text:
    LUCIUS N. BISHOP, Plaintiff, v. FRANCIS BARTON, Defendant.

      Indiam, reservation—bidges on—duty of commissioner of highways to repair.

    This action was brought to recover for injuries sustained by the plaintiff, by the falling of a bridge, within the boundaries of the town of South Valley, on the ground that it was the duty of the defendant, the commissioner of highways of said town, to keep the same in repair. The bridge, which, together with the highway leading thereto on either side, was situated on the Allegany Indian reservation, was constructed by commissioners appointed by virtue of chapter 473, Laws of 1866. Held, that the defendant was not bound to keep the bridge in repair, and that plaintiff was not entitled to recover.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    The plaintiff brought this action to recover of the defendant, sole commissioner of highways of the town of South Valley, for injuries sustained through the falling of a bridge in the said town, in July, 1872, while the plaintiff, with a team and loaded wagon, was passing over it. The bridge, together with the highway, on each side, leading thereto, was on the Allegany Indian reservation, although within the boundaries of the town of South Valley. It was built in 1867, under the provisions of chapter 473, Laws of 1866. At the trial, the plaintiff was nonsuited, on the ground that it was not the duty of the defendant to keep the bridge in repair.

      Wm. H. Henderson, for the plaintiff.

      James G. Johnson, for the defendant.
   Gilbert, J.:

This appeal brings up only one question, namely, whether the defendant, as commissioner of highways of the town of South Valley, was charged with the duty of repairing the bridge in question, by virtue of article 1, title 1, chapter 16, part 1, of the Revised Statutes. The bridge was constructed pursuant to an act of the legislature, passed in 1866, by a commissioner appointed by the same act. It is entirely within the boundaries, as designated by statute, of the town of South Valley, and intersects a highway therein, but it is also situated wholly upon the Allegany Indian reservation. The article of the Revised Statutes referred to, provides that the commissioners of highways in the several towns in this State, shall have the care and superintendence of the highways and bridges therein, and that it shall be their duty to give direction for the repairing of the roads and bridges within their respective towns, and to cause the highways and the bridges, which are or may be erected over streams intersecting highways, to be kept in repair. This language by itself, certainly, would embrace the case. Still, we are of opinion that the legislature did not so intend. Part 1 of the Revised Statutes, in which the enactment quoted is contained, is entitled, An Act concerning the territorial limits and divisions, the civil polity and internal administration of this State.” It was passed as one act, December 3d, 1827. Upon the rule of construction adopted by this court, and by the Court of Appeals, in The People v. Molyneux, it is manifest that the statute was intended solely for the government of citizens, and was not intended to embrace affairs pertaining to the Indians or their reservations. Legislation concerning the latter subjects, has never formed a part of the internal administration of the State, within the meaning of that statute, but has always been quite distinct from that relating to citizens generally. This fact strongly confirms the correctness of such construction.

It is unnecessary, therefore, to consider the extent of the power of the legislature over the subject before us. For the reasons stated, we think the defendant is entitled to judgment.

Judgment ordered for defendant.

       1 R S., 715; Laws 1827, p. 1, 2.

       53 Barb., 9; 40 N. Y., 113.

         See Laws 1813 and subsequent statutes; Edm. stat., 4th vol., 342, et seq.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    ALONZO D. FARNSWORTH and others, Executors, etc., Respondents, v. GEORGE W. EBBS, Impleaded, etc., Appellant.

      Oode, § 399 —Personal transaction <rr communication—when party prohibited from

    In an action brought to foreclose a mortgage, given to the plaintiffs’ testator by the defendants, G.W. Ebbs and Maria Ebbs, his wife, the defendant G-.W. Ebbs interposed an answer setting np the defense of usury, and his wife appeared in the action but did not answer. At the trial, Maria Ebbs testified as to a conversation which took place at an interview between the plaintiffs’ testator, her husband and herself, which resulted in the making of the loan secured by the mortgage in question. Subsequently the referee struck out all this testimony. Upon appeal, held, that the evidence was properly stricken out as inadmissible under section 399 of the Oode.
    A party to an action cannot testify as to a conversation had with a deceased person in which he participated, even though at the time of the conversation he had no interest in the subject thereof, or his interest therein was not discussed.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    The facts are stated in the opinion.

      Grover Cleveland, for the appellant,
    cited Birdsall v. Patterson (51 N. Y., 43); Simmons v. Sisson (26 id., 264); Lobdell v. Lobdell (36 id., 327); Hildebrant v. Crawford (6 Lans., 502); Card v. Card (7 Trans. App., 146).

      Thomas Corlett, for the respondent,
    cited Hatch v. Peugnet (64 Barb., 190); Lyon v. Snyder (61 id., 172); Simar v. Canady (53 N. Y., 298); Minier v. Minier (4 Lans., 421).
   Gilbert, J.:

This is . a suit brought by the executors of Samuel Ward, deceased, to foreclose a mortgage given to their testator by the defendants, George W. Ebbs and his wife, Maria. The defendant, George W. Ebbs, and another defendant, who is a junior mortgagee, set up the defense of usury. The defendant, Maria, appeared in the suit, but did not answer. No bond or other evidence of debt accompanied the mortgage. Upon the trial, Maria Ebbs was admitted as a witness to prove the usury. She testified that she went with her husband to Mr. Ward’s house, to get the money which was loaned, and that they found Mr. Ward at home. She then detailed the conversation which ensued, and which is relied on to prove the usury, and then stated that the mortgage was executed at the office of Mr. Nichols, after which the money loaned, except a small sum which was paid afterward, was handed to her husband, and by him passed to her. She also stated that the money was what we talked of most of the time, all of us taking some part in the conversation.” No other witness was sworn. Thereupon the referee, on motion of plaintiffs’ counsel, ordered that all the testimony of the witness, Maria Ebbs, as to the conversation at Mr. Ward’s house and Mr. Nichol’s office, be stricken out; and the defendant, George W. Ebbs, excepted.

Nothing of any legal import occurred in the conversation at the office of Mr. Nichols. The only material question, therefore, is, whether Mrs. Ebbs was a competent witness to prove the conversation which took place at Mr. Ward’s house. The Code provides that no party to an action, nor any person interested in the event thereof, shall be examined as a witness, in regard to any personal transaction or comndunication between the witness and a deceased person. The fact that Mrs. Ebbs was the wife of the co-defendant, on whose behalf she testified, was not sufficient to exclude her. Nor did the facts, that she was a party to the suit, and interested in the event thereof, render her incompetent. She was a competent witness, but it was not permissible to examine her, as to the “ personal transaction or communication ” prohibited by section 399 of the Code. That the conversation related by her, comes within this prohibition, we think satisfactorily appears. She went with her husband to negotiate the loan, and participated throughout in that negotiation. She is one of the parties to the only instrument taken as security for the loan. It is not probable that the loan would have been made, unless she had executed the mortgage. Although, therefore, her interest in the mortgaged premises was only an inchoate right of dower, and her execution of the mortgage operated only as a release of that interest, yet the security would not have been perfect, if she had not participated in the transaction, by executing the mortgage. The principle would not be changed by considering that her husband was the actual borrower. The test of the prohibition, contained in section 399 of the Code, is not whether the interests of the witness were the subject of the transaction or communication. Oases will often arise, when a witness cannot be permitted to testify to a transaction or communication, in which he had at the time no interest. For example, when an admission has been made, respecting property of which the witness afterward became the owner; or when the witness acted for another in a transaction, in the subject of which he afterward acquired an interest; or when a loan is negotiated by A, in a conversation between him and the lender, in which B participates, and the negotiation is consummated at the same time, by A’s giving the lender his note, indorsed by B for A’s accommodation; or, as in the case before us, when the transaction and communication were personal ones between the witness, who had some interest in them, and another person, more directly and specially interested.

Such cases are very different from those cited by the appellant, in which it was held that the hearing of a communication is not a transaction had personally between the deceased and a party, the distinction being between a conversation exclusively between others, which the witness overheard, and one in which he himself participated.

We are of opinion that the ruling of the referee was correct, and that the judgment should be affirmed with costs.

Judgment affirmed, with costs.

       § 399.

       Laws 1867, chap. 887; Birdsall v. Patterson, 51 N. Y., 43.

         Code, § 390, 398.

       Simmons v. Sisson, 26 N. Y., 264; Lobdell v. Lobdell, 36 id., 327; Hildebrant v. Crawford, 6 Lans., 502.


text:
    HEMAN D. M. MINER, Receiver, etc., Respondent, v. CHARLES K. JUDSON, Appellant.

      Policy of insurance—when avoided by alienation of property insured—chattel mortgage taken back at time of sale — effect of.

    The defendant gave to a mutual insurance company, in consideration of a policy issued on his property, his note for $165, payable in such amounts and at such times as the company might direct. Subsequently defendant sold the property, and took back a chattel mortgage to secure the purchase-money. The charter of the company provided that upon any alienation of the property insured the policy should become void, and should be surrendered to the company, and that upon such surrender the insured should be entitled to receive his deposit note upon paying his proportion of losses accruing prior to the time of surrender. Held, that the sale of the property avoided the policy, and that the defendant was entitled to receive back his note.

