parties, the measure of damage is the value of the land at the time of the sale, as fixed by the parties themselves in the price given and received. When, however, the original grantee has sold the land to another, and tliei second purchaser lias been evicted, the damage he has sustained is the value of the land at the time of his purchase, and his right of recovery against the first grantor upon the original covenant must, of course, be limited to his actual loss, although it cannot exceed the liability of'the first vendor to his immediate grantee.”

If, therefore, the rule be, either, that the plaintiff should recover the value of the premises, or, that he should recover the amount of the consideration named in the defendant’s deed, it would seem to follow that the defendant could not justly complain, as the plaintiff recovered only the value of the premises, which was less than the considei'ation named in the defendant’s deed.

The appellant, however, makes the further claim that the plaintiff was only entitled to recover the amount of the mortgage, interest and costs, and at most the judgment should have been only for the sum of $635.52. It is said in Devlin on Deeds (§ 934): “If the eviction is by a paramount lien, damages may be recovered to the extent of the lien, if this does not exceed the amount that conld be recovered for an eviction for failure of title.” Many cases are cited as sustaining this doctrine. When, however, the cases cited are examined, it wi'l be found that they arose in States where the local laws, regulating the foreclosure of mortgages, provide that even after entry by the mortgagee upon the land for that purpose, it may still be redeemed within three years or some other period by payment of the mortgage debt and costs, and, hence although the purchaser may have been actually evicted by the mortgagee, yet, if the latter held the possession only under a conditional judgment, or if it be otherwise defeasible by payment of the amount due on the mortgage, with costs, the damages will be limited to that amount. In other words, what is held in these cases is that so long as the purchaser still has a legal right to regain the estate by payment of a certain amount, he can recover no greater sum. This is the doctrine held in the cases of Norton v. Babcock (2 Met., 510; White v. Whitney (3 id., 89); Donahoe v. Emery (9 id., 63); Tufts v. Adams (8 Pick., 547); Furnas v. Durgin (119 Mass., 500); Curtis v. Deering (12 Me., 499); Lloyd v. Quimby (5 Ohio St., 262). And when we examine the case of Winslow v. McCall (32 Barb., 241), which is a case much relied upon by the appellant, we find that it establishes the same doctrine. In that case the eviction was by a mortgagee in possession. The mortgage had not been foreclosed, and hence there had been no absolute failure of title. Under these circumstances, the court held that the measure of damages was the amount due upon the mortgage, with interest from the commencement of the action. We cannot see how these cases aid the appellant, as in the case at bar there had been a foreclosure which resulted in an absolute failure of the plaintiff’s title.

On the other hand, in the case of Elder v. True (32 Me. ,104), where a mortgagor of land conveyed premises by a deed of warranty, it was held that his grantee was under no obligation to redeem, and if the mortgage was foreclosed, the measure of damages to be received by the grantee was the value of the land and interest. In Stewart v. Drake (9 N. J. L. [4 Halsted], 139), it was held that where, by reason of an antecedent mortgage, the grantee was evicted, .the rule of damages for a breach of covenant for quiet enjoyment :and warranty was the same as if the grantee had been evicted by reason of a total want or failure of title in the grantor, that is, the •amount of the consideration money, with interest.

In Miller v. Halsey (14 N. J. L. [2 Green], 48), it was held that the refusal of a plaintiff to buy in a paramount title or incumbrance, •even when offered to him upon moderate terms, was no waiver of the covenent for quiet enjoyment, and would not bar a recovery thereon after eviction.

In Wilcox v. Campbell (106 N. Y., 325), it was held that the rule which requires a party exposed to injury or damage to make the loss as small as he reasonably can, does not require the grantee to advance the money to pay a mortgage for the purpose of protecting himself or his land.

We think the authorities bearing upon the question do not sustain .the claim of the appellant, and that, as the rule adopted by the court was as favorable to the defendant as lie was entitled, tlie judgment in this action should not be disturbed.

We, therefore, are of the opinion that the judgment should bo affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J. :

text:
    EMILY A. MOULTON, Respondent, v. NEHEMIAH N. CORNISH, Appellant.

      Strict foreclosure — not abolished — holder of a second mortgage not made a party to• the foreclosure of a first mortgage- — costs of the former action — purchase with knowledge of the existence of a second mortgage — improvements made upon the-premises subsequent to such sale.

