author: Bosworth, Ch. J. Robertson, J.

text:
    John R. Currie, Plaintiff and Respondent, v. Edward P. Cowles, impleaded, Defendant and Appellant.
    1. In an action to compel an attorney and counselor at law to convey real estate to the plaintiff, where it is found that the same was sold at Sheriff’s sale, and that the plaintiff, at the time of such sale, had a lien thereon by judgment, and was otherwise interested therein, and that the defendant agreed with the plaintiff, and undertook, as such attorney and counselor, prior to the sale, to attend the said sale and protect his interests, attend to the redemption thereof, and procure the title for the plaintiff, and such attorney, at such sale, bought the property in his own name, and took a Sheriff’s deed therefor after the time for redemption expired, but refused to convey to the plaintiff; the attorney is entitled, as a condition to making such conveyance, to be paid, not only the amount of his bids and other advances to perfect such title, but also a just compensation for any professional services rendered by him for the plaintiff in procuring any moneys for the plaintiff which it was his duty to apply in redeeming the premises and in perfecting the title thereto.
    2. Even if it be proved that he acted so fraudulently in the matter of obtaining the title to the land in question that he thereby forfeited his claim to compensation for his services in that transaction, he is not, for that cause, to be deprived of a just compensation for professional services rendered in distinct proceedings in which no fraud is imputable to him.
    3. Where he is charged as trustee of the land, and required to convey it to his client as the equitable owner, or account for its value, he is entitled to be paid for his reasonable services in perfecting the title.
    4. An equitable as well as a legal defense may be set up as a counterclaim.
    5. Proof of a counterclaim cannot be rejected, on account of its being imperfectly stated in the answer, where the only objection is, that it is not stated with sufficient definiteness and certainty. The remedy in such a case is a motion to make it more definite and certain.
    6. Where a fact is found, which is not alleged in the pleadings, and the finding states that its existence “was conceded on the argument on both sides,” and the case, in its history of the proceedings at the trial, does not show that anyosuch admission was made, but does show that evidence to prove the alleged fact was excluded on the appellant’s objection; whether such fact, if essential to uphold the judgment, can be deemed to have been established at the trial, gwere. (Per Bosworth, Ch. J.)
    7. Where the complaint does not allege any incapacity of the defendant to convey a good title, nor that he has sold, or in any way disposed of the land, and prays specially that the defendant be compelled to convey it to the plaintiff, and claims no other relief from him in that behalf, and where the defendant’s conduct in the transaction is not proved to be fraudulent, the plaintiff cannot be permitted at the trial to waive the relief prayed, and make proof that the defendant has no title, and thereupon charge him with the value of the land. (Per Robertson, J.)
    (Before Bosworth, Ch. J., and Robertson, J.)
    Heard, February 21st;
    decided, March 24th, 1860.
    John" R. Currie is plaintiff in this action, and Edward P. Cowles and Wife, and the President, Directors and Company of the Housatonic Bank, are the defendants. The suit was commenced October 15, 1855.

      The complaint states that William and James Currie owned the houses and lots, No. 263 Tenth street; Nos. 131 and 133 Eleventh street, and No. 58 East Twenty-Sixth street, in the city of New York, and being embarrassed, assigned them to Gr. H. Hendrickson, who contracted to sell them to one Van Pelt, and the latter assigned the contract to the plaintiff who applied to E. P. Cowles “ as an attorney and counselor-at-law,” to obtain a conveyance thereof from Hendrickson. That E. P. Cowles prosecuted Hendrickson and obtained a judgment for specific performance, and the latter, about January 4th, 1854, conveyed them to the plaintiff.
    That in the-year 1852, the plaintiff, by assignment of Wm. S. Bright, administrator of John Bright, became owner of a judgment recovered in this, or in the Supreme Court, against Wm. and Jas. Currie, for about five thousand dollars.
    That the Housatonic Bank had a judgment against Wm. and Jas. Currie and one Stephen Grunn, which was a lien on said houses and lots, prior to the title of the plaintiff derived from Hendrickson, and prior to the lien of the plaintiff’s judgment
    That the Housatonic Bank had issued execution on its judgment, and advertised said houses and lots to be sold on the 28th of March, 1854. That E. P. Cowles, “ so being such attorney and counsel of the plaintiff in the premises, undertook and promised to attend the said sale, and to represent the plaintiff thereat, and to fully protect the plaintiff’s interest in the premises,” in consequence whereof the plaintiff did not attend the sale, but confided his interests relative thereto, wholly, to said Cowles. That the Housatonic Bank gave Cowles “ a power of attorney to attend and bid at said sale,” but gave it to enable Cowles to protect their interests and without expectation that he would bid in either of the houses and lots for the Bank.
    That Cowles, at said sale, bid in the houses and lots in his own name at the aggregate sum of $3,400; and did not, until after this suit was brought, inform the bank that he had bid off or held the property for the bank. That on the day after the sale Cowles, by letter, dated March 29th, 1854, wrote to plaintiff thus: “I have agreed to sell to Jones for $5,500. I bid in the property for the IIous. Bank, here to-day, and you, of course, are the redeeming party; and I will send you up papers to sign soon. The Hous. Bank judgment will be paid off as follows:
    1st. My bid on Tenth street,................................ $1,500
    2d. “ “ “ 2 houses in Eleventh street,.................... 900
    3d. “ “ “ Jones’ house................................. 1,000
    4th. Surplus in Whaling foreclosure case, just about............. 2,000
    5th. On Harlem, lots, just about,............................. 1,000
    6th. On R. R. property in Hudson, less costs,.................. 2,350
    7th. Glunn’s estate, less costs, &c., just about................... 2,400
    Funds to pay with,................................. $11,150
    Amount of Hous. Bank judgment, Sheriff’s fees, interest, &c., say,. 10,750
    Surplus over,...............................:......
    Over and above all this you will realize as follows, viz.:
    From Alston judgment,................................ $3,980
    From Staples, say,................................... 4,500
    From Abner Jones, over and above bid,................ 1,500
    From Tenth and Eleventh streets (sure over bid),......... 4,000
    From Harlem lots, at least $500, and so up to $1,500, say, for safety,......................................... 500
    $14,480
    $400
    * * * it I have labored at this matter, to bring this amount about, and have had more difficulties to contend with than you can fancy, but as you could not have helped me, I have not said much about them. * * * How you can breathe freely, because your money is all secure, with costs, &c. Hoping, John, that you will now feel perfectly easy in your boots,
    I am, very truly, yours, &c.”
    It also states that the remark, “ I have agreed to sell to Jones for $5,500,” relates to Ho. 58 East Twenty-Sixth street, and that Cowles did sell and convey this lot to Jones for $5,500, and received the consideration money over and above a mortgage of $3,000 thereon, being $1,500 more than he bid for it.
    That Cowles, besides the receipt of this $1,500, “ had other moneys and securities in his hands belonging to the plaintiff,” which, in all, were enough to have paid Cowles’ bids with interest, “ and to have redeemed the said three houses and lots in Tenth and Eleventh streets.”