      Savage v. Howard Ins. Co. (52 N. Y., 502) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    In May, 1852, The Jamestown Farmers’ Insurance Company was incorporated under the act to provide for the incorporation of insurance companies, passed April 10th, 1849, and had an office and did business in Jamestown till May 3d, 1858, when its property was sequestered for the payment of its debts, and in May, 1860, the plaintiff was appointed receiver of all the effects of the said company, and qualified and acted as such receiver.
    On the 20th of August, 1853, said company, upon the application of the defendant, insured his printing press, etc., for the sum of $750, against loss by fire for the term of five years, and, in consideration thereof, the defendant made and delivered his note to said company for $165, to be paid in such portion or sums, and at such time or times as the directors of said company, by their charter or by-laws, should require. On the 8th day of December, 1853, the defendant sold the property that was mentioned in the policy, to one Morris, and took from Morris a chattel mortgage upon the same property, to secure the purchase-price. The defendant also assigned the said policy absolutely to Morris with the consent of the company, and by consent of said company Morris assigned the policy to the defendant, as collateral security for the payment of the amount secured by the mortgage, and at such time said Morris made and delivered to the company his note for $165, payable by its terms precisely as the note which the defendant had given the company, which note defendant supposed was accepted by the company in place of his note. After the giving of the note by Morris, assessments were made by the company, for losses upon the Morris note, to the amount of $32.15, which were paid by Morris. The note of the defendant was never taken up by him, and was delivered by the company to the receiver, who brought this action upon it.
    Losses occurred in 1855, 1856, 1857 and 1858, which the company were liable to pay; and' the court by its order directed the receiver to assess the notes held by him, and collect to pay the losses, and he did assess the note given by the defendant for such losses the sum of $96.25, but no loss happened within three years from the time of the defendant selling the property and the assignment of the policy to Morris. This was a mutual insurance company, and by section 3 of its charter, all persons who insured, their heirs, administrators and assigns, became members of said company for the time they were insured, and no longer.

    Section 13 provides, that when any property insured shall be alienated by a sale or otherwise, the policy shall thereupon be void, and be surrendered to said company, and upon such surrender the insured shall,.be entitled to receive his deposit note, upon his paying his proportion of the losses accruing prior fo the time of surrender. * * * And that assessments are to be made against members of the company. (Chap. 466, Laws of 1853.) This case has already been before the General Term of the eighth district, where the judgment was reversed.

      C. D. Murray, for the appellant.

      Jenkins & Congdon, for the respondent.

       See Miner v. Judson, 2 Lansing, 300.

   Gilbert, J.:

When this case was before the court on a previous appeal, the judgment against the defendant was reversed, and a new trial granted, on the ground that when the defendant (the assured) sold and alienated the property insured, the policy became void, and therefore he became entitled to a return of the note in suit. It had not then appeared, that, upon such sale of the subject insured, the defendant took back a chattel mortgage, to secure payment of the price. Upon the last trial, that fact was proved, and the referee gave such effect to it, as again to render judgment against the defendant. We think the referee erred. The legal effect of the sale by the defendant, was to vest the title in the purchaser. A complete alienation was then made. The chattel mortgage, given to the defendant by the purchaser, operated as a transfer of the title, subject to be defeated on payment of the sum it was given to secure. The title of the defendant under the mortgage, would become absolute only upon default in the performance of the condition. The mortgagor held the equitable title to the property, and that would continue in him, until barred by a sale by judicial decree, or by lapse of time. The principle asserted in the case of Savage v. Howard Ins. Co., is decisive of the effect of the transaction referred to, and requires us to reverse the judgment appealed from.

Judgment reversed and a new trial granted, with costs to abide the event.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed and new trial granted, costs to abide event.

       Parshall v. Eggert, 54 N. Y., 18.

       Aikins v. Hosley, 3 N. Y. Sup. Ct. R., 326; Porter v. Parmley, 52 N. Y., 188, and authorities cited.

       52 N. Y., 502.


text:
    THIRD NATIONAL BANK OF SYRACUSE, Respondent, v. ALEXANDER McKINSTRY and others, Appellants.
    Trial— what is not.

    Where, after the trial of a cause had been commenced at the circuit, a jury impaneled, and a witness sworn and examined, the court ordered that the cause be referred to a referee to hear and determine, held, that such proceedings at the circuit did not constitute a trial of the action.

      Appeal from an order made at the Special Term, disallowing the taxation of a trial fee for the circuit in favor of the defendant.
    The trial of this action was commenced at the circuit, a jury impaneled, and a witness sworn and examined, when the court ordered “ the cause referred to Cyrus Sweet, sole referee, to hear and determine the same, costs to abide the event.”
    The cause was then tried before the referee, and resulted in favor of the defendants. The defendants claimed to tax two trial fees, one before the referee, and one for a trial at circuit. The court, at Special Term, disallowed the item of trial fee at circuit, and allowed in place thereof, a term fee.

      Wm. C. Ruger, for the appellants,
    cited 4 Robt., 654; 8 How., 1; 6 id., 465; 8 id., 4; 1 Abb., 125; 4 Sand., 688; 38 How., 349; 7 id., 161; 14 Barb., 577.

      Hiscock, Gifford & Doheny, for the respondent,
    cited 38 How., 349; 6 id., 465; 28 id., 184; 30 id., 36; 1 Code Rep., 134; 35 How., 410; 4 Duer, 639.
   Gilbert, J.:

A trial is a judicial examination of the issues between the ■parties. Such an examination may be had without being followed by a conclusion, determination or verdict; e. g., when a jury disagrees, or a juror is withdrawn, or when a complaint is dismissed. But when the court refuses to examine the issues, and, of its own motion, sends the case to a referee, it would be a stretch of common sense and of law to hold that there had been a trial. What issue of law or of fact was judicially examined by such a proceeding ? And yet it is only for a trial, so defined, that a trial fee is allowed.' None of the cases cited by the appellant support his appeal.

We think the order appealed from should be affirmed.

Order affirmed.

       Code, § 352.

       Code, § 307, sub. 4.


text:
    JOHN H. HAZARD, Appellant, v. ROBERT R. HEFFORD and others, Respondents.

      Win — Undue influence—what is not.

    To invalidate a will, it must be proved that it was procured by force, threats or coercion, destroying free agency. The exercise of influence springing from the family relation, or from considerations of service, affection or gratitude, is not undue, even though it be pressed to the extent of unreasonable importunity.
    Appeal from a decree of the surrogate of the county of Erie, admitting to probate the will and codicil of Maria B. Hazard, deceased.

      Perry G. Parker, for the appellant.

      Spencer Clinton, for the respondents.
   Gilbert, J.:

Hpon the evidence before us, no doubt of the testable capacity of the testatrix can be rationally indulged. It is not necessary to refer to the legal test on this subject, for her mental condition, as described by the witnesses, was much better than the rule, put forth by the appellant, requires.

With respect to the charge of undue influence, we have carefully scrutinized the evidence, and are satisfied that it has not been sustained. There may be, perhaps, cause to suspect that the father of the principal beneficiary, exerted some influence in procuring some of the obnoxious provisions to be inserted in the will. But there is no proof of such influence, and if that fact were proved, it would not invalidate the will. The law requires that the influence be such as to deprive the testatrix of the free exercise of her will, at the time of doing the testamentary act. To invalidate the will, it must be proved that it was procured by force, threats, or coercion, destroying free agency. The exercise of the influence springing from the family relation, or from considerations of service, affection or gratitude, is not undue, even though it be pressed to the extent of unreasonable importunity. The right of a testatrix to dispose of her property is absolute, and cannot be controlled by any evidence which falls short of establishing a defect of testamentary capacity, or actual fraud or coercion. Evidence that the testatrix had been influenced in making the will, would lead to no legal result. What influence, not amounting to fraud or coercion, would the law condemn? Such an inquiry would lead to an investigation of the motives and reasons operating on the mind of the testatrix, which would end only in confusion and doubt. It is, therefore, a wise and salutary rule which requires proof of actual coercion or fraud. Any other rule would render the power of testamentary disposition uncertain and of little value.

We have looked into the exceptions, but And none of them tenable.

The decree of the surrogate must be affirmed, with costs to be paid by the appellant.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

       Gardiner v. Gardiner, 34 N. Y., 155.

       Clapp v. Fullerton, 34 N. Y., 197; Tyler v. Gardiner, 35 id., 559; Dean v. Negley, 41 Penn., 312.


text:
    JAMES A. TICE, Jr., Respondent, v. RUEL GALLUP, Appellant.

      Warranty—breach of—Principal—when bound by representations of agent.

    In an action to recover for a breach of warranty on a sale of a horse by the defendant through an agent authorized to sell it, the defendant was asked, while testifying as a witness in his own behalf, whether he instructed the agent to make the representations which constituted the warranty, and the question was excluded. Held, that its exclusion was proper. Whether the agent was a general or a special one, he had authority to make the representations by virtue of his agency to sell, unless he was forbidden so to do by his principal.

      Nelson v. Cowing (6 Hill, 336) followed.
    Appeal from a judgment in favor of the plaintiff. The facts are stated in the opinion.

      Ellsworth & Potter, for the appellant.

      B. J. Hunting, for the respondent.
   Gilbert, J.:

Action for breach of warranty, on sale of a horse by defendant through an agent named Burgo. The authority to Burgo was to sell the horse if he got sixty dollars. Burgo sold to plaintiff for that price, and induced the plaintiff to purchase by representing, among other things, that the horse was only eleven years old, whereas he was fifteen; that a lameness which he had, came from a kick, whereas it was caused by a bone spavin. No question is made that these representations amounted to a warranty, or that there was a breach. The plaintiff recovered judgment, which was affirmed by the County Court. The error complained of, is, that a question put to the defendant when testifying on his own behalf, viz., whether he instructed Burgo to make the representations which constitute the warranty, was excluded. We perceive no error. Whether Burgo was a general or a special agent, he had authority to make the representations, by virtue of his agency to sell, unless he was forbidden so to do by his principal. The question was irrelevant. A specific authority to warrant is not necessary. The judgment must be affirmed.

Judgment affirmed.

       Nelson v. Cowing, 6 Hill, 336; Story on Ag., 137.


text:
    PHŒBE BENJAMIN, Respondent, v. LYMAN ARNOLD and others, Appellants.

      Promissory note—one of several makers cannot show that he signed as surety only.

    In an action by the payee upon a joint and several promissory note, signed by all the defendants herein, three of them offered to prove that they signed it as sureties only, for the accommodation of the fourth, which fact was known to the plaintiff at the time she took the note, and that after the same came due, she, without their consent, extended the time of payment thereof. Held, that the evidence was inadmissable.

      Campbell v. Tate (7 Lans., 370) followed.

