text:
    Strong v. Dollner & Potter.
    The plaintiff was the grantee of premises otifcupied by the defendants, at the time of his purchase, under a lease from the grafitor. The deed to the plaintiff Was subject to a mortgage Upon the premises, and was unrecorded. The defendants had attorned to the plaintiff, and paid rent to him. Subsequently the mortgage was foreclosed, but the plaintiff was not made a party to the suit. The premises were sold by a master, on the 7th of April, and bid off by M., under whom the defendants claimed J but M. did not pay the purchase money, until the 5th of May, when he took a deed from the master, and had it recorded. In an action by the plaintiff to recover the rent due on the 1st of May next after the sale ; Held, that his claim to the rent was unaffected by the foreclosure proceedings, and that his title remained valid Until it was divested by the recording of the master’s deed.

      Held also, that the recording of the master’s deed had no relation back to the time of the sale, so as to divest rights of action previously accrued to the plaintiff by virtue of his unrecorded deed.
    Although the recording act makes an unrecorded conveyance void as against a subsequent purchaser in good faith, for value, whose deed is recorded first, it does not avoid the former as of a time prior to the execution of the latter. It does not transfer to such subsequent purchaser rights in respect of the property, against third persons, which were vested in the owner holding under the unrecorded deed, prior to the execution of the subsequent conveyance.
    A bid at a master’s sale, its acceptance by the master, and the payment of a per centage upon the purchase money, work no change in the title, even in equity The purchase is inchoate and defeasible until the acceptance of the title, on his part, and the confirmation of the report of sale, on the part of the court.
    March 15 ;
    April 21, 1849.

      This was an action on the case for use and occupation of the premises No. 166 Front street, in the city of New York, for one quarter due May 1, 1847. The amount claimed was $250 The declaration contained three counts, one for use and occupation generally; the second claimed to recover by virtue of a lease of the premises from B. W. Strong to the defendants, for one year from May 1, 1846, at a rent of $1000, and an assignment of the lease from Strong to the plaintiff, executed October 13, 1846 ; the third, claiming it as the grantee of Benjamin W. Strong, by deed of the premises, bearing date October 7, 1846. The defendants pleaded the general issue.
    Upon the trial of the cause, it appeared in evidence by the testimony of Dollner, one of the defendants, that the premises in question were hired by the defendants from B. W. Strong, for one year from May 1, 1846, at a rent of $1000, under a written lease ; that the first quarter’s rent was paid to the lessor; that the second and third quarters were also paid, and as appeared by the receipt book of the defendants, receipts were given signed by B. W. Strong for Peter R. Strong, the plaintiff, but the last quarter’s rent had not been paid. The plaintiff then offered in evidence, a deed of the premises ftom B. W. Strong to the plaintiff, dated October 7, 1846, duly acknowledged, without any covenant, and subject to a mortgage upon the premises, given by the grantor to Susan Remsen, for $10,550, payable April 20, 1846. This deed had never been recorded.
    The plaintiff thereupon rested, and the defendants’ counsel read in evidence a deed of the premises in question, from Philo T. Ruggles, master in chancery, to Thomas H. Mills, dated May 5, 1847, executed pursuant to a sale of the premises made by him April 7, 1847, under a decree for the foreclosure of the mortgage of B. W. Strong to Remsen, which mortgage, by sundry assignments, had become vested in William J. Schenck. It further appeared, that the bill of foreclosure and notice of lis pendens were filed December 31,1846, and sundry judgment creditors of B. W. Strong were made parties to the suit, but the plaintiff in this suit was not; that a decree of foreclosure was entered March 9, 1847, which was enrolled April 14, 1847. The defendants then offered in evidence, a lease of the premises from Thomas H. Mills to the defendants, dated April 13, 1847, for one year from the first of May thereafter, and proved the same by Dollner, one of the defendants, who also testified, that at and before the delivery of the lease, Mills requested the defendants to pay him the rent due on the 1st of May.
    The plaintiff’s counsel objected to this testimony as irrelevant, and because it was of a date before Mills had acquired title to the premises.
    The defendants having rested, the plaintiff’s counsel called Philo T. Ruggles, who testified that the master’s deed was not delivered till the 5th of May, and that the purchase money was paid on that day; that there had been no demand for the deed, or offer to pay the money by Mills before that day. It appeared by the testimony of the solicitor of Thomas H. Mills, that the delay in closing the contract of sale was owing to some impediment in the title, and that Mills was ready at any time to pay the purchase money, and that 10 per cent, had been paid by him to the master, on the day of the sale.
    The testimony having been closed, a verdict was taken for plaintiff, for $266 75, subject to the opinion of the court on a case.

      J. Lynch, for the plaintiff.

      A. C. Bradley, for the defendants.
   By the Court. Sandford, J.

The defendants attorned to the plaintiff, after the lessor conveyed to him, and he is clearly entitled to receive the rent which became due on the first of May, 1847, unless the defendants have shown that his title was divested before that day. It is claimed that this is shown by the foreclosure and the master’s deed. It is not supposed that the decree of foreclosure, or even the master’s sale, affected the legal title; and the master’s deed was not delivered, until the fifth day of May. Nor is this the whole difficulty in the defendant’s point. The decree, the sale, and the deed, all combined, did not affect the plaintiff’s title in the least; because he was not made a party to the foreclosure suit. (Watson v. Spence, 20 Wend. 260.) It is only because the mater’s deed was recorded, and the plaintiff’s was not, that the former operated to divest his title. Therefore, looking at the facts as they existed when the price was paid by Mr. Mills and the deed delivered, there was no reason whatever to prevent the plaintiff from collecting this rent. His right to it was as perfect as it was to any other thing .in action in his hands overdue. At the end of the next quarter, it is true, the tenants could have successfully resisted his right to recover the rent, not because the decree and sale affected him, but because during the quarter, the recording of Mr. Mills’ deed made his unrecorded deed void as against the former.

The plaintiff’s right was cut off by the recording of the master’s deed. All that went before, failed to have that effect. The deed was perfect, and as operative as the decree could make it, upon its delivery by the master; yet up to that stage of it, the plaintiff’s legal title had not been touched. The act of recording the master’s deed, which had the effect to give Mr. Mills the better title, derives its force solely from the recording act, which has no relation back to divest rights of action accrued to the owner holding by the unrecorded deed. For example, if the plaintiff, on the second of May, had commenced an action of trespass for injuries done on the preceding day to the freehold of these premises, it would have been no defence on the trial, that on the fifth of May, Mr. Mills had received a deed from a former owner, which he had placed on record, and the plaintiff’s deed never having been recorded, his title was divested in favor of Mr. Mills.

Although the recording act makes an unrecorded conveyance void against a subsequent purchaser in good faith for value, whose deed is recorded first; it does not avoid the former as of a time prior to the execution of the latter. It does not transfer to such subsequent purchaser, rights in respect of the property against third persons, which were vested in the owner holding under the unrecorded deed, prior to the execution of the subsequent conveyance.

The defendants insist that the equity of Mr. Mills was superior to that of the plaintiff, and therefore the recording should have effect by relation, to the date of the master’s sale. We do not perceive that there is any such superior equity. The plaintiff was the owner of the equity of redemption, and was compelled to pay interest on the mortgage debt until the entire purchase money was paid in by Mills on the fifth of May; or which is the same thing, such interest was taken out of the proceeds of the sale, the surplus of which presumptively belonged . to the plaintiff. On the other hand, Mr. Mills could at any time have withdrawn from his bid, on account of the defect of parties in the foreclosure; he did not elect to complete his purchase until the fourth of May; and he did not pay the price till the fifth. .

• It was argued with great ingenuity, that the master’s deed related back to the sale by which the contract of purchase was made, and in equity dates from the agreement to purchase. If this were conceded, it might fall short of reaching the legal title, which is alone in question in the action for use and occupation. But we think the proposition cannot be maintained.