      That Cowles assured him, that he “would see that the said Tenth and Eleventh street houses and lots should be redeemed for said plaintiff, and the aforesaid moneys and securities * * should be applied for that purpose, and the interests of the plaintiff duly and fully protected in the premises.”
    That on the 11th of March, 1855, the plaintiff wrote to Cowles, inquiring if it was necessary for him to redeem and take title to the Tenth and Eleventh street houses in twelve months from the day of sale—“and, if so, I want you to inform me how much money is needed, above what you have in your hands, and by what day I must furnish you the amount.” By letter, dated March 12th, 1855, the defendant replied {inter alia): “ The Sheriff’s deed is not due until the last part of June, although the owner has to redeem in twelve months. I shall, of course, let you have it at the end of the fifteen months.”
    That since the time for redemption has expired, Cowles pretends that he bid in the property for himself, and had a right to sell it, and would do so unless the plaintiff would accede to certain terms which were wholly unjust.
    That Cowles has received from the Sheriff a deed for said three houses and lots, and holds the legal title in his own name; and that the plaintiff has demanded a deed of them, which Cowles refused to give. That Cowles, “ with intent to deceive and defraud the plaintiff, fraudulently induced the plaintiff to believe that the said Cowles would do all that was necessary to fully secure the plaintiff, and guard and protect his interests, * * * with intent that the plaintiff might be led to keep quiet ” and do nothing to effect said redemption, until the time to redeem had expired. That it was his duty to have paid over in due time to the Housatonic Bank, the moneys of the plaintiff in his hands to the amount of his said bids, and taken such other steps as were necessary to vest title in the plaintiff, all which he had neglected to do; “that by means of the aforesaid breach of duty, and of the said improper proceedings on the part of said Cowles,” the plaintiff will be largely damnified, unless the Court shall adjudge that Cowles convey to the plaintiff, pay the loss of rent, and the expenses and injury to the premises necessarily occasioned by Cowles, in his management of them, since he has held title thereto.