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at the circuit, and from an order denying a motion for a new trial.
    This action was brought on a joint and several promissory note, reading as follows:
    “ $1,000.
    “ One year from date, for value received, we, or either of us, promise to pay Phoebe Benjamin or bearer one thousand dollars, with interest.
    “LYMAN ARNOLD. “CHARLES M. SHTTLTS.
    “HIRAM SHAVER.
    “ GEORGE W. SNELL.”
    The defendants Shults, Shaver and Snell alleged in their answer, and offered to prove upon the trial, that they signed the note simply as sureties, and for the accommodation of Arnold, which fact was known to the plaintiff at the time she received the note, and that after the note was due, the plaintiff, without their consent, and for a valuable consideration paid by Arnold, extended the time of payment of said note six months. The court held the evidence incompetent, and excluded it.

      Wm. M. Nichols, for the appellants.
    The evidence was competent. (Wagman v. Hoag, 14 Barb., 232; Vanhorne v. Everson, 13 Barb., 526; 29 id., 401; King v. Baldwin, 17 Johns., 384; Bangs v. Strong, 4 N. Y., 315; Miller v. McCan, 7 Paige, 452; Vilas v. Jones, 10 id., 76; Gahn v. Niemcewicz, 11 Wend., 312; Artcher v. Douglass, 5 Denio, 509; Barry v. Ransom, 12 N. Y., 462.)

      Wm. Rumsey and Butler & Searl, for the respondent.
    The evidence was properly excluded. (Thompson v. Hall, 45 Barb., 214; Thomas v. Truscott, 53 id., 200; Bull v. Allen, 19 Conn., 101; Sprigg v. Bank, 10 Peters, 257; Montgomery Bank v. Walker, 9 Serg. & Rawle, 229; Harrison v. Courtauld, 3 B. & Ad., 36; Fentum v. Pocock, 5 Taunt., 192; Manly v. Bogart, 2 E. & B., 46; Price v. Edwards, 10 B. & C., 578; Rees v. Berrington, 2 Ves., 540.)
   Gilbert, J.:

Upon a consideration of the authorities in this country and in England, it must he regarded as still an open question, whether the evidence offered and rejected in this case was not admissible. At first blush, the reception of such evidence would not seem to contradict the contract created by the note, which is nothing more than an absolute promise to pay a sum of money, but to lay the foundation of a defense resting on equitable rules, wholly independent of the formal contract. But as this court, in the third department, in a recent case, has decided the precise point, we think it best to follow that decision, and leave it to the Court of Appeals to establish a contrary rule, if justice should require it.

The judgment is, therefore, affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       See 1 Pars. N. & B., ch. 7, § 2.

       Campbell v. Tate, 7 Lans., 370.


text:
    LINUS P. MARSDEN, Appellant, v. THOMAS CORNELL and another, Respondents.

      Canal boat—mortgage on—refiling of—must be accompanied by statement of mortgagee's interest.

    The plaintiff, the owner of a chattel mortgage on a canal boat, filed the same in the office of the auditor of the canal department, on the 14th of-September, 1870. On the 20th of September, 1871, a copy thereof was filed in said office, but without a statement exhibiting his interest in the mortgaged property, as required by chapter 412, Laws of 1864. On the 14th of September, 1872, another copy, together with 'the requisite statement, was filed. The defendants purchased the boat, on or prior to August 14, 1872, in good faith, and without notice. Held, that the failure to file the statement with the copy of the mortgage in 1871, rendered the same invalid as against the defendants.

      Swift v. Ha/rt (12 Barb., 581) doubted.
    One purchasing with notice of the existence of the mortgage, but without notice of the amount due thereon, is still a bona fide purchaser.
    Appeal from a judgment in favor of the defendants, entered upon a trial at the circuit.

      This action was brought to obtain possession of a canal boat, in which the plaintiff claimed a special property by virtue of a chattel mortgage, bearing date September 5,1870, executed to him by one Garvey, to secure a part of the price of building the boat. Á copy of the mortgage was filed in the office of the canal auditor, at Albany, September 22, 1870. Subsequently the boat was sold to one Nelson, and, while he was the owner, it was injured while being towed by the defendant Cornell, on the 1st of November, 1871. For these injuries, a suit was brought against Cornell, and a judgment obtained on July 5, 1872, for the full value of the boat, which judgment was afterward paid on or about August 28, 1872. On the 14th of August, 1872, Cornell sold the boat to the defendant Costello, and took back a mortgage for the purchase-price.
    Other facts are stated in the opinion.

      Sanders & Baldwin, for the appellant.

      Benedict, Taft & Benedict, for the respondents.
   Gilbert, J.:

We are of opinion that the appellant’s mortgage ceased to be valid as against the respondents, for ,the reason that the copy thereof which was filed in the office of the auditor of the canal department, September 20, 1871, was not accompanied by a statement exhibiting his interest in the mortgaged property, as required by section 3 of the statute relating to the registry of liens, etc., on canal boats, passed April 28, 1864.

A copy of the mortgage was first filed September 14, 1870. Another copy, without any statement exhibiting the interest of the mortgagee, was filed September 20, 1871; and another copy, together with the requisite statement, was filed September 14, 1872. The respondents respectively became purchasers on or prior to August 14,1872. It is urged on behalf of the appellant, that the filing of a copy of his mortgage, September 20, 187l, may, as to subsequent purchasers, be treated as an original filing. The remarks of the learned justice who delivered the opinion of the court, in Swift v. Hart, would seem to support this view, although, in that case, the mortgage was refiled, with a statement of the mortgagee’s interest, before the adverse claim accrued. What would have been the decision of the court, if snch refiling had not been accompanied by the requisite statement of the mortgagee’s interest, can only be conjectured. I am not aware that the remarks of the learned justice, in Swift v. Hart, have ever been approved. On the contrary, the subsequent decisions, so far as they bear on this question, seem to be contrary to the views there expressed, These authorities sustain the proposition, that the mortgage must be filed, and that it must be refiled within thirty days of the expiration of a year from the time it was filed, and that if not filed, or if, after having been filed, it is not refiled within the time specified, it ceases to be valid as against „ creditors generally, and as against bona fide purchasers subsequent to the omission to refile. The language of the statute also is too plain to admit of any question. It provides that “ every mortgage filed, etc., shall cease to be valid, etc., after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the said term of one year, a true copy thereof, together with a statement, etc., shall be again filed.” This language needs no interpretation. It would be a perversion of it to hold a refiling to be an original filing, and it would, in effect, render inoperative one of the conditions to the validity of the security, viz.: the refiling, with a statement of the mortgagee’s interest; and thus the mortgage might be perpetually kept on foot, by virtue of the misnomer of calling a refiling an original filing. It is sufficient to say, that the statute does not permit,' but plainly protects creditors and purchasers against, any such evasion of its salutary purpose for preventing fraud. The appellant’s mortgage was filed. It was also refiled, but the latter act was not accompanied by the statement of the mortgagee’s interest, which the statute requires. By reason of that omission, it “ ceased to ’be valid ” as against the respondents, if they were bona fide purchasers. That they were such, we think is clear. Cornell was sued in trover for the value of the boat, by Nelson the owner. Judgment was recovered against him for such value. He paid the judgment and retained the boat. Immediately afterward, he sold the boat to his co-respondent, and took back a mortgage for part of the price. The payment of the judgment transferred the title of the boat to Cornell, and as such transfer was effected while the mortgage of the appellant was invalid, the title thus acquired could not be effected by the mortgage, unless the transferree had notice of its existence. The uncontradicted evidence disproves notice. And even notice of the existence of the mortgage, without notice of the amount due thereon, would not make the purchase one malafides. It is begging the question, to say that Nelson’s interest in the boat was subject,- as between him and the appellant, to,the mortgage, and therefore he had no power to transfer any greater interest. The statute which made the mortgage invalid as against the respondents, gave him the power to transfer the boat to them, divested of the lien of the mortgage. That was necessarily the legal effect of the transaction.

The foregoing remarks require an affirmance of the judgment, without adverting to the other questions presented. We shall therefore express no opinion upon them.

The judgment must be affirmed.

Judgment affirmed.

       Laws 1864, p. 993.

       12 Barb., 531.

       Thompson v. Van Vechten, 5 Abb. Pr., 476; S. C., 27 N. Y., 583; Ely v. Carnley, 19 id., 496; Porter v. Parmley, 52 id., 188; Newell v. Warren, 44 Barb., 265: S. C.. 44 N. Y.. 248.

       Beers v. Waterbury, 8 Bosw., 411.


text:
    HENRY TEN EYCK, Respondent, v. OSCAR CRAIG and others, Executors, etc., of JOHN CRAIG, Deceased, and HELEN M. POWERS, Appellants.

      Trustee and cestui que trust—when relation exists—Agent—when unable to purchase property of principal — Mortgagee in possession — rights of.