    One Kellogg mortgaged three farms, of which he subsequently conveyed the equity of redemption to one McIntosh. McIntosh gave another mortgage upon the-premises, which was assigned hy tlie mortgagee to one-Comisli. Emily A. Moulton, the owner of the first mortgage, heretofore brought an action to foreclose-her mortgage, but failed to make Cornish a party thereto, and upon the sale purchased one farm, the two remaining farms being bought by others.
    In an action of strict foreclosure brought by Emily A. Moulton to compel Cornish to redeem, if he was found to be the owner of the second mortgage:

      Held, that as the defendant Cornish had not demurred, and as the relief sought did not impair his lien upon the other farms, and as his answer did not set up that the purchasers of the other farms were necessary parties to the action, he could not defend the action upon the ground that the purchasers of the other farms were not made parties to this action.
    That the remedy by strict foreclosure has not been abolished by section 1626 of the Code of Civil Procedure.
    That, upon a redemption under a strict foreclosure, the defendant should not be compelled to pay the costs of the former foreclosure.
    That if the defendant desired to redeem, he should not be compelled to give a guaranty, executed by a responsible person and to be approved by the court, that he would complete the redemption within the time and in the manner provided by the judgment.
    That where the plaintiff bought the premises upon the foreclosure sale with knowledge of tlie existence of the lien of Cornish, she should not be allowed to-compel him, as a condition of redemption, to pay -‘the value of any improvements made thereon by her in good faith.”

      Appeal by the defendant Neliemiah N. Cornish from a judgment, entered in the office of the clerk of Oneida county on the 21st day of April, 1890, after a trial at the Oneida Special Term, with notice of an intention to bring up for review upon such appeal all the exceptions taken on the trial; also all those taken and filed to the refusals to find as requested, and also all those taken and filed to the decisions and findings of the court and the judgment entered. The judgment required the defendant to redeem the premises described in the complaint within a certain period of time or be forever barred from the right to redeem.
    On the 10th of May, 1877, Amy H. Kellogg executed and delivered to Charles S. Symonds, as assignee in bankruptcy, her bond, conditioned for the payment of the sum of $8,650, and as collateral security. for said bond she and her husband executed and delivered to Symonds, as assignee, a mortgage covering three farms, situated in the town of Floyd, known as the Klock, Eells and Tavern farms. The mortgage was recorded in the clerk’s office of Oneida on the 9th of Juue, 1877, and on the 29th of December, 1877, the bond and mortgage were assigned to the plaintiff. On the 29th of January, 1878, Amy H. Kellogg and her husband conveyed the premises described in the mortgage to Ichabod C. McIntosh, by a conveyance which was recorded on the 5th of February, 1878. On the 1st of February, 1878, McIntosh executed and delivered to Miriam M. Kellogg a mortgage covering the premises, as security for the payment of $2,500, which was recorded on the 13th of February, 1878. By a written instrument, bearing date December 26, 1879, Miriam M. Kellogg, in consideration of $2,300 transferred the said $2,500 mortgage to the defendant, and the instrument was recorded December 29,1879. On the 16th of May, 1886, the plaintiff commenced an action in this court to foreclose her mortgage, and a lis pendens was filed and a decree of foreclosure, naming the sheriff as a referee, was obtained and entered on June 15, 1889. The plaintiff obtained a search from the clerk’s office, and by mistake or excusable inadvertence omitted to make the defendant Cornish a party to her foreclosure proceedings. At the sale made by the referee the plaintiff “ bid off the parcel known as the Tavern farm for $6,095, and said sum was credited on the amount due her under the decree.” The referee made a conveyance of the farm to the plaintiff, “ and she and her tenants have been in possession thereof ever since the 16th day of March, 1S89.” On the sixth of April the sale was confirmed by u an order of this court, the said Cornish appearing and opposing.” The jirage before whom the action was tried found, among other things, “ that at the time of the commencement of this action the defendant Cornish claimed, and by the said search appears, to be the owner of the said $2,500 mortgage, given by said McIntosh to Miriam M. Kellogg, as aforesaid, and that his right of redemption had not been barred and foreclosed, and that said $2,500 mortgage is an existing lien on said lands.” . As a conclusion of law the court found that the defendant, “ being the owner of said mortgage for $2,500, given by Ichabod C. McIntosh to Miriam M. Kellogg, February 1, 1818, to secure the payment of $2,500, holds the same as an existing lien on the lands bid„off by the plaintiff on the foreclosure of the mortgage of Amy II. Kellogg to Charles 8. Symonds, as assignee hereinbefore mentioned, subsequent to the lien created thereby, and the same was not cut off by such foreclosure, the said defendant not having been made a party in said action or having had an opportunity to be heard in court.” The judge also found that the defendant was entitled to redeem, and prescribed certain conditions upon the exercise of such right, and prescribed the manner of ascertaining the amount to be paid by the defendant upon making such redemption, and, among other things, required him to pay the costs of the foreclosure made in the former action upon having such redemption, and allowed the defendant six months in which to pay the said bill, the amounts to,be ascertained by a íeferee to be appointed; and further found that if the said defendant shall desire to redeem the lands bid off by the plaintiff upon her said mortgage, he shall, within ten days from the service of a copy of the judgment herein upon him, or his attorney, give the said plaintiff notice of his said desire and intent to do so. Such notice shall be accompanied with an agreement by the defendant that he will complete such redemption within the time and in the manner in the judgment herein provided, and the performance of said agreement (the defendant being shown to be wholly irresponsible) by him shall be guaranteed by some responsible person whose responsibility shall be approved by a justice of this court, and which guarantee shall accompany said agreement; and that if the defendant should not pay and perform, according to tlie conditions stated in the findings, within six months, as aforesaid, “ then it is ordered and adjudged that the said defendant, and all persons claiming under him, after the filing of the notice of pendency of action, do stand and be forever barred and foreclosed of and from all right, title, interest and equity of redemption of, in and to the said mortgaged premises so bid off by said plaintiff, to wit, the Tavern farm, so-called, and every part thereof; all liens he has upon said lands so bid off by the plaintiff by virtue of said mortgage of $2,500, or any other existing at the time of the commencement of said foreclosure action; are to be adjudged as cut off and foreclosed, and the plaintiff to hold the title thereto free from all such liens.” It was also provided, in case such redemption was made “ costs are not awarded to either party, except the costs of a referee, which shall be paid one-half by either party.”