      That the Housatonic Bank claims to have an interest in said three houses and lots, and that Cowles holds the title for said Bank.
    It prays judgment, that Cowles and wife convey the three houses and lots to the plaintiff; that a Receiver of the rents, issues and profits be appointed, that the Housatonic Bank be declared to have no interest in the said three houses and lots; and that Cowles “ be adjudged to pay to the plaintiff all such damages as the said plaintiff may have sustained and suffered by reason of the negligence, fraud and acts of the said Edward P. Cowles in the premises, and that the said Edward P. Cowles may also be * * required to come to a true and just accounting with the plaintiff, of and concerning the money and securities aforesaid * * and pay over the balance that may be found due,” with costs of the action.
    The answer denies most of the material allegations of the complaint; states the transaction as Cowles claims the facts to be; and has annexed to it a statement of all moneys which Cowles, as he avers, had received from or for the plaintiff, and
    which amounted in all to,...................... $11,994 16
    Also a statement of the moneys, which he avers he had paid out for the plaintiff, being in all,...... 9,533 29
    Excess of receipts over disbursements,..... $2,460 87
    It also alleges that Cowles had performed services in various specified matters, as attorney and counsel for the plaintiff, that he is entitled to receive therefor the sum of $1,500, “which amount said Cowles sets up as a counterclaim against him, the said plaintiff herein, and claims judgment therefor.”
    The plaintiff replied to so much of the answer “ as purports to set up a counterclaim against this plaintiff.” The action was referred to George P. Nelson, Esq., as Referee.
    The facts found by the Referee affirm, in substance, the truth of the allegations of the complaint. He found in terms, that Cowles was employed as an attorney and counselor-at-law, by the plaintiff to attend the said sale, and “ on said sale to protect the interest of the plaintiff herein, in relation to said claims and property, and to procure the title of said lots for the plaintiff,” and that he “undertook, as such attorney and counsel of the plaintiff, that the plaintiff should, before the time for redemption thereof should expire, receive and have the title of the said four lots, as the redeeming party, and become the grantee thereof.” That after the time for redemption had expired, he refused to convey the Tenth and Eleventh street houses and lots to the plaintiff, unless he would consent to pay Cowles the amounts which he claimed were due to him from the plaintiff, “ and also from one James Currie, a brother of the plaintiff, for legal services rendered,” or alleged to have been. That the acts and doings of Cowles in the premises, “ were fraudulent towards the client, the plaintiff, and a breach of the duty of said Cowles, as such attorney and counsel.”
    He also found that Cowles had rendered various legal services for the plaintiff in eight separate matters which he specifies, but that “the amount and value of most of said services are vague and unsatisfactory.”
    That there is in the hands of Cowles, and has been since September 12, 1855, of moneys belonging to the plaintiff and left with Cowles to be applied in obtaining title to the lots for the plaintiff, the sum of $2,586.17, without including any interest.
    “ That it was conceded on the argument on both sides, that the said three lots had been sold since the said redemption day, by virtue of a judgment obtained in foreclosure of the previous mortgages thereon,” and that Cowles could not, by any conveyance to the plaintiff, transfer to him any interest therein. [To this finding the defendant excepted.] The Case, in its statement of the proceedings had at the trial, does not mention that any such admission or concession was made. It shows that the plaintiff offered to prove such a foreclosure and sale, and that, on the defendant’s objection, the Referee excluded it.
    The Referee found, as conclusions of law, that the plaintiff was entitled to a judgment against Cowles, for $4,100, the difference between the value of the Tenth and Eleventh street houses and lots, and his bids therefor .at the Sheriff’s sale, with interest thereon, being in all $5,271.91.
    That said Cowles, “by his fraudulent action in the premises, as such attorney and counsel towards his client, the plaintiff, has forfeited his right to costs and counsel fees for the services rendered by Mm as aforesaid, and is not entitled to setoff or counterclaim the same against the claim of the plamtiff.”
    That a conveyance of the three houses and lots by Cowles and wife to the plaintiff, had become impracticable by reason of the foreclosure of the previous mortgages thereon, and a sale under such foreclosure; and that the plaintiff should have judgment for $5,271.91, and costs. Judgment was entered accordingly, and Cowles duly excepted to the decisions of the Referee, and appealed from the judgment to the General Term.
    Such portions of the testimony as are necessary to an understanding of the points decided at General Term, will be found in the opinions delivered.
    The evidence affecting some questions of fact which are discussed in the opimons is omitted, as not affecting the main questions decided on the appeal.

      E. P. Cowles, appellant (in person).

      L. R. Marsh, for respondent.
   Bosworth, Ch. J.

If the appellant was entitled to a credit for the just value of any of the services, rendered by him for the plaintiff, which are set up in the answer, the judgment is necessarily erroneous.

In the answer they are set up “ as a counterclaim,” and $1,500 is alleged to be their value, and a judgment of $1,500 as their value is prayed. That the pleading is so defective in form that a motion that it be made more definite and certain would have been granted, may be conceded for the purposes of the present inquiry; and yet it will not follow that the appellant should not have been permitted to prove the matters alleged, and have been allowed the sums established by the evidence to be just.

Ho motion was made, under section 160, to make this part of the answer more definite and certain; nor was the sufficiency of it tested by demurrer under section 153 of the Code. On the contrary, the plaintiff replied to the allegations contained in this part of the answer, and replied to them as purporting to set up a counterclaim.

On such a state of facts, it seems to us that we cannot avoid enforcing against the plaintiff the rule stated and applied in Seeley v. Engell, (3 Kern., 548, [II.;]) that, having omitted to move, under section 160 of the Code, “ and especially by replying as though he understood what was intended to be set up, he was precluded from objecting to the evidence on the trial.”

The Referee, at one stage of the trial, seems to have acted upon this principle; for, although the plaintiff objected to the admission of the evidence, the Referee overruled the objection, and admitted it.

This decision being in favor of the appellant, he is entitled, for the purpose of determining the question whether he shall have a new trial, to have that decision treated as being correct. (Rogers v. Murray, 3 Bosw., 357-365.)