    In April, 1860, one Stewart, the owner of certain premises in the city of Rochester, upon which there were three mortgages, one of which was owned by one Sprague, and the other two by Craig, the defendant’s testator, executed another mortgage upon the same to Craig, and at the same time assigned to him a lease of the same, executed to one Cook, in order to indemnify him for any liability he might incur, as surety on an undertaking given by Stewart on appeal from a judgment recovered against him. The assignment authorized Craig to collect the rents, and from them to pay the interest on the mortgages, and the insurance on the property; the balance to be held to meet any liability incurred by him upon the undertaking. Held, that, though by the assignment Craig became the agent of Stewart, yet the subject of the agency was not the property itself, but the rents thereof, which were to be received by Craig and applied as directed by the assignment; that such agency did not impair any right of Craig as mortgagee, or impose any burden or disability upon him; nor did it incapacitate him from purchasing an outstanding title to the property. The relation between a mortgagee in possession and the mortgagor, is not one of trust or confidence, nor has he any duty to perform in respect to the lands mortgaged, which incapacitates him from purchasing an outstanding title thereto. On the 17th of December, 1860, and while Craig was collecting the rents of the premises, by virtue of the assignment of the lease, he purchased the same at a sale, under an execution issued on a judgment against Stewart. Fifteen months after such sale, the premises were redeemed by a judgment creditor of Stewart, who took a deed thereof from the sheriff, and subsequently conveyed the same to Craig. The plaintiff claimed that the redemption was made with money of Stewart’s, and for his benefit, and that Craig had notice of these facts. Held, that if the redemption was valid, Craig got a good title to the premises, and that if it was invalid, as made ostensibly by a judgment creditor, but really by a trustee of the judgment debtor, after the expiration of the time within which debtors may redeem, it was a nullity, and that Craig was entitled to have the equitable title, acquired by him at the purchase at the execution sale, consummated by a conveyance from the sheriff.
    On the 27th of April, 1860, Stewart and wife conveyed the premises to Sanger, who died leaving a will by which he devised the same to his wife, who, on the 3d of January, 1867, conveyed the same to the plaintiff. In an action brought by him to redeem, held (1), that the conveyance to him by Mrs. Sanger was void as against the defendants, as they were, at the time of its execution, in possession of the premises, claiming under a title adverse to that of Mrs. Sanger; (2), that even if the relation of trustee and cestui que trust existed between Stewart and Craig, the purchase by the latter could only be avoided by Stewart, or his heirs or personal representatives.
    If, under any circumstances, such a right of election to avoid a purchase made by a trustee, would pass to the grantee of the property purchased, by virtue of a conveyance thereof by the cestui que trust, no such result would follow the conveyance to Sanger, as it was made several years before the purchase by Craig, which it is now sought to avoid.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to redeem, from a mortgage held by the defendants’ testator, property in Rochester, known as “ Congress Hall,” and for an accounting of the rents and profits received therefrom. The following are the findings of fact and conclusions of law by the court:
    On the 23d of April, 1860, Nelson P. Stewart, then being the owner in fee of certain real estate, situate in the city of Rochester, known as “Congress Hal),” executed a mortgage of that property, and of a farm in Erie county, to the defendant, John Craig, to indemnify him for becoming Stewart’s surety in an- undertaking, made to stay proceedings on a judgment recovered in the Supreme Court, on the 24th day of October, 1859, in favor of Maria L. Dehon, executrix, against Stewart, for $10,184.83, on an appeal taken by Stewart from said judgment. At the time of the execution of said mortgage, said Congress Hall property was subject to three prior mortgages, amounting to about $19,000, two of which were then owned by the defendant, Craig, and the third by Asa Sprague, who subsequently transferred it to the defendant, Craig. The said Congress Hall property was also subject, at the time of the execution of said indemnity mortgage, to alease executed by Stewart to Robert D. Cook, for the term of five years from the 1st day of May, 1860, at a rent of $3,600 a year, payable monthly in advance.
    On the 24th of April, 1860, Stewart assigned said lease and the rents payable thereon, to Craig, as further indemnity for his becoming surety as above stated, by an instrument in writing, of which the following is a copy, to wit:

      “ Whereas, On or about the 24th of October, A. D. 1859, one Theodore Dehon, of New York, recovered a judgment in the Supreme Court against Nelson P. Stewart, for the sum of $10,184.83, entered upon a report of referee, from which judgment said Stewart has appealed to the General Term of the Supreme Court, and for the purpose of staying proceedings upon the said judgment, the undersigned, John Craig, has consented to sign and execute the necessary undertaking to stay the proceedings upon said judgment.”

      “ Now, for the purpose of securing the said Craig for becoming such surety (in addition to other securities made to him), the said Nelson P. Stewart hereby sells, assigns and transfers to said Craig, the annexed lease of Congress Hall, executed by R. D. Cook to me, and said Craig is hereby authorized to demand and receive the rents, reserved by said lease for the term thereof, or until said Craig shall be relieved from liability on his undertaking, from which rents said Craig is to pay the interest upon the mortgages now on said premises held by himself and Asa Sprague, the insurance thereon, and the balance of said rents are to be held by said Craig to meet any liability upon his said undertaking upon the appeal aforesaid, upon which balances so remaining in his hands, said Craig is to allow interest to said Stewart.”

      “ And for the more ample protection of said Craig, it is hereby agreed that in case said Cook, from any cause shall fail to meet his rents, or shall fail to perform his covenants, or to keep said house, and the said premises shall be vacated, or said lessor shall be entitled to the possession, that then, and in that case, the said Craig shall have full power and authority to take the actual possession of said premises, and relet the same in the name of said Stewart, holding the lease and rents under his assignment for the term or period for which he shall remain responsible upon said undertaking ; when said Craig shall be relieved of responsibility upon the said undertaking, he is to render an account and pay over the rents which may have accumulated in his hands as above provided. Rochester, April 24th, 1860.”
    (Signed.)
    “ NELSON P. STEWART.”
    “ JOHN CRAIG.”
    Craig was made liable on his said undertaking as surety, and was compelled to pay $12,301.24 thereon, on the Ith of August, 1862.
    Craig foreclosed his indemnity mortgage, so far as it related to the property in Erie county, and realized therefrom the sum of $2,615.88.
    At the time when Craig signed said undertaking, and took said indemnity, said Congress Hall property was subject to a judgment theretofore recovered in the Supreme Court in favor of the Madison County Bank, or the trustees thereof, against said Stewart, for the sum of $2,500 and costs, of the existence of which judgment Craig was ignorant at that time. On being informed of it, he refused to justify as a surety to said undertaking, unless he was indemnified* against said judgment, and therefore Stewart executed a bond, dated the 1st day of June, 1860, and procured the same to be executed by George K. Johnson and.the defendant, Elisha 0. Litchfield, as his sureties, in the penal sum of $5,000, conditioned to protect said Congress Hall property against the judgment last above mentioned, which bond was delivered to Craig, and he then justified as surety to the undertaking given on the appeal. On the 5th day of December, 1863, Craig recovered a judgment on said last mentioned bond, against Litchfield, for $5,179.69, which judgment Litchfield paid to Craig. On the 17th of December, 1860, the Congress Hall property was sold on an execution issued upon said judgment in favor of the Madison County Bank, and was bid off at such sale by the defendant, Craig, for the sum of five dollars. On the 17th of March, 1862, Daniel W. Powers, by virtue of a judgment recovered by him against Stewart, on the 26th of J anuary, 1860, for $1,481.78, redeemed the Congress Hall property from said sale, and on the 21st of March, 1862, the sheriff in completion of such sale, executed a deed of said property to Powers. On the 7th of May, 1864, Powers, by deed of that date, conveyed said property to the defendant Craig, in consideration of the sum of $1,753.53, paid by Craig. The deed was recorded 9th of February, 1867.
    The judgment under which Powers redeemed, had been sold and assigned by him before the redemption, and on the 10th of April, 1860, to Oliver M. Benedict of Rochester, in consideration of the amount then due on the judgment, paid by Benedict to Powers, at the time. On the day of the redemption, to wit, the 17th of March, 1862, Benedict reassigned the judgment to Powers, without any valuable or valid consideration. At the time of each of those assignments, and for several years next preceding that time, Benedict, who was an attorney and counselor at law, was the attorney of Stewart, both in law and in fact, and was his confidential adviser. He purchased said .judgment., and took the assignment of it in his own name, at the request of Stewart. And the money which he paid for it to Powers, was furnished by Stewart, or was replaced by him immediately after such payment, in pursuance of an arrangement between him and Benedict, made before the money was paid by Benedict. There is no evidence that the assignment of the judgment from Benedict to Powers was authorized by Stewart, or that he knew of it. Previously to the time of such assignment, and in September, 1861, or thereabouts, Stewart became paralytic, and was thereafter incapable of doing business, or even of talking, except with great difficulty, and to a very limited extent. Benedict continued to attend to Stewart’s business after his paralysis, as before, and went to Detroit several times, where Stewart resided, to advise with him and his wife in regard to his affairs. In the years 1861 and 1862, Benedict was also the attorney and counsel of both Powers and Craig, and part of the time, during those years, Craig made Benedict’s office his place of business. During the period of the transactions above stated, Powers was the son-in-law of Craig, and lived in the same family with him. During much of that period, Craig kept his bank account with Powers, and at the same time made the banking office of the latter, his place of business.
    While Powers held the legal title to Congress Hall, to wit, from March, 1862, to May, 1864, he did not take possession of the premises, or receive rents on his own account, but he occasionally received the rents as Craig’s agent, and placed them to Craig’s credit in his bank. The defendant, Craig, received the rents of Congress Hall, had the management of the property, paid the taxes and interest on the incumbrances, and made repairs uninterruptedly, from the commencement of the term of the lease to Cook, to wit, the 1st day of May 1860, to the time of the trial of this action, and has never accounted to Powers for the rents received while Powers had the legal title. Down to the time when Powers redeemed, Craig kept the accounts with Stewart, but after that time he kept them with “ Congress Hall,” and not at any time with Powers. When Craig took the deed from Powers, the premises ' were occupied by Purcell, the assignee of Cook, the original lessee. On the 27th of October, 1864, Craig leased the premises to Purcell for the term of five years from the 1st day of May, 1865, and subsequently, to the latter date, Purcell occupied under that lease, and paid rents to Craig as his landlord.
    The rents which, as stated, were $300 a month under the Cook lease, were the same under the Purcell lease, to May, 1870, and thereafter were $400 a month. By the agreement between Stewart and Craig, the latter was not only to be indemnified against loss by reason of becoming surety on the appeal, but was also entitled to take out of the rents, the sum of $1,000, as a compensation for furnishing sureties on the undertaking given on such appeal.
    On the 27th of April, 1860, Stewart and his wife conveyed “ Congress Hall ” to Henry K. Sanger, by deed, subject to the several mortgages above stated, except the indemnity mortgage. Sanger died previously to July, 1864, leaving a will duly executed, bearing date the 7th of May, 1862, which was admitted to probate, 19th of July, 1864, and by which he gave to his wife all his estate, real and personal, and named her as sole executor. Mrs. Sanger, the wife of Henry K. Sanger, as devisee and executrix, conveyed Congress Hall to the plaintiff, Henry Ten Eyck, by deed dated 3d of January, 1867, and recorded 16th of April, 1867. The deed recites a consideration of $200. This action was commenced 13th of July, 1867.
    On these facts the court decided as matter of law :
    That the defendant, Craig, on entering upon the collection of th.e renits, on the assignment of the lease of the Congress Hall property, was in the position of a trustee for Stewart, in respect to the leased property, and his purchase of the same while he occupied that position, inured to the benefit of the cestui que trust, at Ms election.
    That when Benedict, the attorney and confidential adviser of Stewart, held the judgment under which Powers redeemed, he held it in trust for Stewart. Powers, as the assignee of Benedict, without consideration, took Benedict’s right in the judgment, and no more. When Powers redeemed, he took the land subject, to the trust which attached previously to the judgment in Ms hands.
    From the intimate relations existing between Powers and Craig, and from the circumstances' above found respecting their dealings with each other, and with the Congress Hall property, Craig is chargeable with notice of said trust. That Stewart, while he owned the Congress Hall property, had the right to redeem the same, on paying to Craig the amount of his liens and advances, over and above his receipts. That the plaintiff, Ten Eyck, by means of the successive conveyances above stated, has succeeded to such right of Stewart to redeem said property, and is entitled to redeem.