      Samvuel Keeler and K. G. Mooli, for the appellant.

      O. M. & G. K Dennison, for the respondent.
   Hardin, P. J. :

(1.) We think the defendant cannot successfully complain that the purchasers of the Klock and Eells farms were not made parties defendant in this action. He took no objection to the complaint on that ground by demurrer, and the relief sought in this action does not impair his liens as to those farms ; and, besides, his answer does not set up that such purchasers are necessary parties to this action. (White's Bank of Buffalo v. Farthing, 101 N. Y., 344.)

(2.) From an early day in the Court of Chancery, in England, it has been held that by the payment or tender of money, though after the day named in the mortgage, the mortgage should be considered as redeemed in equity, the same as it would have been at law if the payment had been made before the day ; and, following that practice, bills were “ filed by mortgagees for the extinction or foreclosure of this equity, unless payment were made by a short day to be named. The settled English practice is for the decree to order the amount due to be ascertained, and the costs to be taxed, and that upon the payment of both within six months, the plaintiff shall reconvey to the defendant; but in default of payment within the-time limited, that the «aid defendant do stand absolute!}' debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises.” (Clark v. Reyburn, 8 Wall., 323.)

In Bolles v Duff (id N. Y., 474) this practice was referred to in the following language : “ Strict foreclosures are now rarely pursued or allowed in this State, except in cases where a foreclosure has once been had and the preñases sold; but some judgment-creditor, or person similarly situated, not having been made a party, has a right to redeem. As to him, a strict foreclosure is proper. In general, a mere strict foreclosure is a severe remedy. It transfers the absolute title without any sale, no matter what the value of the premises.” This practice was recognized in Peabody v. Roberts (47 Barb., 92); Kendall v. Treadwell (14 How Pr., 167); Salmon v. Allen (11 Hunn, 32).