- The bid at the sale, its acceptance by the master, and the payment of the ten per cent., wrought no change in the title, even in equity. The ten per cent, was a mere security for the good faith of the bid, and it would have been refunded, if the purchaser had refused to complete, on account of the defect in the proceedings. His purchase was entirely inchoate and defeasible, until the acceptance of the title on his part, and the confirmation of the report of sale on the part of the court. (See Brown v. Frost, 10 Paige, 247.) The contract was not complete as to the purchaser himself, until he paid the whole price. If he had paid the price on the 20th of April, the day fixed for that purpose in the terms of sale, he would from that time have been the equitable owner of the premises, and as against the parties to the foreclosure, might have intercepted the rents falling due afterwards. But to do this, he would have required an order of the court of chancery, operating upon the parties in the suit.

As he did not pay till the fifth of May, we think he cannot, even in equity, be. deemed the purchaser as of a date prior to the time when he was bound to complete his purchase. The. rule in the English court of chancery is, that the purchaser is entitled to rents from the quarter day next prior to his payment of the purchase money. (Hoffman’s Master’s Pr. 231; 2 Dan. Ch. Pr. 913 ; and the cases cited.) And it makes no difference that the money has been ready from the time the premises were struck off, and has been lying unproductive. (Barker v. Harper, Cooper’s Rep. 32; 1 Barb. Ch. Pr. 530; 2 Smith’s Ch. Pr. 177.)

In the case of the sheriff’s deed, cited by the defendants, the seizure and sale of the land does not divest the title of the debtor. The payment of the purchase money and the deed must concur; and there is no case where the doctrine of relation, in respect of such deeds, has been extended back to a period anterior to such payment. Catlin v. Jackson, ex dem. Gratz, 8 Johns. 520, 550; Lathrop v. Ferguson, 22 Wend. 116.) In the case last cited, Cowen, J., says, the whole doctrine is a fiction, to prevent fraud; and if a person neither having, nor assuming to exercise, any control in preventing the performance of the contract or sale, acquire a legal and executed right, which is prior in time, he is deemed prior in law and equity, and entitled to hold without prejudice from the fiction.

Again, if there were any relation to the time of sale, or the day fixed for completion, such relation was perfect when the price was paid, the master’s deed delivered, and the sale confirmed. Yet stopping there, Mr. Mills would,not have been able to obtain possession of the premises from the plaintiff and his tenants, much less to divest the rent due to the plaintiff. It was the recording of his deed alone, that enabled him to obtain possession.

These considerations are conclusive against giving to the master’s deed the retrospective operation claimed for it, and the plaintiff is entitled to judgment.

Judgment for plaintiff.


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Bell, Survivor, &c. v. Leggett’s Executors.
    Under the bankrupt act of 1841, a friend of a person applying for his discharge as a bankrupt, may buy the debt of an opposing creditor, so as to remove such opposition ; provided the bankrupt himself is neither a party, nor privy to the arrangement, and his effects are not to be made liable for the purchase.
    Accordingly, where a bankrupt debtor applied for his discharge under the act, which discharge was opposed, and thereupon the father-in-law of the petitioner, without his knowledge or connivance, arranged with the opposing creditors to give them his own notes, in satisfaction of their claims, and to take an assignment of their judgments against the bankrupt, as soon as the bankrupt should receive his discharge; and, in pursuance of that arrangement, the opposing creditors withdrew their opposition, and the bankrupt obtained his discharge ; Held, that such notes were valid, and upon a sufficient consideration, and that an action lay thereon.
    March 14, 15;
    April 28, 1849.
    This was an action of assumpsit brought by the plaintiff, as survivor of Jacob Harvey, upon two promissory notes made by Samuel Leggett, deceased, dated December 12,1845, one for the sum of $579 37, payable in six months, and the other for the sum of $586 41, payable in nine months. The defendants are the executors of the last will and testament of Samuel Leggett.
    Upon the trial, the notes were read in evidence, and proved. The plaintiffs proved by the counsel of the testator, that he received from the testator the notes in suit, together with several others, to be delivered to the plaintiffs upon their executing to him assignments of certain judgments which they held against Barney Corse, a son-in-law of the testator; that Corse was at that time an applicant for a discharge under the bankrupt law, and the notes were to be delivered when he should receive his discharge. The notes were delivered to Mr. Gerard, the counsel for the plaintiff, after the discharge of Corse, and the assignments of the plaintiffs’ claims against Barney Corse were delivered to the counsel for the testator. The assignments bore date November 12, 1846.
    The plaintiffs then rested, and the defendants offered to show by .way of d^npe, that the consideration of the two notes in suit was the withdrawal by the plaintiffs of their opposition to the discharge of Barney Corse from his debts, under the bankrupt law, which discharge Corse was then applying for, and which the plaintiffs opposed as judgment creditors. The plaintiffs objected to the evidence, but the court admitted the evidence.
    It appeared in evidence, on the part of the defendants, that Barney Corse filed his petition in bankruptcy on the 23d of February, 1842. That the plaintiffs, with two other judgment creditors, filed their dissent, June 12, 1842, and also their objections to the discharge of the petitioner. The opposing creditors proved their debts in due form. The ground of objection, on the part of the opposing creditors, was that a debt of $100,000, set up by Barney Corse upon a bond executed to his father, was a false and fictitious debt. The issue thus raised was tried before a jury, in June, 1843. Upon this trial, the jury disagreed.
    A venire de novo was awarded, and a second trial had, when the jury again disagreed. A third trial resulted in a verdict against Mr. Corse. An attempt was made to get rid of the verdict, which was unsuccessful. Subsequently, and in the year 1845, the testator, Samuel Leggett, left with his counsel, the notes in suit, with other notes, which were to be delivered to the plaintiff and the other opposing creditors, upon Corse receiving his discharge, and on such creditors executing to him assignments of their claims against Barney Corse.
    The counsel of Samuel Leggett testified, that the counsel of the opposing creditors knew of the notes having been left with him, and the terms on which they were left; that they consulted together about the best way to get the judge to grant the discharge ; and finally, that a consent was given to withdraw all opposition. The discharge was obtained, April 27, 1847. Afterwards, and on the 20th of May, the notes were delivered by the counsel of the testator, and he received the assignments. The witness further testified, that he stated to the counsel of the opposing creditors the terms on which he had received the notes, and that all objections to the discharge of Corse were „ thereby removed.
    It was admitted, that Barney Corse was not a party to the arrangement made by Samuel Leggett, and that it was made without his connivance, collusion, or Knowledge.
    It was contended, on the part of the defence, that the notes being given in consideration of the withdrawal of opposition on the part of the plaintiff, to the discharge of Barney Corse, were void, as being against public -policy.
    The judge, reserving the questions of law, submitted the facts to the jury, to determine whether the withdrawal of the opposition of the plaintiff to the discharge of Barney Corse under the bankrupt law, formed a part of the consideration of these notes, instructing them, if they found the fact so to be, to bring in a verdict for the defendants. To which decision and charge, the plaintiff excepted. The cause was thereupon submitted to the jury, who found a verdict for the defendants.

      T. C. T. Buckley, and J. W. Gerard, for the plaintiff.
    I. The purchase of a judgment from an opposing creditor, by a stranger, without the knowledge, privity, or assent of the bankrupt, and the consideration not to come from the bankrupt or his assets, is not rendered void, either by the bankrupt act, or by any principle of the common law, as being against public policy.
    II. Whether the time on which the note is to run, given by the stranger for the consideration of the judgment, dates from the day of the purchase, or the day when the bankrupt may get his discharge, makes no difference. If the note is good in the first case, it is equally so in the second. In both cases, the motive to continue the opposition would fall to the ground by the act of purchase. The notes were not given for any bonus for withdrawal of opposition, or even for the amount of the debt, but for less than 15 per cent, of the debt. (5 Taunt. 117 ; 1 Pr. Wms. 620.)
    III. The cases in which notes were given for withdrawing opposition to an insolvent or bankrupt’s discharge are void, are where the agreement is made by the bankrupt, or with his privity, or where his assets are to go the creditor for his withdrawal of his opposition. (Kaye v. Bolton, 6 T. R. 34; Bankrupt Law of 1841, sec. 4 ; Jackson v. Davison, 4 B. & A. 691.)