      George F. Danforth, for the appellants;
    (a brief was also filed on their behalf by Judge Gardiner). Even if Craig was in possession as mortgagee, the relation of trustee and cestui gue trust could not be inferred from that fact. (Dobson v. Land, 8 Hare, 220 ; Mott v. Wakely, 3 Edw., 590 ; 3 Simons, 42 ; 11 Clark & Finnelly, 648 ; Williams v. Townsend, 31 N. Y., 415; Chapman v. Mull, 7 Ired. Eq., 292; 1 Hilliard on Mort., 360 ; 2 Story’s Eq., 278, note 3; Hardman v. Johnson, 3 Merivale, 347; Randall v. Russell, id., 190 ; Norris v. Le Neve, 3 Atk., 26; King v. State Mu. Ins. Co., 7 Cush., 7; Waring v. Smith, 2 Barb. Ch. R., 135 ; Clark v. Beach, 6 Conn., 151.) The deed to the plaintiff was void, the premises being held adversely at the time of its execution. (Burhans v. Van Zandt, 7 Barb., 91; Mosher v. Yost, 33 id., 277, 281; Crary v. Goodman, 22 N. Y., 170; Fish v. Fish, 39 Barb., 513 ; Webster v. Van Steenbergh, 46 id., 211; Livingston v. Proseus, 2 Hill, 526 ; Lowber v. Kelly, 17 Abb., 452.)

      Henry R. Selden and J. P. Whittemore, for the respondent.
    Stewart, if living, could redeem from the execution sale. (Howell v. Baker, 4 John. Ch., 120; Kerr on Frauds, 163; Howell v. Ransom, 11 Paige, 538; Lewin on Trusts, 725; Bush v. Lathrop, 22 N. Y., 535; Grimstone v. Carter, 3 Paige, 421; Hawley v. Cramer, 4 Cow., 723.) Craig was mortgagee in possession, and as such could not purchase the premises. (4 Kent Com., 164; Coote on Mort., 366; Trimleston v. Hamill, 1 Ball & Beatty, 385; Vanmetre v. Griffith, 4 Dana, 92; Jackson v. Delancey, 13 Johns., 537; Cholmondeley v. Clinton, 2 Jac. & Walk., 181; Bergen v. Bennett, 1 Caines’ Cas., 16; 1 Paige, 68; Gardner v. Ogden, 22 N. Y., 327; Dickinson v. Codwise, 1 Sand. Ch., 226; Davoue v. Fanning, 2 Johns. Ch., 252.) That the statute does not apply to buying equitable titles. ( Wood v. Griffith, 1 Swanst. Rep., 55 ; Allen v. Smith, 1 Leigh [Virg.] Rep., 231; Baker v. Whiting, 3 Sumner, 476; 4 Kent Com., 449, note a; Clapp v. Bromagham, 9 Cow., 556; Zeller's Lessee v. Eckhert, 4 How. [N. S.], 289.)
   Gilbert, J.:

There are two insuperable objections to the granting of the relief which the plaintiff seeks, unless a mortgagee can be converted into a trustee. In the first place, the conveyance from Mrs. Sanger to him, under which alone he claims any interest in the premises in controversy, is wholly inoperative and void as against the defendants, for the reason that, when said conveyance was made, the decedent, Mr. Craig, was in possession of said premises, claiming under a title adverse to that of Mrs. Sanger. There is, therefore, a fatal lack of that privity, which is requisite to entitle the plaintiff to redeem.

In the second place, assuming that the relations between the deceased Mr. Stewart and the decedent Mr. Craig, independent of the mortgages, were those of cestui que trust and trustee, still the plaintiff is a stranger to the trust. The purchase of Mr. Craig was not void, but was voidable only at the election of the cestui que trust, or his heirs or personal representatives. It is perfectly valid and effectual, both at law and in equity, unless that election be exercised within the time allowed by the rule governing such cases. No person, except the cestui que trust, or some one standing in his place, can be heard to make such election. The purchase shall stand, if the cestui que trust acquiesces in the sale. No one but the cestui que trust, has a right to call in question a purchase made by the trustee. If, under any circumstances, such a right of election to avoid a purchase made by a trustee, would pass to the grantee of the property purchased, by virtue of a conveyance thereof by the cestui que trust, no such result followed the conveyance by Stewart to Sanger; for the purchase by Craig, which the plaintiff seeks to avoid, was made several years after that conveyance. Nor did any such right inure to Sanger, by virtue of the covenant of warranty contained in such conveyance, for the reason that none existed in Stewart. Stewart, or his heirs or representatives, might, if the alleged trust be assumed, have claimed the benefit of Craig’s purchase, and in that way his grantee, including the plaintiff, might have succeeded to his rights. But no such claim has ever been made. On the contrary, for aught that the evidence shows, they acquiesced in the purchase by Craig.

Perhaps the court might, in a proper case, compel a person, standing in Mr. Stewart’s relation to the property in dispute, to disaffirm acts done by his trustee, which would work a breach of his warranty, and so avoid a purchase made by the trustee for his benefit, for the purpose of protecting the title of his grantees. But, for obvious reasons, no such decree could be made, unless the cestui que trust, or, in case of his death, his heirs or personal representatives, were parties to the suit. It is said that a trustee cannot set up a title adverse to his cestui que trust, and that a conveyance of the legal title to the lands in dispute, should be held to embrace an assignment of any equitable right to redeem. Granted. But, if the foregoing views are correct, the plaintiff is not a cestui que trust, nor had his grantor, Mrs. Sanger, any such equitable right to assign. If, for any reason, the conclusions we have expressed, should be deemed erroneous, we are nevertheless of opinion, that, upon the facts of the case, the purchase of Mr. Craig was a perfectly valid one. With respect to the findings of the court below —that the judgment under which Powers redeemed, was held by Benedict in trust for Stewart; that Powers took the assignment thereof, subject to that trust; and that Craig is chargeable with notice thereof—it is at least very questionable whether they are warranted by the evidence. It is not however necessary to discuss that question, because, as already shown, the plaintiff, being a stranger to the trust, cannot be heard to disaffirm the acts of the alleged trustees, or to claim in this suit, the benefit thereof himself. Stewart, the cestui que trust, or his heirs or personal representatives alone, are vested with that right. The court below did not find whether the legal effect of the transactions between Stewart and Benedict, in respect to the judgment, was a payment thereof, or whether the redemption, under the circumstances proved, was in contravention of the statute regulating redemptions, on the ground that it was made ostensibly by a judgment creditor, but really by a trustee of the judgment debtor, after the expiration of the period within which judgment debtors are allowed to redeem, or whether it was a fraud on the purchaser at the sale under the execution, or otherwise. These questions may not, therefore, be properly before us for adjudication. If the redemption was valid, Craig got a good title by the conveyance from Powers, which must stand until assailed by Stewart, or his heirs or personal representatives. If it was invalid for the reasons suggested, it was a nullity; and Craig got a good title in equity by his purchase at the execution sale, which he is entitled to have consummated by a conveyance from the sheriff, vesting in him the legal title. His receipt of the money ■ paid to him by Powers, in order to effect the redemption, did not destroy his ri^ht to such conveyance, unless Powers had a right to redeem. The redemption proceeding cannot bo held to be valid, for the purpose of destroying the rights of Craig as purchaser at the execution sale, and at the same time be held to be invalid for the purpose of avoiding the conveyance to Craig, made by the same person who effected the redemption.

The only remaining questions relate to the finding of the court below, that Craig, upon entering on the collection of'the rents, on the assignment of the lease of the property in dispute, was in the position of a trustee for Stewart, in respect to' that property, and that his purchase of the same, while he occupied that position, inured to the benefit of the eesíui que trust, at his election.” We • are of opinion that this finding is erroneous. It seems to us to be a perversion of the rule, which incapacitates trustees and persons holding confidential or fiduciary relations toward others from purchasing the subject of the trust, to apply it to a person occupying the position of the decedent, Mr. Craig. He held mortgages on the lands in controversy, to secure the payment of the bonds of Stewart, the mortgagor. He had also become liable as the surety of Stewart, and held, as an indemnity against that liability, another mortgage of the same lands, made by Stewart, and also an assignment of the lease thereof for a term of years between Stewart as lessor and one Cook. Treating the assignment of the lease as constituting the relation of principal and agent between Stewart and Craig, still, the subject of the agency was not the property in controversy, but the money received by Craig for the rents thereof for a limited period. Its sole object and purpose were to enhance the security afforded by the mortgage held by Craig for 'his indemnity. It was not intended to impair any rights of Craig, as mortgagee, or to impose any burden or disability upon him; nor did it charge him with the duty or obligation of paying off the judgment against Stewart, or of protecting the mortgaged premises for the benefit of the latter, in case the lien thereof should be enforced by a sale. The only duty assumed by Craig, was, to receive the. money paid to him by Cook; to apply the same as directed in the assignment; and, in a contingency which never happened, to relet the premises in Mr. Stewart’s name. That duty he performed, and beyond that, his agency did not extend. We have been referred to no authority, holding that such an agency, undertaken by a mortgagee, incapacitates him from purchasing an outstanding title to the property mortgaged, and it is believed none can be found. It would hardly be contended that an agency to receive and dispose of farm products, as directed by the principal, incapacitated the agent from purchasing the farm on a sale thereof, under a decree or execution against the principal; and yet, if there be a difference on this point between such a case and that now under consideration, it is in favor of the latter, for Mr. Craig had an interest of his own to protect by purchasing, in order to prevent such interest being cut off by the sale.