It is insisted in behalf of the appellant that section 1026 has cut off the equity practice as it has existed pnor to the Code. We find in Thomas on Mortgages (p. 732, § 1143), and in Wiltsie on Mortgages (p. 929, §( 833), it is suggested that such possibly may be the effect of section 1626 of the Code; neither of the authors, nor does the appellant in this case, cite any authority for holding that such is the effect of section 1626 of the Code of Civil Procedure. That section is one of a series of sections prescribing for the ordinary action of foreclosure; notwithstanding that section, we think the remedy, as it has heretofore been used by courts of equity, remains. (Wolff v. Ward [Mo.], 16 S. W. Rep., 161.) The plaintiff in this case is not seeking a sale of the mortgaged premises. In the foreclosure of her prior mortgage a sale has been had and the title of the mortgagor has passed to her as a purchaser under that sale. She comes before the court stating that she has acquired the title to the premises in virtue of her mortgage and the proceedings for foreclosure thereof, and, in effect, asks the defendant to redeem the premises from her mortgage, and that the amount equitably due him by reason of the premises be ascertained, and that the defendant be given a period of six months in which to make such redemption. She further asks the equitable intervention of the court that, in the event he fails to redeem in the manner and within the period in-e-scribed, he be forever foreclosed. If a sale had been asked for by the plaintiff it would have been obnoxious to the objections stated, by Davis, J.,in Salmon v. Allen (11 Hun, 32). In speaking of such a sale, he says: “ That course would tend to throw the title into great confusion, for there can be no doubt that, as between the owner in fee and the other persons who were made parties to the foreclosure of Mrs. Allen’s mortgage, her title to the lots under the foreclosure is complete, and her mortgage is extinguished by the conveyance to her of the fee under the decree. All the right that the plaintiff has, therefore, in equity, under his junior mortgage, is the right to redeem the premises from Mrs. Allen by paying off the amount of her mortgage and interest, unless she choose to come in and pay the amount of his mortgage for the purpose of perfecting her title. * * * We think it ivas not proper to have adjudged a sale of the fee of the premises subject to the lien of Mrs. Allen’s-mortgage, as the judgment in the court below does, but that, instead of such a judgment, a decree of redemption should have been entered in accordance with the established practice in equity. (Gage v. Brewster, 31 N. Y., 218; Vroom v. Ditmas, 4 Paige, 526 ; Vanderkemp v. Shelton, 11 id., 28 ; Benedict v. Gilman, 4 id., 58 ; Pardee v. Van Anken, 3 Barb , 534 ; Brainaffd v Cooper, 10 N. Y., 356 ; People v. Beebe, 1 Barb., 379 ; 2 Barb. Ch. Pr. [Rev. ed.], 193 et seq., and notes.)”

The case before us is unlike Walsh v. Rutgers Fire Insurance Company (13 Abb., 33); that was an independent action by the second mortgagee to foreclose his mortgage, there having been a. foreclosure of a prior mortgage without naming him as a party thereto. Doubtless, at any time prior to the sale had in virtue of the proceedings upon the first mortgage, the defendant here might have maintained an action to foreclose his mortgage, and forced a sale in respect thereto, and had a sale and decree in such proceedings. (Bache v. Purcell 6 Hun, 518.)

(3.) We are of the opinion that the trial court fell into an error in requiring the defendant, in the case of redemption, to pay the costs of the former action in foreclosure.

In volume 1, book 2 of Blackstone’s Commentaries, page 158, it is said : “But here again the courts of equity interpose, and though a mortgage be thus forfeited and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor, at any reasonable time, to reealL or redeem his estate, paying to the mortgagee his principal, interest and expenses, for otherwise, in strictness of law, an estate worth 1,000 pounds might be forfeited for non-payment of 100 pounds or a less sum. This reasonable advantage allowed to mortgagors is called the equity of redemption, and this enables the mortgagor to call on the mortgagee, who has j>ossession of his estate, to deliver it back and account for the rents and profits received on payment of his whole debt and interest, thereby turning the mortum into a kind of vwum vadwm But, on the other hand, the mortgagee may either compel the sale of the estate in order to get the whole of his money immediately, or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be forever foreclosed from redeeming the same; that is, to lose his equity of redenqhion without possibility of recall.”

The defendant was not a party to that action, and he has never become liable to pay costs, and we think it was improper to impose the payment of costs of that action as a condition of exercising the right of redemption. We think the question was fully settled in Gage v. Brewster (31 N. Y., 218). (See, also, Peabody v. Roberts, 47 Barb., 92; Belden v. Slade, 26 Hun, 635.)

(4.) We think the requirement to furnish a guarantee was unusual, and -was an exaction beyond any precedent we have discovered in the numerous cases pertaining to a redemption. The remedy is sufficiently severe and harsh (Bolles v. Duff, supra), without having attached to it any unusual exactions.

(5.) We think the plaintiff’s purchase of the Tavern farm was not subject to the mortgage of the defendant, the title and interest which she derived was as of the time of the date of her mortgage.

(6.) We recognize the rule that this court has the power to review the facts and consider the evidence, and to determine whether the findings accord with the weight of the evidence. (Finch v. Parker, 49 N. Y., 1; Godfrey v. Moser, 66 id., 250.) We have looked into the evidence, considered the same in connection with the findings, and we do not feel called upon to disturb the findings of fact made by the trial judge. The same are supported by the evidence, and are apparently in accord with the weight thereof.