      As a perfect test of the legality of the notes, could Barney Corse’s discharge be defeated on account of the transaction, by any creditor ? If not, the notes cannot be impeached. (3 Denio, 10; 1 Ibid. 195; 2 Metcalf, 57; 3 Story R. 507; 10 Alabama R. 523.)
    IV. If the law is otherwise, and as the judge ruled it, there is no proof that the withdrawal of the opposition was part of the bargain or consideration of the notes; such inference cannot be raised from the mere fact that the notes were to be dated when the discharge was obtained.
    V. No such inference could be deduced from the acts of the counsel of the opposing creditors.
    VI. On a question of the transaction being against public policy, the court and jury should look at the whole transaction.
    After a third trial, the jury found that the bankrupt had admitted the mortgage as a false and fictitious debt. In July, 1845, the highest possible evidence was given, that that could not have been, for the very mortgage was foreclosed, and property to the amount of $100,000, was transferred under it, and the validity of the mortgage unquestioned. It was after this, that the plaintiffs sold their judgments, and the opposition was withdrawn by the counsel.
    VII. The acts of the counsel of Messrs. Bell and Harvey, after the month of December, 1845, could not take away the prior vested rights of the plaintiffs.
    If the transaction was good when the notes were made, no subsequent acts or declarations of counsel could affect the plaintiffs ; especially when they were without their consent or knowledge.
    VIII. The verdict was rendered by the jury, under a misapprehension that it was only a matter of form, and that the court was to settle the cause as on a case reserved. The jury were equally divided, and declared in open court, that they never could agree.

      Wm. Kent, for the defendants.
    I. The debt of the plaintiff against Barney Corse having been duly proved under the bankrupt proceedings, the remedy of the plaintiff was thenceforth confined exclusively to the dividend under the bankrupt proceedings; and the property assigned by Corse being obviously insufficient to pay the assignee’s expenses, the judgments of the plaintiffs were of no value whatever; and therefore the notes given by Samuel Leggett were without consideration.
    II. The notes in suit having been given in consideration of the withdrawal of opposition by the plaintiff to the discharge of Barney Corse, under the bankrupt act, the notes are void, as contrary to the spirit of the bankrupt act, and as against public policy and public justice.
    If the last mentioned consideration was not the sole consideration of the notes, yet they are void.
   By the Court. Sandford, J.

The principle has long been established in this state, by a series of authorities, that a security given by a friend of an insolvent, pending his application for a discharge from his debts, to induce a hostile creditor either to join in the petition for such discharge, or to withdraw his objections to its being granted, is void, as being contrary to the policy of the insolvent law. All the cases to which we have been referred, arose under the statute for discharging an insolvent from his debts, upon the application of two-thirds of his creditors; and in all, the arrangement was made by the insolvent himself, or through his intervention.

Our decisions were founded upon those made in England, under the bankrupt act 5 Geo. 2, by which the debtor was prevented' from obtaining his certificate, unless four-fifths of his creditors united in a petition that it should be granted. The act also made it unlawful for the bankrupt, or for any person, tó give any money or property to a creditor to induce him to sign the certificate. The subsequent bankrupt acts reduced to three-fifths the proportion of the creditors necessary for a discharge. Under these acts, it was held in England, nearly a century ago, and such has been the law ever since, that a bond given by a relative of the bankrupt to a creditor, who would not otherwise sign the certificate, was illegal and void. The decisions were in accordance with the positive enactment of the statute; but when a case arose, not within the provision, though against the policy of the act, Lord Tenterden said the security was not void, and a bona, fide holder might recover upon it. (Birch v. Jervis, 3 Carr. & P. 379.)

It will be observed, that in respect of the conjunction of a large proportion of the creditors in making a certificate effectual to discharge the bankrupt, the English bankrupt acts are entirely analogous to our statute for the discharge of an insolvent debtor, on the petition of two-thirds of his creditors. And the principle upon which preferences and purchased assents, should be deemed invalid, is equally applicable to both. There are cases in which securities have been adjudged void; but it is not, under the circumstances, necessary to advert to them in detail. All the authorities are founded upon one or the other of the grounds, that the payment or security made to the favored creditor, is contrary to the provision of the statute, detrimental to the rights or interests of third persons, oppressive upon the insolvent, or a fraud upon his other creditors.

In the instance of the bankrupt certificate in England, and the petition of two-thirds of the creditors under our insolvent act, the signature of each creditor by turn, has its influence upon others to whom the instrument is presented. It may induce some to concur by its example of generosity, and may lull the vigilance of others by its apparent assent to the justice of a discharge.

In instances of composition deeds and the like, which are parallel in principle, as well as in those last referred to, if the sum paid or promised to the favored creditor, be from the bankrupt’s own funds, it is a direct fraud upon the other creditors, in diminishing the dividend théy would otherwise receive. Or, if given after the discharge, on a promise or obligation made previously, it is an unfair advantage taken of the debtor ; and may be open to the remark, that it diminishes the chance of all the other creditors of receiving payment out of his future acquisitions, if he should be so honest as to discharge his moral .obligations. The late bankrupt act of 1841, has no provision analogous to those upon which we have commented, contained in our insolvent law and the English bankrupt acts. In the proceeding adverse to the bankrupt, each creditor was at liberty to act for himself, and could withdraw his proceeding, if he thought proper. When the bankrupt was the applicant, each creditor resisted for himself; and before he could oppose at all, it was necessary that he should prove his debt.

So far as the authorities adverted to, proceed on positive law, or on the supposed influence of signatures and names upon other creditors, it is evident they are not applicable in principle to the bankrupt act of 1841. The same thing may be said of all those cases which arose upon payments made, or securities given, out of the effects of the bankrupt or insolvent, obligatory upon him.

To apply these considerations to the case before us. The three judgment creditors had proved their demands, and opposed the discharge of Corse, with a prospect of ultimately defeating it. It seems probable there was no good cause for this opposition, but that is not material, as we regard the point. The testator, without the connivance or knowledge of Corse, and without any collusion on his part, arranged with the three creditors to give the testator’s notes for a portion of their debts, on receiving an assignment of the judgments ; the notes and assignments to be delivered by the depositary to the creditors whenever Corse should be discharged. The principal consideration for the notes, was the withdrawal of their opposition to his discharge. But how does this affect their validity ?

If when the notes were signed by the testator, in December, 1845, he had, for the same considerations, actually delivered them to the creditors, and received the assignments, there would have been no good objection to a recovery upon the notes. The testator, as the owner of the judgments, could withdraw the opposition founded upon them, and the agreement of the creditors to withdraw their opposition when they had ceased to have a right to make any, would be altogether idle and unmeaning.

Are the notes any the less valid, because they were to be retained by the depositary until Corse was actually discharged ? We have seen that the case is not within the principle of the insolvent act requiring two-thirds, and of the English bankrupt certificate.

It is certain that the arrangement was not oppressive upon Corse, because he did not know of it, and was not to participate in it. It was no fraud upon his other creditors, for it is not shown that there was any other creditor who had ever put himself in a condition to oppose the discharge. If there were others who had proved their debts, and had stood back, relying upon these three creditors to fight the battle at their own expense, for the benefit of all the creditors ; we do not perceive that such others had any right to insist on the continuance of the warfare, or would be entitled to any sympathy, if it were terminated without their concurrence.

There is no aspect of the arrangement, in which it was detrimental to the rights or interests of third persons. It legitimately affected no one, except the testator, who was satisfied with the consideration he received. As to its sufficiency, we will speak presently.

Although, on the first statement of the case, we were under the impression that the spirit of the adjudged cases was against the plaintiff, we are satisfied on an analysis of their principles, that there is no good reason for holding that the acceptance of the notes was contrary to the policy of the bankrupt act, or against public justice.