It is urged, that, upon taking the assignment of the lease, Craig, in contemplation of law, went into possession of the mortgaged premises, as mortgagee. We think that transaction had no such effect. He certainly was not in actual possession, although, ordinarily, the reception of rents and profits is equivalent to possession; yet he did not receive them in the capacity of mortgagee, or in the assertion of any right pertaining to him in that character. His right to receive them sprang solely from the assignment, and it would have ceased with the payment of the debt for which he had become surety. As mortgagee merely, he had no interest in, or right to demand or receive them, The question is material, only, upon the supposition that a mortgagee in possession, is a trustee for the mortgagor, and therefore incapacitated from purchasing. If that proposition should be established, the plaintiff might have a light to redeem. For the trust would be raised by implication of law, from the relations between the mortgagee and the owner of the equity of redemption. Opon this principle, Craig would have been a trustee for Mrs. Sanger. She would then have had the equitable right of enforcing the trust, and her conveyance to the plaintiff might be treated as an assignment of that right, which would be effectual, notwithstanding the hostile possession of Craig. But the rule referred to, has no application to mortgagees, whether in or out of possession. The relation between a mortgagee and the mortgagor, or his grantee, is not one of trust or confidence, nor has he any duty to perform in respect to the lands mortgaged, which incapacitates him from purchasing an outstanding title thereto. He is allowed by statute to purchase at a sale, conducted by himself, in execution of a power contained in his mortgage; and the seventy-third rule of this court, which has the force of a statute, authorizes him to purchase at a sale, under a decree of foreclosure to which. he is a party, plaintiff or defendant. Why, then, should he be precluded from purchasing at a sale under an execution against the mortgagor ? If in possession, it is his duty to account in a way onerous to him; not however as agent or trustee, but as creditor; for all that he receives, comes to him in his own right. After his mortgage is paid, he is bound to turn over the possession to the owner of the land, not because he went in under a trust which has ceased, but because the mortgage debt has -been satisfied. But no duty to protect the equity of redemption against a sale thereof^ arises on being in possession; nor is any power, in fact, conferred upon a mortgagee for that purpose, We think, therefore, it is a misnomer, to call a mortgagee a trustee of the mortgaged estate. He is a creditor having a lien. Like other creditors, who hold securities in other forms, he has opportunities to perpetrate fraud and oppression. The court will afford protection against such acts, but we are unable to discover any reason for taking a mortgagor out from the large class of debtors, who have become indebted upon the security of a pledge of their property, and thus practically making him a ward of the court. The judgments of the court of last resort in this State, appear to be decisive on this point. In Williams v. Townsend, . it was held, that a mortgagee might purchase the mortgaged premises, at a sale thereof for taxes. It does not appear that this mortgagee was in possession; but, in the subsequent case of Trimm v. Marsh, it was held, in effect, that a mortgagee in possession, who had caused the mortgaged premises to be sold under an execution in her favor against the mortgagor, might purchase at such sale. The question arose in a suit in equity, brought by the mortgagor to redeem, and the court held that a purchaser with notice, might set up the title, acquired by the mortgagee at the execution sale, against the claim of the mortgagor to redeem. The same doctrine prevails in England, and in our sister States. Ho case in which a contrary doctrine has been held, has been brought to our notice. Baldwin v. Bannister is not such a case. In Shaw v. Bunny, Lord J. Turnee states that, having examined the registrar’s book, he found that case to be no more than this: “ that the mortgagee had bought in the dower of the mortgagor’s widow for fifty pounds, and claimed to be repaid that sum upon the mortgage being redeemed, and it was decreed accordingly, apparently without dispute; and certainly there was no claim by the mortgagee, to hold the dower which he had purchased adversely to the mortgagor.” The principle on which the rule rests, also is against its application to a mortgagor, as will appear from an analysis of the real relation between mortgagor and mortgagee, and the rights and obligations of each. That has often been set forth in previous cases, and it would do no good to repeat it here.

Upon the whole, therefore, we are of opinion that the court below erred in its disposition of the case, and that the defendants are entitled to a new trial.

New trial granted, with costs to abide the event.

       1 R. S., 789, § 147; 2 id., 691 § 6

       Jackson v. Van Dalfsen, 5 J. R., 43; Same v. Walsh, 14 id., 415; Jennison v. Hapgood, 7 Pick., 1.

         Wilson v. Troup, 2 Cow., 238.

       Hunt v. Amidon, 4 Hill, 345.

      Iddings v. Bruen, 4 Sand. Ch., 239, 277.

       See Hollingsworth v. Spaulding, 54 N. Y., 636.

       Parkinson v. Hanbury, Law R. (2 H. L. Cases), 1.

      2 R. S., 546, § 7.

      Kirkwood v. Thompson, 2 De G., J. & S., 613; Clark v. Bush, 3 Cow., 151; See, also, Parkinson v. Hanbury, 1 Drew. & Sm., 143; S. C., 2 De G., J. & S., 450; S. C., Law Rep. (2 H. L. Case), 1.

      31 N. Y., 411.

       54 N. Y.;, 599.

       Cholmondeley v. Clinton, 2 Jac. & W., 182 to 185; Shaw v. Bunny, 2 De G., J. & S., 468; Knight v. Majoribanks, 2 Mac. & Gord., 10; Kirkwood v. Thompson, supra; Sug. V. & P. (8th Am. ed.), 689.

       King v. State M. F. Ins. Co., 7 Cush., 7; Walthall, Ex’r, v. Rines, 34 Ala., 92; Hurmder v. Roberts, 6 Flor., 711; Wordler v. Busch, 43 Mo., 231.

       Cited in 3 P. Wms., 251, note a.

        Supra.

       See Cholmondeley v. Clinton, supra; Astor v. Hoyt, 5 Wend., 603; Kortwright v. Cady, 21 N. Y., 343; Stoddard v. Hart, 23 id., 556; Trimm v. Marsh, supra, and cases cited.


text:
    FRANCIS H. BEARD and another, Respondents, v. LORENZO YATES, Appellant.

      Complaint — allegation of cause of action ex conti'aatu—proof at trial must correspond with.

    The complaint in this action set forth a grant of an easement of using all the water flowing from a pond which might be necessary to propel a grist mill; covenants in respect thereto by the grantor, and breaches of such covenants on the part of the defendant, who had acquired the title of the grantor; and asked for a judgment for $1,000. At the trial plaintiS failed to prove that any covenants were made by his grantor, but was allowed to recover for a tortious interference by the defendant with his rights. Held, that the complaint set forth a cause of action ex contractu, and that a recovery for a tort could not be sustained. There was not a variance only, but an entire failure of proof. Conaughty v. Nichols (48 N. Y., 83) and Ledwich v. McKim (53 id., 307) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. The facts are stated in the opinion.

      D. H. Bolles, for the appellant.

      S. S. Spring, for the respondents.
   Gilbert, J.:

The cause of action set forth in the complaint, is evidently one upon contract. It avers a grant of a privilege or easement of using all the water flowing from a mill-pond, which is necessary to propel a grist mill; covenants in respect thereto by the grantor, and breaches of such covenants by the defendant, who acquired the title of the grantor in the mill-pond, and thus became bound to perform the covenants. No one, reading the complaint, could reasonably infer that the pleader intended to set forth a cause of action, arising out of a tortious violation of the rights of the plaintiff. It is true, that, striking out the averments respecting the covenants, there would remain the allegations of the grant to the plaintiff, and the same allegation which is set forth as a breach of the covenant, namely, that the defendant had obstructed the rights thereby granted. But there is no allegation that the acts imputed to the defendant, were wrongfully or intentionally done, or that he knew that they were not a proper exercise of his own right to take water from the pond. We do not say that it is necessary, in framing a complaint in an action of tort, to use epithets; but when we are called upon to determine the real nature of a complaint, which, the pleader contends, sets forth a cause of action as well in tort as in contract, the absence of them may well be regarded, in construing the pleading. The only construction we can give the complaint, is, that it sets forth a cause of action upon contract, and that it does not fairly set forth one in tort.

Upon the trial no covenants were proved, but the plaintiffs were permitted to recover upon the liability of the defendant at common law, for a tortious injury of the plaintiffs’ easement, and the defendant duly excepted. We think the ruling of the learned justice at the circuit was erroneous, for the reason that there was not a variance only, within sections 169 and 170, but a failure of proof according to section 171 of the Code. The cases of Walter v. Bennett, Lewis v. Mott, De Graw v. Elmore, seem to us to be decisive on this point. Nor are the cases, Conaughty v. Nichols, and Ledwich v. McKim, in conflict with these cases. The principle dedueible from all of them, is, that the presence of allegations in the complaint, which are irrelevant to the case really made thereby, will not have the effect to change the action from one upon contract to one in tort, or vice versa, but that the case really set forth by the plaintiff in his complaint, cannot be changed upon the trial into one of a different nature. Such a principle is obviously necessary to the due administration of justice. While a party is not to be turned out of court because his pleading contains unnecessary averments, when it does fairly apprise his adversary of the claim made against him, yet he is to be held to a trial of the cause of action, actually set forth. And when a party sets forth a good cause of action upon contract, and avers and proves additional facts which render the defendant liable for a tort arising from the same cause of action, there is perhaps no hardship in allowing a recovery upon the contract, for a plaintiff may, in general, waive a tort and sue in assumpsit, and the defendant cannot be prejudiced by a recovery in the milder form. But there would be manifest hardship in allowing a recovery for a tort, in an action ex contractu, because such a recovery might subject the defendant to an imprisonment of his person. However that may be, we think the salutary rule, that a plaintiff must recover, if at all, according to his allegations as well as his proofs, has not been abolished by the Code.

For these reasons, the judgment must be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed and new trial granted, costs to abide event.

       16 N. Y., 250.

      36 id., 395.

         50 id., 1.

       42 id., 83.

       53 id., 307.


text:
    CHARLES E. YALE, as Administrator, etc., Appellant, v. JEREMIAH S. BAKER and others, Respondents.