Unless, therefore, upon facts found correctly, (in the sense that they are sustained by sufficient evidence,) the Referee has rightly held that the appellant is not entitled to setoff or counterclaim the amount of a just compensation for his services, on the ground that he has forfeited all right to be paid anything for them, the judgment is necessarily erroneous.

The Referee has found, as a fact, that the appellant “ had rendered various legal services for the plaintiff” in eight several matters which he specifies, besides his services “ in relation to the said four houses and lots” which are the subject of the plaintiff’s action; and he holds, as a conclusion of law on all the facts found, that the appellant “ has forfeited his right to be compensated for any of them.”

On what principle he has forfeited his right to compensation for any of his services except those in relation to said four houses and lots, or except in relation to the matters and proceedings in which he had violated, or in bad faith had failed to perform his professional duty, was not suggested to us on the argument of this appeal. But the respondent’s counsel, as we understood him, did not contend for a rule that would make professional infidelity in one suit work a forfeiture of the right to compensation for meritorious services honorably performed in another.

The Referee, therefore, assuming the facts found by him to be warranted by the evidence, could not justly, upon any recognized rule of equity, disallow a just compensation for services rendered in suits and proceedings disconnected from the appellant’s alleged employment and undertaking, to attend the sale of the four houses and lots by the Sheriff, and protect the plaintiff’s interests in respect thereto, “ and to procure the title of said lots for the plaintiff.”

The complaint alleges a contract between the plaintiff and the defendant, by force of which he was to bid in the four houses and lots at a Sheriff’s sale of the same, to protect the interests of the plaintiff as the owner of the equity of the redemption thereof, and to redeem the same for the plaintiff’s benefit; and that although he had perfected the legal title in himself, yet that in equity, if not in fact, they were redeemed by the plaintiff, and that he is entitled to a conveyance thereof; and prays as relief that the appellant and his wife be adjudged to convey the same to him ; that the appellant be also adjudged to pay all damages which the plaintiff has sustained by reason of the “ negligence, fraud and acts ” of the appellant in the premises; and that the appellant “ be required to come to a true and just accounting with the plaintiff of and concerning the moneys and securities aforesaid, which he had of has of and for the use of the plaintiff, and pass over the balance that may be found due.”

“The moneys and securities aforesaid,” referred to in the prayer for judgment, were, as to most of such moneys, collected and obtained through the services of the appellant as the attorney and counsel of the plaintiff, in suits or proceedings in his behalf against third persons, and upon all just principles of accounting in respect thereto, the appellant, while compelled to account for the amount so received, and for the amount of profit which the plaintiff will have realized from a just and equitable use or application of them, should be allowed such sum as will fairly compensate for conducting the suits or proceedings in and by means of which such moneys were collected.

The action is founded on a contract alleged to have been made between the plaintiff and the defendant, and the Referee has not only found that it was made, but has found, what the complaint does not allege, that the appellant was employed “ to procure the title of said lots for the plaintiff.”

The Referee has also found as facts, that certain specified acts of the appellant “ were fraudulent towards his client, the plaintiff, and a breach of the duty of the said Cowles, as such attorney and counsel.”

The Referee has not otherwise or in other language found, as a matter of fact, that the appellant actually intended to defraud, or that he actually intended to be guilty of a breach of known or conscious duty.

In Hawley v. Cramer, (4 Cow., 744,) the rule, in an analogous case, was held to be, that, where the estate has been sold to a bona fide purchaser, so that the party equitably entitled to it, or to the proceeds which might be realized from a resale, cannot reach the same: the defendant shall be compelled to account for all that he has made by his disposition of it, and must pay interest on the profits realized.

In the present case the Referee has given, or assumed to give, to the plaintiff the full value of the property at the time at which he holds the plaintiff’s equitable title became perfect, over and above what he should have paid to perfect such title, with interest on such value from that date.

He has, therefore, not charged the appellant with any amount which it is found, as a fact, that he had realized, but has made him a purchaser at its then fair value, and charged him with that sum and interest, or has assumed to do so. But, in Hawley v. Cramer, (supra,) the Chancellor, although he held the sale complained of, and which was made through the agency of an attorney at law, a fraud upon the complainants, and the attorney a party to such fraud, yet, while he gave the complainants their proportion of the sum obtained on a resale of the property made by the purchasers at such fraudulent sale, also allowed to such attorney, not only his costs of the suit, but the moneys paid by him to the Sheriff for his fees upon the sale adjudged to be fraudulent, and, in making which, such attorney was adjudged to have been guilty of a breach of duty to the complainants, as their attorney and counsel. (Id., 745, 748.)

In Van Epps and Wife v. Van Epps, (9 Paige, 237-242,) the defendant was held to be a trustee for the complainants of property which he had attempted to buy for his own benefit, on the ground that he had a duty to perform in respect to such property inconsistent with the character of a purchaser thereof for his individual use and benefit. But, at the same time, the defendant was protected in respect to the amount of his bid; and it was adjudged to be equitable that he should hold it as security for that amount.