We have found no authority which holds that a note thus given, without the procurement, connivance, or knowledge of the bankrupt, and in no manner affecting his property, present or future, is void. On the contrary, there is a decision of a distinguished judge, which in principle, appears to sustain an obligation given under such circumstances. In Winsor v. Kendall, (3 Story R. 507,) it was decided, that a payment made by a friend of a bankrupt, in contemplation of bankruptcy, out of his own funds, or in such a manner that the creditor had a right to suppose he was paying out of his own funds, and not out of those of the bankrupt, was not a fraudulent preference, within the meaning of the bankrupt act.

In England, where the bankrupt acts have been far more stringent than either of those enacted by Congress, it has been held, that a creditor may sell his debt to a friend of a bankrupt debtor, upon the terms that the creditor should sue out a commission of bankruptcy against the debtor. (Fry v. Malcolm, 5 Taunt. 117.) And we perceive no good reason, why under the act of 1841, a friend of the bankrupt might not buy the debt of an opposing creditor, so as to remove such opposition; provided the bankrupt himself was neither a party, or privy to the arrangement, and his effects were not to be made liable for the purchase.

It is made a point, that the notes were without consideration. The assignment of the judgments was a sufficient consideration. We have no means of knowing, either that they were wholly worthless, or what circumstances induced' the testator to estimate them as valuable.

A new trial must be granted; the costs to abide the event of the suit.

       In Fox v. Paine, (10 Alabama Rep., New Series, 523,) it was held, that the fact that the bankrupt, or some one for him, paid money to a creditor, to induce him to withdraw his objections to the bankrupt’s discharge, is not such a fraud as will render the certificate inoperative. The court considered the circumstance that under the English bankrupt acts, it was necessary that four-fifths, and after-wards three-fifths, of the creditors to consent in writing to the bankrupt’s discharge, as being the ground of the decisions relied upon by the defendant’s counsel, and as distinguishing the case before them from those decisions.


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

text:
    Brady v. The Supervisors of the City and County of New York.
    A claim for services rendered as counsel for the board of supervisors of a county, and its various committees, is a county charge.

    No action for the recovery of a county charge, can be maintained against a county, or the board of supervisors.
    Suits against a county can be brought only for such causes of action or controversies, as cannot be settled and adjusted by the board of supervisors, in the exercise of their ordinary powers, such as torts, malfeasances of county officers, and the like.
    The supervisors of a county, as such, or as a board, are not a body corporate, and possess no powers as a corporation. The corporation is the county.
    (Before Oakley, Ch. X, and Vanderpoel and Sandford, X X)
    March 5, 6, 7;
    May 12, 1849.
    Motion to set aside report of referees. The action was brought by the plaintiff to recover compensation for professional services rendered to the defendants during the years 1845, 1846, and 1847, while the plaintiff was counsel to the corporation. The declaration contained a special count adapted to the case, and also the common counts for work and labor. The plea was the general issue. By an order of the court, the cause was referred, on the 31st day of March, 1848, to John L. Mason, Benjamin W. Bonney and Nelson Chase, counsellors at law.
    Upon the trial before the referees, it appeared in evidence, that the plaintiff was the general legal adviser of the defendants, and had been so from May 1st, 1845, to May 1st, 1847, and that during that time, at the request of the defendants, he had attended various meetings of the board of supervisors; that questions of law, involving important principles, had frequently arisen, upon the decision of which large amounts depended; and that these various questions were referred to the plaintiff, who had given his opinions upon the same; and that the services thus rendered by the plaintiff, required much time and labor in their performance.
    It was contended, on the part of the defence, that the action being in form against the bounty, could not be sustained; because the services, if any, were a county charge; that the remedy in such cases, is pointed out by statute; that the claim must be presented to the board of supervisors, who are authorized and empowered to settle the same, and that, in the exercise of this power, they act as a judicial body. That if such an action could, be sustained, there was no evidence of any resolution of the defendants employing the plaintiff as counsel; and that the mere fact of the plaintiff’s attending meetings of the board, was not sufficient evidence of retainer. It was also contended, that admitting the fact of a retainer, the sum claimed by the plaintiff was not legally recoverable.
    Various other points were made on the defence, which are not material to be reported.
    The referees decided, that the action was maintainable, and that there was sufficient evidence of retainer, and reported in favor of the plaintiff for the sum of $2475 00.

      J. T. Brady, and S. Sherwood, for the plaintiff.
    I. The plaintiff having, as a counsellor at law, rendered services to the defendants, on their employment, has a right to recover whatever is a reasonable compensation for those services, unless some legal impediment to such recovery exists.
    II. There is no such legal impediment. At common, la W; the plaintiff would clearly have a right of action against the defendants ; because any individual, who, at the request of another, renders him service of a lawful nature, can legally recover compensation in a court of justice.
    That the defendants are supervisors would not, in reference to the common law right of the plaintiff, make any difference whatever.
    They are a corporation, or quasi corporation, and, as such, can sue and be sued. This has been adjudged in relation to overseers of the poor, as well as supervisors. (Todd & M‘Cord v. Birdsall, 1 Cowen, 260; Olney v. Wickes, 18 J. R. 122; King v. Butler, 15 J. R. 281.)
    They have the same right as a natural person to employ counsel, and are under the same obligation to pay him. The right to sue in such a case as this, has never before been questioned.
    There is nothing in any statute which can deprive the plaintiff of his common law right of action against the defendants. Every county in this state is declared by statute to be a corporation, but only capable of exercising its corporate powers by the board of supervisors. (1 R. S. 365, secs. 2, 3.) This removes all doubt as to the capacity of defendants to sue and be sued. Express authority to bring suits against counties, by impleading the supervisors as defendants, is given in 2 R. S. 473, sec. 95.
    The provision (1 R. S. 386, sec. 4,) requiring that “Accounts for county charges of every description shall be presented to the board of supervisors of the county to be audited by them,” is not an obligation imposed on those having claims against counties, but a mere legislative direction as to the proper authority to which those having such claims may present them* Construed in its exact language, it would make the presentation of such claims compulsory, even if the holders thought proper to abandon them. The words'“ shall or may,” when used in a statute, are only imperative when public interests and rights are concerned ; but when a statute declares that an individual or individuals shall or may do certain acts, or have a certain remedy, which is intended for his or their own benefit, he or they have a discretion to do the act or pursue the remedy, or not. (Malcom v. Rogers, 5 Cow. 188.)
    The statute in pari materia relating to “ legal proceedings in favor of and against counties,” (1 R. S. 384, sec. 1,) shows the correctness of the position above taken. It provides, that where any “ cause of action” exists between a county and an individual, the like proceedings may be had, and the same judgment, as in other suits or proceedings of a similar kind between individuals and corporation. This statute regulates the proceedings in such suits, and provides (sec. 6) for the recovery of costs, but does not make it conditional to a party's rights that he shall first present his claim to be audited. In the case of district attornies, where fees and expenses are made a county charge, there is a specific provision of the statute requiring him to give the supervisors notice of the taxation of his costs. (2 R. S. 752, sec. 9.) But there is no section of any statute requiring a private citizen who has a lawful demand against the county or supervisors, to postpone his action for such demand until they have acted upon it.
    The plaintiff had no remedy by mandamus. The supreme court have distinctly settled, in several cases, that where the supervisors omit to pay or to audit, a party has a complete remedy by action, ahd that for this very reason, no mandamus will be allowed. (Ex parte Lynch, 2 Hill, 45 ; People v. Lawrence, 6 Hill, 244; Ex parte Firemens' Ins. Co., 6 Hill, 243.) The writ of mandamus has, by all the later decisions of our supreme court, and court for the correction of errors, been restricted to what is supposed to be its only legitimate office, viz.: to compel an inferior tribunal to act where action is a legal duty, but not to direct such action. It is perfectly clear that no mandamus could compel the supervisors, either to allow the claim of the plaintiff in this suit if they thought proper arbitrarily to reject it, putting him to his action; nor could the supervisors be compelled to allow the plaintiff any particular amount. Even if it should be held, that in order to have an account against a county audited, a party should, or might, present it to the supervisors, and even if the party, on their failure or refusal to audit, could obtain a mandamus, yet the party’s common law right of action would not be impaired, because it is perfectly well settled, that “ If a statute give a remedy in the affirmative, (without a negative, express or implied,) for a matter which was actionable at the common law, the party may still sue at common law, as well as upon the statute; for this does not take away the common law remedy.” (Almy v. Harris, 5 J. R. 175 ; Farmer's Turnpike Co. v. Coventry, 10 J. R. 389; Crittenden v. Wilson, 5 Cow. 165 ; Troy Turnpike Co. v. McChesney, 21 Wend. 296.)
    The case in 5th Gowen, will be found very strong to this point.
    III. The defence attempted, that the plaintiff rendered the services in question as counsel to the corporation, and without any intention to charge the defendants,"is without foundation, or even pretext, in fact or in law.
    The defendants are a corporation, as already shown, by statute, representing the county of New York, and composed of the mayor, recorder and aldermen of the city of New York. As a corporation, the defendants may possess property, and exercise various powers enumerated in the revised statutes. (1 R. S. 364, sec. 1.)
    The corporation of the city of New York, entitled “The Mayor, Aldermen and Commonalty, of the city of New York,” is a municipal corporation, created by charter, with additional powers conferred by statute, and with jurisdiction over the city of New York for municipal purposes. To the county corporation the recorder belongs, but not the commonalty. In reference to the city corporation, the converse is the case. The financial officer of the defendants is the county treasurer, and the reason why the chamberlain executes the duties of that office, is that the statute makes him treasurer. (1 R. S. 367, sec. 17; Ibid. 370, sec. 29.) The comptroller of the city of New York is a charter officer belonging to the city corporation, without any power over the property or finances of the county, except where it is expressly conferred on him by statute.
    From the preceding detail of the various characteristics of the city and county organizations, it is apparent that neither of them is under any obligation, or has any right to furnish the other with a lawyer, any more than the corporation of this city could perform this kindness for the county of Kings. The plaintiff never agreed with the corporation of the city of New York, that in consideration of a compensation to be paid by them, he would render any legal services to the board of supervisors ; and any such agreement, if any made, would be as void as absurd, there being no consideration to support it any more than if a policeman, in consideration of his salary, should, agree to perform duty in New Orleans for the benefit of the latter city.