      Administrator de bonis non — cannot open accounts of his predecessor — Mnal accounting—powerr of surrogate to open decree.

    An administrator de bonis non may sue to recover goods unadministered, but he has no power, nor is it any part of his duty, to overhaul the accounts of his predecessors in the trust. The latter are liable only to the creditors or next of kin.
    The surrogate has- no power to open a decree, made upon a final accounting, where no fraud in procuring the decree is alleged, and the errors suggested rest upon facts which are not positively stated, and do not appear in the proceedings themselves.
    Appeal from an order made by the surrogate of .Monroe county, denying an application of the petitioner for a resettlement of the accounts of the defendants.
    The defendant Baker was, on the 27th of August, 1868, duly appointed executor of Henry Van Burén deceased, and acted as such executor until the 7th of October, 1868, when he was superseded, and letters of administration with the will annexed were issued to the defendants, Sarah A. Van Burén and George R. Sandford. On the 26th of October, 1868, Baker had a final settlement of his accounts before the surrogate, and a decree of final settlement was entered. On the 27th of December, 1869, the accounts of George R. Sandford, and on the 13th of July, 1871, the accounts of Sarah A. Van Burén, were finally settled, and decrees of final settlement entered by the surrogate. On the 11th of March, 1873, the petitioner was appointed administrator of the estate. On the 31st of March, 1873, he applied to the surrogate to have the accounts of the defendants opened, and for a resettlement of the same, alleging various errors and mistakes, but nowhere alleging that the decrees were obtained by fraud. It appeared from the certificate of the surrogate, that neither the inventory of the estate, nor the vouchers filed by the administrators, could be found in his office. The surrogate denied the application.

      John Van Voorhis, for the appellant.

      George W. Rawson and W. P. Chase, for the respondents.
   Gilbert, J.:

The accountings sought to be opened, were all had before the surrogate who made the order appealed from. It now appears that the inventory of the estate of the decedent, and most of the vouchers filed in the office of the surrogate upon such accountings, have been lost. It would be a great hardship to the predecessors of the petitioner, to compel them to account over again under such circumstances, and it is manifest that an order compelling them to do so, might work great injustice. Upon the evidence before us, therefore, we should not be disposed to interfere with the discretion exercised by the surrogate. But we are satisfied that the order should be affirmed, upon the ground that it is not within the province of the petitioner to institute such a proceeding. An administrator de bonis non may sue to recover goods unadministered, but he has no power, nor is it any part of his duty, to overhaul the accounts of his predecessors in the trust. The latter are liable only to the creditors or next of kin. Nothing would be concluded or settled in the surrogate’s court, if the rule were otherwise.

Another insuperable obstacle to the maintenance of the petition, is, that the errors which it alleges, would require a mere review by the surrogate, of his former decrees. This can be done only by appeal. The surrogate, we think, acquired jurisdiction to make the decrees. No fraud in procuring them is alleged, and the errors suggested rest upon facts which are not positively stated, and are not apparent in the proceedings. Moreover, they are positively denied by the respondents, and they could be established only by extrinsic proof. In such a case, the surrogate has no power to open a decree.

The order appealed from must be affirmed, with costs.

Order affirmed, with costs.

       Beall v. New Mexico, 16 Wall., 535; Potts v. Smith, 3 Rawle, 361; Young v. Kimball, 8 Blackf., 167 ; Marsh v. People, 15 Ill., 285; Goodyear v. Bloodgood, 1 Barb. Ch., 617.

       Brick’s Estate, 15 Abb. Pr., 30; Sipperly v. Baucus, 24 N. Y.,49; Campbell v. Thatcher, 54 Barb., 382 ; Decker v. Elwood, 3 N. Y. Sup. Ct. R., 48.


author: Mullin, P. J.:

text:
    GILBERT J. STEVENS, Appellant, v. SHELDON G. STEVENS and others, Respondents.

      Donatio causa mortis—delivery—when. sufficient—“ Money ”—how construed.

    The plaintiff’s wife received from her father’s estate two promissory notes, one for $8,919, and the other for $100, the larger of which was, at the time of her death, held by one Hamilton, with her consent, as collateral security for money loaned to her husband, the smaller one being in a bureau in the dwelling house. A day or two before the death of the wife, several persons heard her say to her husband, “ you may have the money,” or, “ all the money.” The plaintiff claimed to hold the notes by a gift causa mortis. Held (1), that though the notes were not “ money,” yet, as it did not appear that the wife had any money or property except the notes, she must have intended to convey them by the use of that term; (2), that the gift of the larger note was invalid, no delivery being proved, and the note being in the hands of a third person as the property of the wife; but that the gift of the smaller one was valid as it was in a bureau in the husband’s house, and presumptively accessible to him.

      Appeal from a decree of the surrogate of Cayuga county, made upon the final settlement of the plaintiff’s accounts, as administrator, etc., of Eliza Stevens, deceased.
    Eliza E. Stevens, the wife of the appellant, received, for her interest in her father’s estate, two promissory notes, amounting to the sum of $4,019. The appellant was indebted to one Hamilton, and, with the consent of his wife, he transferred to said Hamilton the larger of said notes (the one for $3,919), as collateral security for the payment of said indebtedness. Mrs. Stevens died on the 30 th April, 1872, leaving three minor children. At the time of her death, the large note, above mentioned, was held by Hamilton as collateral security as aforesaid. The other and smaller note was in a bureau in her dwelling house. After his wife’s death, the appellant applied for letters of administration on her estate, and letters were issued in due form of law by the surrogate of Cayuga county, who had jurisdiction to issue the same. The appellant filed an inventory of the estate of his wife, in which were included the notes above mentioned, and certain articles of household furniture. It was verified by the appellant, as her administrator. He gave the bond for the faithful performance of his duties as such administrator. After the death of the wife, he collected the moneys due on said notes. On the settlement of his account as ¡.dministrator, he claimed to be entitled to the whole personal e.-tate of his wife in his own right, and also that she gave him the notes on her death-bed. Evidence was given by the appellant, to establish a gift causa mortis, but the surrogate held and decided, that a gift was not established by the proof, and that he was entitled by law to but one-third part of the wife’s estate, and that the minor children were entitled to the remaining two-thirds; and a decree was entered accordingly, and from it the appellant appeals.
    On the hearing before the surrogate, the appellant’s counsel inquired of him, while testifying as a witness in his own behalf, how long he (the witness) had been in possession of the larger note, at the death of his wife — whether he was in possession of it before she died % These questions were objected to by the counsel for the minor children, and they were overruled, and the appellant’s counsel excepted. Several witnesses testified that they saw the appellant’s wife a day or two before she died, and heard her say to the appellant: “You may have the money,” or “all the money.” The witnesses saw no money, nor did anything pass from the wife to appellant.

      A. W. Shurtleff, for the appellant.

      E. A. Woodin, for the respondents.
   Mullin, P. J.:

The decree of the surrogate must be modified. The questions referred to above as having been overruled by the surrogate, were competent, and should have been allowed by the surrogate. They did not call for any communication nor transaction between the deceased and her husband. If there was any aspect of the case, in which the answer would be incompetent on that ground, it was the duty of respondent’s counsel to state it. The questions might be answered without calling out any incompetent evidence. There was no gift of the larger note causa mortis, as there was no delivery of the thing claimed to be given. At the time when the pretended gift was made, the note, which was the subject of it, was in the hands of Hamilton, who held it as the property of the wife, and it was not actually or constructively in the possession of the appellant. If a gift of “money” would, under any circumstances, convey the note, still, there should have been a delivery of something evidencing the debt, in order to make it valid, or the appellant must have had the actual possession of the thing intended to be given. This he did not have.

The small note was in his possession; that is, it was in- the bureau in his house, and presumptively accessible to him. I think he was entitled to the small note, or its avails. The notes were not money; and, if the language of the wife is to be strictly construed, the notes did not pass to the plaintiff. Regard must be had to the intention of the donor, rather than to the language in which the gift was made. It does not appear that she had money or property of any kind, except the notes and household furniture.

She meant to give something to the plaintiff, and, as there was nothing but the notes to give, we must hold that they were what she intended-to give. They were but the evidences of a money indebtedness, out of which, or by means of which, money was to be realized. They were the representations of money, and a gift of them was, in law, a gift of the money.

The decree must be modified, so as to allow the appellant the $100, in addition to the amount awarded by the surrogate, and, as modified, it is affirmed, without costs to either party.

Present — Mullet, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

       Fulton v. Fulton, 48 Barb., 581; Champney v. Blanchard, 39 N. Y., 111; Allen v. Cowan, 23 id., 502.


text:
    CHARLES P. ADAMS, Respondent, v. WILLIAM M. FARR, Appellant.

      Trespass—who may maintain action of.

    In 1865, Davis and Comstock agreed to convey to one Tallent a saw-mill, together with the machinery therein; the contract providing, that tire grantors did not part with, nor was the grantee to acquire, any title or interest in the same, nor was the grantee to remove any of the machinery therefrom, until the whole purchase-money was paid. This action was brought by the plaintiff, who had acquired the title of D. & C., against the defendant for removing portions of the machinery. The defendant justified under a conveyance and license from Tallent. After the delivery of the agreement to Tallent, neither the plaintiff nor his grantors were in possession of the mill. Held, that the plaintiff was the legal owner of the property; that Tallent, having no interest therein, could not convey any to the defendant; that his entry was unlawful; and that he was a mere trespasser, against whom plaintiff might maintain an action.
    Appeal from a judgment in favor of the plaintiff) entered upon the report of a referee. The facts are stated in the opinion.

      J. B. Finch, for the appellant,
    cited Stuyvesant v. Dunham (9 John., 61); Frost v. Duncan (19 Barb., 560); Schermerhorn v. Buell (4 Denio, 424); Freer v. Stotenbur (36 Barb., 643).

      Cary & Jewell, for the respondent,
    cited Pierce v. Hall (41 Barb., 142); Gardner v. Heartt (2 id., 165).
   Mullin, P. J.:

This action is brought to recover damages for the unlawful entry of the defendant into a certain stave saw-mill, near the village of Olean, and breaking and carrying away certain chains, bolts, wheels, and other parts of said mill. The answer denies the complaint, and sets up as defenses, the non-joinder of several parties plaintiff.