It has been long settled that an attorney or solicitor, who recovers a judgment for his client, is an equitable assignee of it to the extent of the sum due to him for the costs of recovering it; and that he has a lien on his client’s papers for services, even where there has been no suit or judgment against another party. That rule has neither been abrogated nor impaired by the Code. (Rooney v. Second Av. R. R. Co., 18 N. Y. R., 368.)

And it has been held that, where a solicitor was transacting business for his client, and had, at the same time, a judgment against him, bearing interest, and the client made general payments from time to time, the solicitor was justified in applying those payments to his account for costs accruing due, although the interest on the judgment against his client was accumulating at the same time, (D'Arcy v. Burke, 2 Irish Eq., 1;) the payments, when made, not being impressed with a direction or duty to apply them otherwise.

Any amount justly due to the defendant for his services in the matters enumerated in his answer, should have been allowed as an equitable defense, to that extent, to the plaintiff’s cause of action. An equitable as well as a legal defense may be interposed, and a counterclaim may as well consist of a right to equitable relief; as of a cause of action on which a recovery can be had in a Court of law. (Code, § 150.)

These views lead us to the conclusion, that the Referee fell into an error in holding, that the appellant had forfeited all right to be compensated for any of the professional services which he proved he had performed for the plaintiff, and that a new trial must be granted.

We also deem it proper to state, that a careful perusal of the evidence has failed to convince us, that during the fifteen months next subsequent to the Sheriff’s sale of the four houses and lots, there was any want of good faith in what the appellant did or omitted to do; and we see in it no evidence of any intent to defraud.

It is undeniable, that the plaintiff knew the appellant was the attorney of the Housatonic Bank, and that the sale was to be made at Ms instance as such attorney. The latter, as soon as the sale was made, wrote to the plaintiff that the sale had taken place, and that he had Md in the property for that Bank. The plaintiff admits the receipt of that letter, and makes it a part of Ms complaint.

By letter dated the 25th of February, 1854,- the appellant solicited a power of attorney from the Bank, authorizing him “ to bid up the property,” and promised to so manage, that the lands should not ultimately fall into their hands.

In answer to that application, the Bank sent Mm such a power of attorney, enclosed in a letter dated the 25th of said February, and on the 28th of February, a month prior to the sale, he wrote to the plaintiff thus, “I have full.power from the Housatonic Bank, to bid on the sales. Will attend them and look out for you.”

Hence, it is quite evident, that prior to the Sheriff’s sale, the plaintiff knew that the appellant would at such sale bid in the property, if he deemed that course best; and that if he did bid it in, it "would be nominally for the Bank, and that all the protection the plaintiff could have, would be found in redeeming from such sale, or taking the title that might be perfected under it.

The appellant’s letter of the 12th of March, 1855, to the plaintiff, indicates that his view of what was most for the interest of the plaintiff was, that the title should be perfected under that sale. He says: “ the Sheriff’s deed is not due until the last part of June, although the owner has to redeem in twelve months. I shall of course let you have it at the end of the fifteen months.”

We find nothing in the evidence leading us to doubt, that he then intended to do as he stated in that letter. He of course expected tobe paid for Ms services, and if not previously furnished with funds sufficient for the purpose, that the plaintiff would supply the requisite amount to pay the sums at which the lots had been bought at the Sheriff’s sale, including interest thereon.

And if, at the end of the fifteen months, he had presented an account of his services just in amount, including the moneys to be furnished in addition to those in his hands and necessary to be paid to effect a redemption, and had offered to convey the houses and lots to the plaintiff on being paid the amount due him according to such account, he would have offered all that in. any view could be demanded as equitable, and nothing would have existed to excite the slightest suspicion of bad faith, or illiberality.

The bulk of the moneys which the appellant received or collected for the plaintiff before the expiration of said fifteen months, were received between the 27th of January and the 5th of June, 1854, inclusive. The bulk of the appellant’s disbursements for the plaintiff were made between the 1st of February, and the 28th of June, inclusive, of the same year.

From the 7th of April to the 1st of May, 1854, the appellant had advanced about five hundred dollars, more than he had received or collected, besides being uncompensated for the services which the Referee has disallowed.

On the 28th of June, 1854, the receipts and collections amounted, over and above the payments he had made, to $1,399 52 On the 27th or 28th of September, 1854, he received

the further sum of............................ 206 88

Total,............ $1,606 40

He received no other moneys for or on account of the plaintiff until the 12th of September, 1855, some two and a half months after the expiration of the fifteen months next succeeding the Sheriff’s sale. On the 29th of September, 1855, he received notice from Messrs. Fancher and Eager, that they had been retained to commence this suit.

A just mode of stating the accounts between the parties would be, to ascertain what was justly and equitably due to the appellant for his services in June, 1854, and allow him to apply that in payment of a like amount of the $l,399TV¡r, or if it exceeded that sum, then allow him to be paid the deficiency out of the $206.88 received on the 27th or 28th of September, 1854.

The only thing unreasonable on the part of the defendant (unless the amount claimed for his services was unjust) was, his refusal to convey to the plaintiff, unless first paid his claims against James Currie.

It was unreasonable and inequitable in the plaintiff to insist on. having a deed for the three houses and lots, without paying or securing to be paid, whatever might be justly due to the appellant.