      F. B. Cutting, for the defendants.
    I. The county of New York is a quasi corporation, created for the purpose of government, with special powers. It has power to sue and be sued in the name of the supervisors, who are the officers for the time being of the corporation. (1 R. S. 356, 364, 384, 385, 416; 2 R. S. 569, sec. 94; 26 Wend. 69; Ward v. Co. of Hartford, 12 Conn. Rep. 404; Kent’s City Charter, 209; 6 Hill, 244.)

      ' II. The supervisors are also a quasi corporation, created for special purposes, and with special powers. But they have no corporate capacity for their, own benefit. All their corporate powers are in trust, to be exercised for the use and benefit of the county. They may, in some cases, sue and be sued, but the action must be brought by and against them individually, specifying in the process, pleadings, and proceedings, their name of office ; and if their name be not mentioned, it is a ground of nonsuit at the trial. (2 R. S. 569, sec. 92, 94, 96, 99, 106, 111; Supervisors, &c. v. Stinson, 4 Hill’s Rep. 136; Commissioners &c. v. Peck, 5 Hill, 215; Jackson v. Hartwell, 8 Johns. Rep. 422; Jansen v. Supervisors of Kingston, 1 Cowen’s Rep. 670 ; Grant v. Franchor, 5 Cowen’s Rep. 309 ; 1 Cowen’s Rep. 260, note a.)

    III. This action is not, therefore, in form, against the supervisors, and cannot be maintained against them; but being in form against the county, it must be considered as a suit against the county, and as such, it cannot be sustained ; for
    (1.) The services rendered by the plaintiff, if any, for which this action is brought, are a county charge, having been rendered (as alleged) for the use and benefit of the county; and although a county may sue and be sued, yet it cannot be sued for any account or claim which is a county charge, and which it is the duty of the board of supervisors “ to examine, settle, and allow.” The remedy in such cases is pointed out by statute. The claim must be presented to the board of supervisors, with a just and true statement in writing of the nature of the services performed, and of “ the time actually and reasonably devoted •to the performance of such services,” to be audited, settled, and allowed by them. (1 R. S. 439, sec. 1, 2, 3, and 4; 1 R. S. 418, sec. 4, sub. 2; see also cases cited under next point below.)
    (2.) The supervisors, as officers of the county, are clothed with judicial authority to “ examine, settle, and allow all amounts chargeable against the county,” and “to administer .oaths to any person presenting an account or claim to be audited,” and concerning any matter submitted to the board. (1 R. S. 418, sec. 4, sub. 2; 1 R. S. 420, sec. 8; Laws of 1836, chap. 506, sec. 3; Laws of 1845, chap. 180, sec. 22; Supervisors of Albany, 12 J. R. 414; Supervisors of Dutchess, 9 Wend. 508;
      Supervisors of New York, 1 Hill, 362 ; Merrit v. Lawrence, 6 Hill, 244; Ex parte Lynch, 2 Hill, 45 ; Supervisors of Warren, 1 Howard Sp. Term Rep. 116.)
    (3.) In giving judicial powers to the board of supervisors “ to examine, settle, and allow” all claims for county charges, the legislature intended to protect the county against the exorbitant claims and the innumerable suits that might, and no doubt would otherwise be brought against the county, nor is there any injustice in this, since all persons performing services for the use and benefit of a county, must be presumed to know and assent to the mode pointed out by the statute for the collection of their claims.
    (4.) The uniform practice, in cases like the present, has been to proceed by mandamus; and a mandamus will not lie where there is a legal remedy. (10 Wend. 363.)
    IT. But should it be considered that a suit can be maintained to recover claims for . county charges, still the plaintiff is not entitled to recover in this suit.
    (1.) The testimony shows affirmatively that the board never adopted any resolution to employ the plaintiff as counsel, and there is no evidence that they ever adopted any resolution authorizing any individual or committee thereof to employ him. The statute no where gives power to a member, or a committee of the board, to contract liabilities and charges against the county, for the professional services of a lawyer. (1 R. S. 364, sec. 1, 2, 3, 4; compare with Statutes relating to Towns, 1 R. S. 357, &c.; Conall v. Town of Guillford, 1 Denio, 510; Hotchkiss v. Le Roy, 9 John. 142, as to evidence of retainer.)
    (2.) If the committees, or any member thereof, consulted the plaintiff and requested him to give opinions and draw reports and resolutions, it was for their convenience and without the authority of the board. The plaintiff’s claim for such services, if any he has, is against individual members of the committees, or persons employing him, and not against the county, nor against the board, who, for aught that appears, never knew that he was consulted or employed by such committees or persons. (19 Johns. Rep. 252.)
    (3.) The mere fact that the plaintiff attended the meetings of the board, (if a contract could be implied, as in the case of individuals,) is not sufficient evidence of employment to create an implied assumpsit; as the meetings of the board are public. (1 R. S. 420, sec. 6.) He may, if observed, have been considered a mere spectator. At all events it cannot be presumed from this, that the board knew that he was in their service at the time, so as to create an implied assumpsit to pay therefor.
    (4.) Nor were the notices sent to him any evidence of employment ; inasmuch as those notices were usually sent by order of the comptroller, who was not a member or any officer of the board ; and when not sent by his direction, it was by the direction of the chairman of some committee ; as they were delivered by the messenger without any direction on the subject. Such notices, therefore, were not authorized by the board and were not binding upon them; it no where appearing that the board ever directed him to be notified, or that they knew that he was so notified. Besides, the weight of evidence shows that when so notified, the notice was given to him as the counsel to the corporation of the city, and not otherwise.
    (5.) There is no evidence of any retainer in the case of Lynch and Parish. The statute requires that when a suit is commenced against the supervisors, a statement thereof shall be laid .before the board for their direction. (1 R. S. 439, sec. 3.) There is no evidence that this was done in these cases, nor in the cases of taxation of costs. All the evidence then, of a retainer, which has been offered, is the mere fact that the plaintiff appeared in those suits and proceedings on behalf of the board; that is not sufficient; especially when the evidence on the part of the defendants goes to show that he had charged these very services to the corporation of the city of New York, whose counsel he was at the time, and who were as much interested in the subject matter in which his services were rendered as the county. (Hotchkiss v. Le Roy, 9 Johns. Rep. 142.)
    Y. But even if the evidence were sufficient to establish the fact that the plaintiff was employed, still, it also shows that he was employed by a branch of the common council, and as the counsel of the common council, upon matters connected with and directly concerning the business of the city corporation ; and it was his duty as such counsel to render those services for the salary and other compensation which was paid to him by the corporation, through the board of supervisors ; and he has no right to make an extra charge for such services. They were all included within his contract with the corporation. He has, therefore, been fully paid the claim which he seeks to recover in this cause. (Rev. Ord. 1838-9, p. 13, &c.; Phœnix v. Supervisors of New York, 1 Hill, 362.)
    VI. The evidence of Mr. Blunt as to the value of the services of the plaintiff, from hearing the evidence read, was incompetent, and should be excluded, and also all those parts of the evidence which refer to the contents of resolutions of the board or of its committees.
   By the Court. Oakley, Ch. J.