In October, 1865, the premises and property in question were owned by Davis & Comstock in fee, and on the twenty-first of that month, they executed and delivered to Alfred Tallent, an agreement to sell and convey to him said premises and property, for the sum of $20,000, to be paid in certain installments, mentioned in said contract. It was provided in and by said contract, that the said Davis &■ Comstock neither parted with any title or interest in said premises, nor should -Tallent acquire any, in law or in equity, until oi unless he paid the whole of said purchase-money; and it was further provided that said Tallent should not remove and take away from said premises, any of the machinery or property located on said land, until he should pay for said property. In January, 1868, Davis, who had then acquired the interest of Comstock in said premises, conveyed them to Frank Stowell, subject to the contract to Tallent, excepting therefrom one-fourth part thereof conveyed to Korneman. In 1869, Stowell conveyed the same to Calvin T. Chamberlain. In August, 1869, Chamberlain and wife conveyed to the plaintiff. The one-fourth part, conveyed to Korneman, was by him conveyed to plaintiff in the same month. The defendant justified the taking of said property, under a sale of the same to him by Tallent, in July, 1868. ISTeitlier Stowell, nor any one claiming under him, was in possession of said premises and property, after the agreement to sell to Tallent in 1865.

The mill was not operated after 1868. Upon these facts, it must be held that the plaintiff was the legal owner of the property, and that the defendant was not, at the time of the removal thereof from the mill. The only remaining question, then, is, can the plaintiff,, not being in the actual possession of said mill and property, maintain an action for the illegal entry upon the real estate, and the severance and removal of the machinery, etc., therefrom. Tallent, having no interest in said premises and property, could not convey any to the defendant. Their entry and removal of the property were unlawful. They were wrong-doers; and the plaintiff is the only person who can maintain an action against them, or either of them.

The appellant’s counsel insists that the action is trespass, and that form of action can only he maintained by the person in the actual possession; and, as Tallent was in the actual possession, and the plaintiff was not, at the time of the illegal entry, the latter cannot maintain the action. If we are right in holding that Tallent never had the legal right to the possession of said property, as against the plaintiff and his grantors, the very ground-work of this branch of the defense fails. The legal title draws after it the right to immediate possession, and such right is sufficient to maintain trespass against one entering without right.

If the referee was right, in holding as matter of fact that the personal property removed by the defendant, was so annexed to the mill as to become part of it, the removal of it was an injury to the reversionary interest of the plaintiff, if Tallent can be said to be in the actual possession. For an injury to such an interest, an action on the case lay at common law, and possession was not necessary to maintain such an action.

The plaintiff was clearly entitled to recover, and the judgment must be affirmed.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

      1 ChittyPl., 72.

       Chitty PI., 72, 160; Randall v. Cleaveland, 6 Conn., 328; Robinson v. Wheeler, 25 N. Y., 252.


text:
    HENRY O. HOWARD and others, Respondents, v. GEORGE K. MOOT, Appellant.

      PuMeney estate—title of—power of legislatwre to provide for perpetuating testimony— Chapter 19, 1821.
    The legislature had power to pass the act, chapter 19, Laws of 1821, to perpetuate certain testimony respecting the title to the Pulteney estate in this State.
    The act is not rendered unconstitutional by its failure to provide for the service of notice of the taking of the testimony, upon the parties interested in rebutting the evidence, which the act provided should be taken, and which, when taken, was made prima facie evidence of the facts testified to.

      The legislature has power to determine what shall, in civil cases, be received by the courts as presumptive evidence.

      Hand v. Ballou (12 N. Y., 541) followed.
    The second section of the act provides, that if the chancellor shall be of opinion that the depositions of the witnesses furnish good prima facie evidence of the facts therein set forth, he shall pronounce such opinion, and that thereupon copies of such depositions, after the same shall have been duly filed and certified, shall be received and read, aspi'ima facie evidence of the facts set forth in such depositions, in all courts. Held, that the act made the chancellor the exclusive judge of the weight to be given to the evidence, and his decision on that point could not be reviewed.
    Where, upon the probate of a will in this State, in 1820, it was proved that the testator, at the time of its execution, was of full age, held, that as no person under twenty-five years could make a valid will, this was full age, and the witness must have so intended.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury directed by the court at a trial at the circuit.
    The action is brought to recover 100 acres of land in Spring-water, Livingston county. The only question involved in the case was the validity of the title to what is known as the Pulteney estate. The validity of this title has already been before the courts, in the cases of Duke of Cumberland v. Graves (7 ÍL Y., 305, and 9 Barb., 595), and of The People v. Snyder (411ST. Y., 397, and 51 Barb., 589), in which the facts relating to the title are fully set forth.

      Scott Lord, for the appellant.

      William Rumsey, for the respondents.
   Mullin, P. J.:

The court of chancery, from the earliest time, entertained bills to perpetuate testimony, in cases in which an action could not be presently maintained, to be used when an action should be brought, in which such evidence was admissible. The legislature, as early as 1806, provided another mode of perpetuating evidence, less expensive, but as effectual as the proceeding by bill. To entitle a party to proceed in either way, it must be made to appear that the person applying, either was, or expected to be, a party to a suit; that the testimony was material; and, if the suit was not actually commenced, that the opposing party resided in the State.

Neither the owners of the unsold lands of the Pulteney estate, nor the purchasers of such lands, could perpetuate evidence in chancery, or under the statute. And, in the case of the purchasers, each purchaser must proceed, or such as did not, might be subjected to the risk of failure to establish title in his grantors to the land held by him. To remedy the defect, the legislature, in 1821, passed an act, entitled “ An act to perpetuate certain testimony respecting the title of the Pulteney estate in this State.” Under this statute, the testimony was taken once only, and was available in behalf of all persons interested. It is by the evidence thus taken and used on the trial of this action, that the validity of the act itself and the competency of the evidence are brought in question.

The appellant’s counsel denies the power of the legislature to pass this act, but it will be seen that the perpetuation of evidence was a part of the jurisdiction of chancery; and the practice in that court and its jurisdiction were wholly within the control of the legislature; it could grant or take away and change the mode of procedure at pleasure. If it might lawfully provide for perpetuating evidence, otherwise than by bill in chancery, it could amend or repeal the act authorizing it. In short, the whole subject was within the control of the legislature, and its action is not open to discussion. It is said that the act, under consideration, takes away from the party against whom the evidence is used, rights to which he was justly entitled, and of which he cannot lawfully be deprived. The act makes no provision for notice of the taking upon the parties interested in rebutting the evidence, that the act provides should be taken, and the evidence, when taken, is made grima, facie evidence of the facts testified to, thus changing the burden of proof from the shoulders of those who labor to maintain the title of Pulteney and those claiming under him, on to those who may claim in opposition to such title.

The legislature, in 1850, passed an act making a comptroller’s deed of land sold for taxes, presumptive evidence of the authority of the comptroller to sell and convey the land, and that all proceedings had, and acts done, prior to such conveyance, were regular and in conformity to law. Here was a manifest change of a rule of evidence prior to the passage of said act, and the person claiming under the deed, had the benefit of no presumption in favor of the deed, but was compelled to prove the regularity of each step in the proceedings to sell said land. The Court of Appeals, in Hand v. Ballou, held the act to be constitutional, although there was no provision made for hearing the persons against whom the presumption was made to operate. Johnson, J., gives emphasis to the decision by saying, the legislature certainly have power to determine by law what shall, in civil cases, be received by the courts as presumptive evidence.” In view of this decision, a further discussion of the question of the power of the legislature to change the rules of presumptive evidence, is wholly unnecessary.

The appellant’s counsel further insists, that the evidence taken under the interrogatories, is not competent, legal evidence, to establish prima facie, the facts in support of which the evidence was taken. The act makes the chancellor the exclusive judge of the weight to be given to the evidence, and his decision on that point cannot be reviewed. If the legislature has the right to change the rules of evidence, it surely has the power to impose such restriction upon the operation and effect of the evidence as it deems proper. In the case under consideration, instead of declaring that, upon the production of the title deeds and instruments relating to the Pulteney estate, the presumption should be that they vested in the purchasers or other persons a valid legal title to the lands embraced therein, it is provided that such presumption shall not be allowed, until evidence shall be taken, that the highest judicial officer in the State shall declare to be, in his opinion, sufficient to establish prima facie, the facts which the statute permitted to be proved.

The appellant’s counsel objected to the admission of the will of Sir John Lowther Johnston, because it was not proved, at the time of proving said will, that the testator was of the age of twenty-one years. It was proved at the time of executing said will, the testator was of full age. The will was offered for probate in this State, and it must have been executed in conformity with the laws of this State; and one of the essentials was, that the testator should, at the time of executing the same, be twenty-five years of age. This was full age, and no person under twenty-five could make a valid will. If he was not, the witnesses who swore he was of full age, when in fact they knew he was not, were guilty of perjury; and it would not have been a defense, that the will was made in Scotland. By the Scotch law, a person of the age of eighteen years could make a will. The objection was properly overruled.

In view of the transfer by this State to the State of Massachusetts, of the lands known as the Pul ten ey estate, and of the transfer of said lands by Massachusetts to Phelps and Gorham, and of the subsequent conveyances of the same with the sanction of the legislature, and of the treaty between the United States and Great Britain, ratifying and confirming the title of British subjects to lands held by them, we must declare the title to this estate valid, regardless of all mere technical objections thereto. In the case of the People v. Snyder, many of the objections, relied upon by the appellant’s counsel, were considered, and although the pleadings in that case rendered an examination of them unnecessary, it is nevertheless obvious that the Court of Appeals did not consider them of any importance. It would be little short of madness for the courts, at this day, to cast doubt upon, much more to hold invalid, the title to the Pulteney estate. For myself, I have not the courage to do so, even if the objections thereto were more formidable than they appear to me. The judgment must be affirmed.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

      2 Kern., 541.

      41 N. Y., 397.