He may have thought the plaintiff’s charges were extortionate, and meant, if possible, to get the title to the houses and lots, and leave the appellant to such remedies for his compensation as he might be advised to pursue. And it is not improbable that the appellant believed that the plaintiff did not intend to make any compensation approximating to justice, if he could avoid it; that the property was at last going into the hands of James Currie, and therefore no great violence would be done to the principles of natural justice, if he used the power he then possessed to coerce payment from both.

Client and attorney, look at the services of the latter in a very different light. The former, generally sees only the results of the labor of the latter, and is ignorant of the care, vigilance and toil to which the results are due. The latter possibly, at times, overestimates the character of the skill that has been employed, the intrinsic difficulty of the questions he has investigated, the value of the responsibility he has taken, and the worth of the services he has rendered.

As a natural consequence the attorney sometimes thinks the client ungrateful and niggardly and that he intends to cheat him, when in truth he means to be just. And the client on the other hand thinks the attorney exorbitant in his charges, and extortionate, when the latter intends to be liberal, and really feels and believes that he is so.

I think there is much reason to believe that something of this feeling may have exercised some control over the views of the parties to this controversy, and that their conduct may be explained consistently with the absence of all intent on the part of either, to be mean or to defraud.

And on the evidence as it stands, we see nothing which should subject the defendant to a forfeiture of his right to a just compensation for any services he may have rendered. .

If the plaintiff has the right to have the defendant treated as his trustee of the property; the latter should be compensated for any services he may have rendered, within the intent and according to the expectation of the parties, in perfecting it.

The Referee, instead of decreeing a conveyance of the three houses and lots upon just terms, has given a judgment for dama-ges, on the ground that by reason of the foreclosure of a prior mortgage on the three houses and lots, and a sale of them under such foreclosure, the plaintiff cannot be vested with the title.

We find no evidence in the case of any such fact. The Referee in his statement of the facts found by him, states “ that it was conceded on the argument on both sides that the said three lots had been sold since the said redemption day,” and that it was not in the power of the appellant to convey any valuable interest therein to the plaintiff.

The appellant excepted to this finding. The Case, in its statement of what occurred at the trial, does not mention that any admission to that effect, or that any such concession was made.

When the plaintiff offered evidence to prove such fact, the Referee, on the objection of the defendant, excluded it.

As the statement to be inserted by a Referee on settling a case, is to be a statement of facts found by him on the evidence contained in the case; and as the appeal from the judgment maybe “upon the fact” as well as “upon the law”; the evidence which is to justify the finding of facts, whether consisting of admissions of the parties, or of the testimony of witnesses, should be embodied in the Case, otherwise it may happen, that as to some material fact found, there may be no evidence to support it. (Code, §§ 268, 272, 348.) It is not the province of the Court at General Term, nor has it the right to deduce facts from the evidence brought before it, with a view to found a'judgment thereon. (Brower v. Orser, 2 Bosw., 365.)

The observations we have made in respect to our view of -the force and effect of the evidence brought before us by the present appeal are made in reference to the question of the right of the appellant to be compensated and allowed in this suit for the just value of the services which he may have rendered; and not with a view to control the conclusions on any future reference or trial, as to the actual intent of the defendant to benefit or overreach the plaintiff.

And we may add, in conclusion, that if the Referee found the true value of the three houses and lots, and was right in charging the defendant with such value, he erred against the plaintiff in not crediting him with the balance of the moneys in the appel-. lant’s hands; as well as in his favor by denying to the appellant, compensation for his services.

It is to be presumed that he did not charge the appellant with the surplus in his hands, because he treated it as having been applied to redeem the three lots. That being so, and the appellant having sold them, he, of course, received that back from the purchaser, as well as the excess of their value over that sum and the prior incumbrances thereon. If chargeable with their value, on the principle that he has received it, he must refund the whole of such value, he not having parted with any money to pay the bids, or perfect the title.

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

Robertson, J.

The learned Chief Justice has so fully expressed my views as to any forfeiture by the defendant, Cowles, of any claim for services in reference to matters not immediately connected with the redemption of the premises as claimed by the plaintiff, that I need add nothing further. I think also we cannot inquire into the merits of the evidence in regard to those services, where all inquiry was precluded by the decision of the Referee. The case also is clearly one where, if the defendant, .Cowles, is chargeable with a sum of money, his claim is admissible as a counterclaim.

There is no pretense in the complaint of any design or scheme on the part of the defendant, Cowles, before he bid in the premises in question at a Sheriff’s sale, to get the title to them in his own name, lull the plaintiff into a false security by promises of redeeming them, induce the latter to believe that he would apply all the moneys in his hands, or which he might receive for the plaintiff, to such redemption, then allow the time for redemption to elapse and retain the title in his own name. Unless that be charged and proved, it seems to me, the obtaining of the title to the land in the defendant’s name, originally, so far as the plaintiff was concerned, was wholly immaterial to his rights in this action. Without such a premeditated scheme, the charges made against the defendant, Cowles, become isolated acts of malfeasance or breach of contract, for each of which, if they are the subject of an action, the plaintiff might recover, if he has sustained damages. Kor would this result be varied, if the facts alleged in the complaint and found by the Referee were sufficient to warrant the inference of such a scheme, for in such case, those facts would be mere evidence of the main fact, to wit, the scheme to be found as a question of fact, whose execution produced the injury to the plaintiff complained of, and which he was bound to allege in his complaint. (Page v. Boyd, 11 How., 417.)