The defence relied upon, is two fold:

First. It is insisted that the services of the plaintiff, for which the action is brought, were rendered by him in his character as ■counsel of the corporation, appointed by the common council of the city of New York.

The written opinions and reports prepared by the plaintiff and exhibited on the trial, appear to have been signed by him with the official addition of counsel to the corporationand it is claimed by the defendants, that the supervisors of, the city and county of New York, are in fact and in substance, the same as the corporation of the city of New York ; as they govern the same territory and the same people, and represent identically the same interests ; and that the salary of the plaintiff, as counsel of the corporation of the city, ought to be held to cover his services in this respect.

We have not much considered this point, and in the view we have taken of the case, it is not necessary for us to decide it.

Assuming that the plaintiff stands towards the board of supervisors, in the same attitude that any other professional gentleman would, who had performed the same services, and that he is entitled to recover, if any person could recover; the next ground of defence is, that for services of this character, no action at all can be sustained against the supervisors of the county, or rather against the county.

The plaintiff, from the points submitted, appears to have entertained the idea, that the supervisors, or the hoard of supervisors, are a body independent of the county which they represent ; and as such may incur liabilities, and be subject to suits, as a board or corporate body.

This we deem erroneous. The supervisors as such, or as a board, are no body corporate, and possess no powers as a corporation. The corporation is the county.

The revised statutes, (1 R. S. 364,) under the head “ Of the Powers, Duties and Privileges of Counties, and of certain County Officers,” proceed to erect a system, regulating this whole subject.

The first section of title first, declares that each county, as a body corporate, has capacity:

1. “ To sue and be sued in the manner prescribed by law.

2. To purchase and hold lands within its own limits, and for the use of its inhabitants, subject to the power of the legislature over such limits.

3. To make such contracts, and to purchase and hold such personal property, as may be necessary to the exercise of its corporate or administrative powers; and

4. To make such orders for the disposition, regulation, or use of its corporate property, as may be deemed conducive to the interests of its inhabitants.”

The second section enacts that no county shall possess or exercise any corporate powers except such as are enumerated in that statute, or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given.

The third section is as follows: All acts and proceedings by or against a county in its corporate capacity, shall be in the name of the board of supervisors of such county; but every conveyance of lands within the limits of such county, made in any manner, for the use or benefit of its inhabitants, shall have the same effect as if made to the board of supervisors.”

And section four provides, that the powers of a county as a body politic, can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted.

Looking at these provisions of the revised statutes, it will be perceived that every county is a corporation with defined and restricted powers, to be exercised in a particular manner, viz.: by the board of supervisors itself, or by some person in pursuance of a resolution by them adopted. There is no grant of corporate power, to be used by or in behalf of a county, in any other mode.

In the city and county of New York, the aldermen of the city, together with the mayor and recorder, constitute the board of supervisors, which exercises the powers conferred by this chapter of the revised statutes.

Proceeding with its provisions, the fourth section of title second gives to the board of supervisors of every county, at their annual meetings, or at any other meeting, power, “ To examine, settle, and allow all accounts chargeable against such county; and to direct the raising of such sums as may be necessary to defray the same(Subd. 2.) To audit the ac-

counts of town officers,” &c.; (Subd, 3.) By the eighth section, the chairman of the board, is clothed with power to administer an oath to any person, concerning any matter submitted to the board, or connected with their powers or duties.

Each board is entitled to have a clerk who is to record all the proceedings of the board; and it is made one of his duties, to make regular entries of all the resolutions and decisions of the board, on all questions concerning the raising or payment of moneys. He is also to preserve and file all accounts acted upon by the board. (I 9.) The books and records of the boards of supervisors are open to public examination, without charge. (§ 11.) The third title of the same chapter of the revised statutes, (1 R. S. 384,) is entitled, Of legal proceedings in favor of and against counties.” The first section provides, that if any controversy or cause of action shall exist between the counties, or between a county and an individual, such proceedings shall be had, at law or in equity, for trying and finally settling the same, in like manner, and with like effect, as in similar suits or proceedings between individuals and corporations. By the second section the county, in all such suits and proceedings, shall sue or be sued in the name of the board of supervisors thereof, except where county officers are, by law, to sue in their name of office, for the benefit of the county. . When a suit is commenced against a county, the chairman or clerk of the board, must lay before the board of supervisors, a full statement of the suit, for their direction in regard to its defence. (§ 3.) The sixth section provides for the recovery of costs, and that judgments recovered against counties, or against county officers in their name of office, shall be a county charge, and when levied and collected, shall be paid to the person to whom the same shall have been adjudged.

These provisions as to suits, are further carried out in the subsequent chapter of the revised statutes, entitled, “ Of proceedings in special cases,” in the title, “ Of proceedings by and against corporations, and public bodies, having certain corporate powers, and by and against officers representing them.” (2 R. S. 444,- 457, 473.) Section ninety-two of title four permits actions to be brought “ by the supervisors of a county;” but actions against counties, when allowed by law, are to be brought against the board of supervisors thereof, (s 95.) Such actions as are allowed against the officers enumerated in section 92, must be brought against them individually, specifying their name of office; (§ 96;) and it is therefore inapplicable to suits against a board of supervisors, or the supervisors of a county, as such. It is further enacted, in the same article and title, that no execution shall issue on judgments recovered against the board of supervisors, and it prescribes the manner of obtaining payment of such judgments, by laying the same before the board of supervisors, to be by them added to the tax to be laid on the county. (§ 102, 103, 107.)

It will be observed that by these various provisions of law the board of supervisors is clothed with ample power, to examine, settle, and allow all accounts, chargeable to the county; or in other words, which may be county charges. And the county may be sued for certain claims, or in respect of certain causes of action or controversies, as expressed in the third title before cited. (1 R. S. 384.)

It is claimed by the plaintiff, that the first section of this title, enables individuals to bring suits against a county, for any claim, cause of action or controversy whatever; although the same, may be an account, which might be allowed as a county charge.

We consider that a different construction must be given to the third title; and that it was intended to provide a remedy against the county, for such causes of action, (and no other,) as could not be presented to and examined and allowed by the board of supervisors as county charges. Of this class, would be claims for the malfeasances of county officers ; and claims arising from torts, for which the county may be liable.

“ Such controversy,” in the first section of that title, means as we think, such a claim or cause of action as cannot be settled and adjusted, on the application of the party, in the exercise of the ordinary powers of the board of supervisors, and which is not a county charge until it passes into judgment.

The inquiry is, whether in cases (like the plaintiff’s,) an action can be brought at all, against the board of supervisors. Here no account has been presented to the board, for audit and allowance. The suit rests on the distinct claim, that every one who has a demand against a county, on an implied contract, may sue the county for its recovery; and that any one who has submitted such a demand .to the board of supervisors, for their examination and allowance, may abandon his pursuit there, and commence a suit against the board as “representing the" county.