( 7.) It is found that at the sale 011 the 16th of March, 1889, and before the sale had been made, the referee publicly announced the conditions and terms of the sale, and among the conditions he stated that the property was sold free and clear of any and all right of dower, charge or lien upon the same, “ except that it is claimed by one Nehemiah N. Cornish that he is the owner by assignment of a mortgage made by Ichabod C. McIntosh to Miriam M. Kellogg, covering the premises, dated February 1, 1878, to secure the payment of $2,500, which mortgage was recorded in Oneida county clerk’s office February 13, 1878, and is a record lien upon said mortgage premises. Cornish lias not been made a party defendant to this action.” It is also found, “ That after such public announcement of said condition and terms of sale subject thereto, the plaintiff became the purchaser at the said sale of that portion of the mortgaged premises known as the Tavern farm, so called, for $6,095, particularly described in the complaint in this action.” It is also found “that the plaintiff so purchased the same at said sale, with the knowledge of the lien of defendant’s said mortgage, and the order aforesaid to make him a party defendant as aforesaid, and that he had not been made such party defendant.” Ry the decision made at the trial it was provided that “ the value of any improvements made thereon by her in good faith,” be ascertained ; and the defendant be required to pay the same as one of the conditions of redemption.

In Mickles v. Dillaye (17 N. Y., 84), Judge Henio, in stating the rule applicable to the right of redemption, says : “ The general rule is, therefore, understood to be that upon taking the account in a suit for redemption against a mortgagee in possession, he is to be charged with the rents and profits, and be allowed only for necessary reparations. (Moore v. Cable, 1 Johns. Ch. R., 387; Quin v. Brittain, 1 Hoff. Ch. R., 353 ; Story’s Eq., § 1016.)”

In Benedict v. Gilman (4 Paige, 62), improvements were allowed but it appeared “ that the complainant was ignorant of the existence of these judgments until after he had made permanent improvements upon the premises to a considerable extent,” and it was said “ under such circumstances, it would be inequitable and unjust to give the defendants the benefits of those improvements without compelling them to pay an equivalent therefor. The ease would .-have been different, if the complainant had made the improvements with a full knowledge of the.defendants’ equitable right to redeem. (See Moore v. Cable, 1 Johns. Ch. R., 385)”

In Wetmore v. Roberts (10 How. Pr., 56), the rule laid down in Benedict v. Oilman {supra), was referred to approvingly, and the improvements were allowed “on the ground that Claxton, having purchased and inlproved as owner and in good faith, .and the interest of the plaintiff at the time of the sale being •of no value, it would be unjust for a court of equity to take from ..the former and give to the latter the value of these improvements.” (See opinion of Hand, J., 10 How., 56.) In Mickles v. dillaye (17 N.Y., 84), Judge Denio refers to Wetmore v. Roberts approvingly..

In considering the rule as to when improvements may be allowed it was said in Hubbell v. Moulson (53 N. Y., 228), by Andrews, J., if the party in possession “ has made permanent improvements upon ■the laud in the belief that he was the absolute owner, the increased value by reason thereof may be allowed to him; ” upon the doctrine .so stated lie refers to Mickles v. Dillaye (17 N. Y., 80). According to the finding which we have quoted, the plaintiff in the case before us had knowledge of the existence of the defendant’s mortgage at ■the time of her purchase, and the rule as stated in Hughes v. Edwards (9 Wheat., 500), by Washington, J., should be applied. He says ■“ the claim, therefore, of a purchaser with notice, to have the value of the improvements, which may have been made from the fruits of the property itself, deducted from the price at which the property may be sold, seems to the court too unreasonable to admit of a serious argument in its support. No case was cited, nor has this court met with one which affords it the slightest countenance.”

In Moore v. Cable (1 Johns. Ch., 387), Chancellor Kent observed: “ Many a debtor may be able to redeem by refunding the debt and interest, bnt might not be able to redeem under the charge of paying for the beneficial improvements which the mortgagee had been able and willing to make. The English courts have always looked with jealousy at the demands of a mortgagee, beyond the payment of his debt,” and in that ease his direction to the master to compute the principal and interest due. on the mortgage contained a provision “ that he allow for the expense of necessary reparations, if any, but ■not for improvements in clearing part of the land.”

We think the Special Term fell into an error in directing the referee to ascertain the value of any improvements made by the plaintiff since her purchase of the mortgaged premises. If the foregoing views are adopted, it follows that the decision and judgment should he modified by eliminating therefrom: (1.) The provision as to the guarantee to be furnished by the defendant. (2.) The provision as to the costs of the former action. (3.) The provision as to the improvements made upon the Tavern farm since tlie purchase thereof at the foreclosure sale by the plaintiff, and after such modifications are made an affirmance of the order.

Martin and Merwin, JJ., concurred.

Decision and judgment modified in accordance with this opinion, and as so modified affirmed, without costs of this appeal to either party The form of judgment may be settled before Hardin, P. J., upon five days notice.