As one of such isolated facts, therefore, the complaint alleges that the defendant, Cowles, undertook and promised to attend the sale of the premises in question by the Sheriff, on the execution in favor of the Housatonic Bank, and to represent the plaintiff thereat, and fully protect his interests; in consequence of which the plaintiff did not attend such sale, and Cowles bid in the land in his own name. It is difficult to imagine what else the defendant could have done, or how he could any further have protected the plaintiff’s interests, or in what respect he failed to perform his contract, or was wanting in professional duty to his client, unless he bought the property in for him, instead of the Housatonic Bank. But there is no allegation of any authority given to the defendant to make such contract of purchase, nor were any funds furnished by the plaintiff to complete it, nor did the defendant agree to furnish the same, and it certainly was no part of his professional duty to make such advance. Besides this, it appears by the complaint that the judgment creditors, on whose execution the sale was made, gave the defendant a power of attorney to bid for them and protect their interests; and that on the next day he notified the plaintiff that he had bought in the premises for the Bank, and that the plaintiff was the redeeming party; that he had used his power of attorney from the Bank to help the plaintiff, and thereby probably delayed the'payment to them of from three to four thousand dollars, for some time. It is not alleged or proved that such course of the defendant was dissented from by the plaintiff, or was prejudicial to him, on the contrary, in a letter dated the next day, he says that the intelligence was “long hoped for and most gratifying ” ; thus, in the fullest manner, approving of his conduct. The omission of the plaintiff to attend such sale, alleged to have been brought about by the defendant’s supposed promise, appears for the same reasons not to have been attended with any injury to his interests, at least none is pointed out: and he does not allege what he could or would have done if he had attended the sale. The Referee has found that the defendant, Cowles, as an attorney and counselor of the Superior Court of the city of Hew York, was employed by the plaintiff for securing and.collecting his claim against William and James Currie, and in furtherance of the same, to attend the sale of the premises in question on an execution issued by Cowles as attorney of the Housatonic Bank, and on such sale to protect the interest of the plaintiff, and to procure the title of said lots for the plaintiff; and further, that he undertook such business as attorney and counselor, and induced the plaintiff to believe that he would attend such sale for him, and do all that might be necessary to protect his interests in the matter, and carry out said understanding, and in consequence thereof the plaintiff did not attend the sale; and these are the only findings in reference to any original employment or undertaking of the defendant, Cowles, in reference to such sale, or as to any prejudice to the plaintiff arising from his non-attendance thereat. The Referee has, in such findings, found three facts not alleged in the complaint, to wit, that the defendant was an attorney and counselor of this court; that he was employed" by the plaintiff to secure and collect his claim against his brothers, and that he was to procure the title to the lots in the plaintiff. The only employment of the defendant alleged in the complaint is, to obtain a conveyance from a third person pf the premises in question, which, it is alleged, he accomplished ; and then avers that Cowles, being such attorney and counselor of the plaintiff in the premises, promised as before stated. It is true, that after the bid made by the defendant, the complaint alleges that he assured the plaintiff that he was perfectly secure in collecting his said judgment, and that the defendant would see that the lots should be redeemed and moneys in his hands applied for the purpose; but this is far different from a general retainer of the defendant to do every thing necessary to collect the plaintiff’s judgment; and finally, it is nowhere alleged in the complaint that the defendant undertook, or was retained or induced the plaintiff to believe that the defendant would procure the title to the lots in him, but only that, as before stated, assured him that he would see that the premises sold should be redeemed under the plaintiff’s judgment. Such Referee has also found further, that the act of the defendant, Cowles, in inducing the plaintiff to keep away from said sale, was fraudulent, and a breach of his duty as such attorney and counsel, that is, to collect the amount due on such judgment, which is the only professional capacity alleged in the report. From these considerations, it clearly appears that the acquisition of the Sheriff’s certificate by the defendant, on the sale upon execution, was no violation of any undertaking or duty of his, and that if so considered by the Referee, it was error, for which the judgment ought to be reversed.

Hor will it be found that these considerations are immaterial upon the main questions of the capacity in which Cowles acted after he acquired the title, the damages to which the plaintiff might be entitled against him, and the allowances and offsets to be made to him. If, before the purchase by him, he undertook, both at the sale and subsequently, to act as the plaintiff’s attorney and counsel, to secure the amount due on his judgment, or, as an individual, undertook to vest the title to the land in the plaintiff, it would be, manifestly, far different from acting in his professional capacity, or promising, after the sale, to redeem the lots. A retainer or promise, after the defendant became trustee of his other client, the Housatonic Bank, is far different from agreeing to favor the plaintiff to their prejudice before. The defendant, being such trustee, with the knowledge of the plaintiff, and bound to act for their interests in either facilitating or defeating a redemption, could not assume to act as counsel for the plaintiff in thwarting his clients’ interest; nor, however honestly he might intend to act, could he assume the double position of agent for antagonistic interests. Indeed, it appears by a letter of the defendant, produced by the plaintiff, dated in December, 1854, that the property was worth more than the bid; so that it was against the Bank’s interest to submit to a redemption. Ho right could arise to the plaintiff from such an illegal agreement, nor could he claim for damages for its violation.