The maintenance of this claim will necessarily lead to interminable suits against the counties, for every description of accounts and demands. We think it was clearly the intention of the legislature, to protect counties from such suits. The board of supervisors, as organized by law, consists of a body of men, ■elected by the people to represent their respective towns and wards. They have no interest against claimants, nor any feeling on the subject, other than that of every judge and every citizen. The statute virtually makes this body, a board of arbitration ; to which all parties, having claims against their respective counties, other than those of the indefinite character before referred to, must submit such claims for examination, audit and allowance ; and it allows no appeal from their decision. They are a judicial body, constituted by law to decide on all matters of account between individuals and the public body composing the county which they represent.

If, in this case, the plaintiff had contracted specially with the board of supervisors, to receive such compensation for his services as they might allow, the arrangement would have been binding upon him. As the law prescribing the mode of ascertaining claims of the like character exists, we consider the services of the plaintiff as having been rendered under the law ,* and that the law, in effect, is incorporated into the contract. The plaintiff must be presumed to know the law, and to have contracted in reference to it.

It is not to be doubted that the plaintiff’s claims are county charges, and might have been submitted to the board of supervisors for allowance. He claims by force of an implied contract of the board, for services which were beneficial to the board, and thus to the county.

The supreme court had the statutes on this subject under consideration in Bright v. Supervisors of Chenango, (18 Johns. 242; Mallory v. Supervisors of Cortland, and Doubleday v. Supervisors of Broome, (2 Cow. 583;) and The People v. Supervisors of Albany, (12 Wen. 257.)

Those cases establish this general principle, that wherever services have been rendered, which are beneficial to a county, and no specific compensation is provided for the same by law, they shall be deemed contingent charges against the county.

The services of the plaintiff are precisely of that character.

It will be seen by reference to the statute regulating the powers of county officers, (1R. S. 385, § 3,) that after specifying various liabilities and demands, which shall be deemed county charges, the fifteenth subdivision includes “ The contingent expenses necessarily incurred for the use and benefit of the county.” These are to be examined, settled and allowed, by the board of supervisors; and the fourth section of the same title, contains the general direction before mentioned, that accounts for county charges of every description shall be presented to the board to be audited by them.

It is said the statute is directory only, and if the plaintiff’s claim fall within the description of a county charge, it was optional with him to submit it or not, to the board of supervisors.

We cannot give such a construction to the statute. The fourth section is peremptory in its terms, that all accounts for county charges shall be submitted to.the board; and it is an essential part of the whole system, framed with the intention that no action at all should be brought against a county for such services.

There is no hardship in the provision of the statute thus construed. The services in this case were rendered voluntarily, as the plaintiff might have declined to render them, if he did not approve of the mode of compensation provided by law.

We find no adjudged case, where it has been held that an action may be sustained against the supervisors of a county, for such claims. There are many cases reported, in which writs of mandamus have been issued to boards of supervisors. There is none of those, where the amount to be audited was not fixed by statute, or where the amount claimed was not admitted; and where the sole question was, whether the claim presented to the board was a county charge; and in those cases, the supreme court has ordered the supervisors to proceed and audit the claim.

The plaintiff refers us to the case of Ex parte Lynch, (2 Hill, 45.)

There the supreme court refused to issue a mandamus, to the supervisors of the city and county, because the relator had an action against the corporation of the city of New York, inasmuch as the statute directed the corporation to pay him a specified salary. It was not intimated that he could maintain a suit against the county, or the board of supervisors. And where that court has granted the writ of mandamus, it has been because there was no remedy by action. (The People v. Supervisors of Columbia, 10 Wen. 363.)

We find no case in the books, where the idea is presented, of bringing an action ugainst a county, or against a board of supervisors, for such a claim as the plaintiff’s; or where it appears to have been thought of before.

This disposes of the case before us, and it is perhaps not necessary that we should notice another view of the matter, which is urged by the defendants; that the board of supervisors, by their acts, can charge their county only in the mode prescribed by the statute. That here the action on which the plaintiff’s claim is based, was wholly informal and ineffectual; the board as a body, never having acted at all, or adopted any resolution on the subject, and never having authorized any committee to engage the professional services of the plaintiff.

It may well be questioned, whether their action as a board, or of their committees, as proved in this case, could charge the county as a body politic. But we need not decide the point.

The plaintiff must fail, on the ground that his claim is a county charge, for which no action can be sustained against the board of supervisors. The report of the referees must be set aside, with costs to abide the event of the suit; and the rule directing a -reference will be discharged. The parties can readily turn the special report of the referees into a bill of exceptions, as upon a trial at nisi prius, and a non-suit there ordered, if they choose to do so, with a view to ulterior proceedings.


text:
    Fleetwood v. The City of New York. Post v. The same.
    Where the owners of city lots which had been sold for the non-payment of void assessments, redeemed the same by paying to the street commissioner the amounts for which the lots were sold, with interest and costs; Held, that the payments being voluntary, and not made under a mistake of fact, or of law, could not be recovered back, in an action against the city.
    The muniments of title, upon an assessment sale, consist of several proceedings, all of which are indispensable to its validity; and if one be wanting, no title is conferred.
    In the absence of either of the proceedings forming an essential part of the record of an assessment title, such title is void on its face.
    A void assessment constitutes no cloud upon the title ; and the payment of such an assessment, by the owner of the property, cannot be considered compulsory.
    The cases respecting duress of personal property, in which it has been held that payments made for its relief are involuntary, and may be recovered back, are inapplicable to real estate.

      Where a party, without any legal compulsion or duress of goods, yields to the assertion of an adverse claim, by paying the amount, he cannot detract from the force of his concession, by protesting against the legality of the claim. In such a case the payment nullifies the protest.
    (Before Oakley, Ch. J., and Vandekpoel and Sandfoiid, J. J.)
    March 6, 9,12 ;
    May 12, 1849.
    Motions to set aside report of referee. The first of these causes was an action of assumpsit, brought to recover the sum of $2527 22, paid by Fleetwood, the plaintiff, to the defendants, Feb. 27, 1845, to redeem several lots of ground belonging to him, from a sale thereof, made by the defendants on the 13th of June, 1843, under an alleged assessment for filling the lots.

    The cause was referred to William Mitchell, Esq.
    Upon the trial before the referee, it appeared in evidence that the plaintiff had paid the amount for which this action was instituted to the street commissioner, accompanying the payments, by a protest against the legality of the assessment. It also appeared that the plaintiff was the owner of the lots in question, and became such in January, 1845, and that at the time of his purchase, nothing was said, or known by him in reference to any assessment having been made.
    It also appeared, by the testimony of the clerk of the common council, that he had searched in his office for an ordinance to fill in the lots in question said to have been passed in December, 1834, but that none could be found; that he had searched the original papers themselves, and could not discover any such ordinance.
    The redemption clerk in the street commissioners office, at the time of the alleged passage of the ordinance in question, testified that it was his duty to take charge of redemptions for assessment, and to preserve the evidence of liens; that he had made diligent search, and could discover no papers in reference to this assessment, or the sales of the lots in question for such assessment. That the street commissioner’s office was the place where all original assessments were desposited.
    It also appeared that at the time of the payment of the assessment in question, the plaintiff was negotiating for a loan by mortgage upon the premises, but the payment of the assessment was required as a condition precedent, it being regarded as a cloud upon the title.
    It appeared in evidence, on the part of the defendants, that in the case of filling lots, the course of procedure was, for the city inspector to make out an ordinance which was submitted to the common council and the mayor, for approval. This was termed a common ordinance. After approval, the next step was to notify the owner or occupant of the premises, of the passage of the ordinance, giving them a definite time to perform. In case of their failure, a special ordinance was then passed, which recited, that for the more speedy execution of the work, it should be done by the common council. The city inspector would then advertise for proposals, and the contract was given to the lowest bidder. The surveyor made actual measurement of the filling of each lot, and returned a statement of the amount.
    John Sickles, city inspector from 1835 to 1837, testified that these ordinances were never entered, unless endorsed with the approval of the mayor.
    The defendants’ counsel produced in evidence two books entitled, “ Ordinances for lot 6,” and “ /Special ordinances for lots, vol. 1,” from the office of the city inspector, and offered to read out of the same ordinance 463 of common ordinances, and 528 of special ordinances. The same were read, subject to objection. These ordinances related to the lots in question, and covered the whole ground, but merely had the name of “ J. Morton, Clerk,” printed at the foot of them, and did not appear to have been approved by the mayor.
    Mr. Forbes, who was city inspector at the time of the filling of the lots in question, testified that the course already detailed, was pursued in reference to the lots of the plaintiff, and that he never proceeded to fill in lots without first having the ordinance. That it was not always customary for the mayor to sign each separate ordinance ; but as was frequently the case, where there were several in a package, he would only sign the first one.
    The assessment list for filling the lots in question was also produced in evidence. The city surveyor testified to having surveyed the filling of the lots, and having made out the amount from which the apportionment was made, which was handed to the comptroller. Other testimony was introduced, which it is not material to set forth; it being sufficiently referred to in the opinion of the court.
    The referee reported in favor of the plaintiff, $3172.
    The record of these causes, in which Post was the plaintiff, was a similar action to the other, and the facts were the same, except as otherwise mentioned in the opinion of the court. The referee reported in favor of Post for the amount paid by him to redeem his lots, with interest.

      J. G. Ferguson and E. Sandford, for Fleetwood.
    R. Mott and D. P. Hall, for Post.

      Willis Hall and A. J. Willard, for the defendants.
   By the Court. Sandford, J.

The referee has decided in these cases, that when the money was paid by the respective plaintiffs to the street commissioner, the corporation was not legally entitled to receive it. There were several distinct grounds upon which this conclusion was insisted by the plaintiffs. One of these, the want of any corporate ordinance, directing the lots to be filled, was a question of fact purely, and if found in favor of the plaintiffs, of itself sufficed to show that the assessments were void. As the referee may have reposed his decision on this point, and there was evidence in its support, we are not inclined to disturb the report on this ground; although there is a wide difference between proving the existence of an ordinance affirmatively in order to establish and enforce a legal claim founded upon it, and proving that there never was any ordinance, in an action to recover money paid on the assumption that one existed. Evidence tending to show that there was an ordinance, may be sufficient for a defence in the action for money paid, which would be totally inadequate to establish a title founded upon an assessment sale made by virtue of such ordinance.

The important question remains, can the plaintiffs recover back the money paid ? The payments were not made under any mistake of fact. The plaintiffs declared and insisted that the assessments and the sales were void ; and the referee has adjudged that they were void. There was no mistake of law even; for the plaintiffs knew perfectly well that a sale under a void assessment conferred no title upon the purchaser.

It is contended, however, that the payments were involuntary, and were made by compulsion. That the sales constituted a cloud upon the title, which cloud, circumstances compelled the plaintiffs to remove ; and it is intimated by the points made in Mr. Post’s case, that his payment was made through coercion, oppression, imposition, fraud, or by taking undue advantage of his situation, or by wrongfully exacting it, colore officii.

1. In regard to the cloud upon the title. The muniments of title, upon an assessment sale, consist of several proceedings, all of which are indispensable to its validity, and if one be wanting, no title is shown. Of these links in the chain, the plaintiffs insist that three at least never existed, viz.: the original ordinance directing the filling, the assessment of the expense, and the advertisement for redemption. Each of these preceedings forms an essential part of the record of the assessment title, and in their absence, such title is void upon its face. See the observations of the chancellor, in Wiggin v. The Mayor, &c., of New York, (9 Paige, 16,) and Van Doren v. The Same Defendants, (Id. 388.) A conveyance or judgment, void upon its face, does not constitute a cloud upon the title ; and the assertion of a title under such a conveyance, or of a lien by virtue of such a judgment, does not afford a ground for equitable interference ; much less does it constitute legal compulsion. There are cases of duress of personal property, in which payments for its relief, are deemed involuntary, and the money may be recovered back. Most of these have arisen upon seizures of goods under revenue or excise laws, and by public officers acting under process or warrant of law. The principle has been extended, occasionally, to cases where bailees, or others, who came into the possession of goods lawfully, have exacted more than was due, before they would relinquish such possession. It is founded upon the movable and perishable character of the property, and the uncertainty of a personal remedy against the wrongdoer. The reasons for the rule .are wholly inapplicable to real estate, and we are not aware of any instance in which it has been applied to that species of property. On this subject of payments compelled by duress of property, we refer to Chase v. Dwinall, (7 Greenl. 134;) Ellicott v. Swartwout, (10 Peters, 137;) and Clinton v. Strong, (9 John. 370.)

It cannot be said therefore, that the payments in question were made through compulsion, coercion or oppression. There is no pretence that there was any imposition or fraud in the case. There was no advantage taken of the situation of the parties, nor was the money in any sense exacted from them. The corporation, whose agent, the street commissioner, received the money, was not only passive in respect of the payment, but so far as the case discloses, had no interest in the matter. The money, if the lots were redeemed, belonged to the purchasers; no part of it was to be retained by the corporation, and it was to the latter totally indifferent whether the redemption should be made or omitted.

The simple truth of the affair is this. The corporate authorities had sold these lots for assessments which they and the purchasers alleged to be valid in fact and in law. The original owners were entitled to redeem, on paying the bids with interest to the purchasers, through the street commissioner. Those owners averred and insisted that the assessments were absolutely void, both in fact and in law, and that the sales and conveyances were equally void. Thus the parties were at issue, each claiming a right, and the plaintiffs fully apprised of the grounds of the opposing claim. It became desirable for the one plaintiff to sell his lots, and for the other to mortgage his, and the assessment claims presented an obstacle to the accomplishment of their wishes. The plaintiffs, rather than to forego the opportunity of mortgaging and selling, chose to pay the assessments claimed ; instead of abiding the result of a litigation testing their validity.

In our view, this clearly constituted a voluntary payment, which according to a well settled and valuable principle of law, cannot be recalled. (Silliman v. Wing, 7 Hill, 159; Supervi sors of Onondaga v. Briggs, 2 Denio, 26, 39 ; Brisbane v. Dacres, 5 Taunt. 143 ; Robinson v. City of Charleston, 2 Richardson, 317. And see Ege v. Koontz, 3 Barr’s Penn. R. 109.)

There is one fact in Mr. Post’s case, which distinguishes it from Fleetwood’s. Previous to his payment, the counsel of the corporation promised that his rights under a petition to the common council, should be reserved just as they then were; and both the corporation counsel and the street commissioner said, or assented to the proposition, that the plaintiff could pay the assessment, and reserve his rights against the corporation. These facts are not urged as showing any thing like fraud or imposition, because the officers named made no application to Mr. Post to pay the money, and they did not urge or request its payment, but it is claimed that they prove an agreement that the payment should not affect his rights.

As to the positive promise of the counsel, it relates apparently, to an application to the justice or clemency of the municipal legislature; and the assent of both officers to his being entitled to recover the money back, was rather the expression of an opinion on the law, than a stipulation.

But giving to the proof the broadest scope claimed for it, we do not perceive how it can alter the case. The corporation counsel had nothing to do with the subject matter. He could not receive the money or cancel the sale. As to the street commissioner, it was his duty by law to receive the redemption money, if tendered, for the benefit of the purchaser. He was a public officer, and the plaintiff was bound to know the extent of his authority. There is no proof that he was authorized to bind the corporation by such agreement as is inferred from the evidence; and there is certainly no such authority conferred upon him by law. If the plaintiff chose to redeem on the faith of such a promise, it gives him no rights against the corporation of the city.

The legal effect of the payment is not impaired by the protests made. When a party pays under duress of his goods, a protest may become important as evidence that the payment was the effect of the duress, and not an admission of the right enforced by the adverse party. But where there is no legal compulsion, a party yielding to the assertion of an adverse claim, cannot detract from the force of his concession, by saying, I object or I protest, at the same time that he actually pays the claim. The payment nullifies the protest as effectually as it obviates the previous denial and contestion of the claim.

The report of the referee must be set aside is each case, and the rules referring the causes are discharged.