Considering, then, the defendant to be trustee for the Housatonic Bank on the purchase by him at the Sheriff’s sale, (for I hold that no notice by. him to them was necessary,) without any breach of duty on his part to the plaintiff, it remains to be seen what were the subsequent relations of the parties. And here we find that various communications pass between them, until the time of redemption went by, all of which assume that the plaintiff is to redeem; and it may be that, considering the previous relations of the parties, although the plaintiff may have no right of action for damages against the defendant, from any agreement on the part of the latter to act as his counsel to the prejudice of a client for whom he already had undertaken to act, he may have been induced to believe by the latter that he could so act, and been substantially so advised by him as counsel, and may be entitled to regain from the latter anything which he lost by relying on such advice, as in the case of Ford v. Harrington, (16 N. Y. R., 285;) but, in such case, the plaintiff would have no superior right to that which he now derives from the agreement contained in the letter of the defendant of the 12th of March, 1855, to convey to the plaintiff the premises in question, in which he says: “ The Sheriff’s deed is not due until the last part of June, although the owner has to redeem in twelve months. I shall, of course, let you have it at the end of fifteen months;” and although the property is not described, the previous letters and communications of the parties determine it. This becomes, then, an action for the specific performance of a contract, and is to be governed by the same rules as any other similar action.

A difficulty presents itself from the fact that the complaint does not allege any sale or disposition of the premises, but demands, as relief, only that they should be conveyed to the plaintiff. If the damages given by the Referee were for the defendant’s failing to buy the property for the plaintiff at the Sheriff’s sale, after undertaking to do so, they would be proper, because the plaintiff would then have lost all claim to the property; but neither the complaint nor the Referee’s report proceeds on any such basis, but entirely on the principle that the defendant, having got into his possession property to which the plaintiff was entitled, and which he could convey to him, was bound to do so. There is no fraud alleged in the complaint, on the part of Cowles, except that of inducing the plaintiff to believe that he would do all that was necessary to secure the plaintiff, and that it would not be necessary for him to take any action to redeem the premises to the end that the title might be perfected in himself or the Bank; but no such fraud is found by the Referee. He only finds, among other acts, that the acts of the defendant, Cowles, in inducing the plaintiff not to attend to the redemption of the premises, were fraudulent. Perhaps, by a forced construction, “ not to attend to the redemption,” and “ to believe a redemption to be unnecessary,” may be made to mean the same thing; but, on a charge of fraud, the finding should be more exactly conformable to the issue. As, therefore, there is no material charge of fraud sustained, I do not think the plaintiff had a right to elect to recover damages instead of the land, particularly when the relief demanded by him is only the latter. It is true the Referee has found that the land was sold, but this was not upon any issue, and no evidence of it was admissible upon an issue not found. For this reason, upon the present state of the pleadings, I think the finding of the Referee was erroneous.

I do not deem it necessary, in my view of this case, to examine the accounts between the parties in order to determine whether the defendant had sufficient money of the plaintiff’s in his hands to redeem; because he was bound to convey, on receiving the bid and interest and expenses, at any time, as if the property had been redeemed. Such accounts may be important on-a question of damages, hereafter.

I concur, therefore, in the judgment of reversal, and a new trial, with costs to abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    The Merchants’ Bank in the City of New York, Plaintiffs and Respondents, v. Duncan McColl and Samuel S. J. Frith, Defendants and Appellants.
    1. Where a stock subscription note, payable to the order of a Mutual Insurance Company, is indorsed by its President and negotiated, and before its maturity is taken by a third person in good faith, and for full value in the usual course of business, and it appears that this is a common mode of negotiating its notes, such holder acquires a good title.
    2. It is no defense to an action by such a holder against the maker, that the transfer by the Company was of this and other notes amounting in all to over $1,000, as collateral security, and without a previous resolution of the Board of Trustees, nor,
    3. That a sufficient amount of the other collaterals to pay the loan, has been collected since the note in question was passed to such Iona fide holder, nor,
    4. That by the by-laws of said Company, the President alone had no authority to indorse the notes of the Company, nor,
    5. That at the time of the transfer the Company was insolvent, and transferred the note with intent to prefer a third person, a creditor of the Company, over its other creditors, nor,
    6. That the subscription upon which the note was given was never made up in good faith to the amount specified in said subscription, nor,
    7. That a Receiver of the property of the Company was duly appointed, some forty-five days after the maturity of the note.
    (Before Hoffman, Woodruff, and Moncrief, J. J.)
    Heard, January 9th;
    decided, April 28th, 1860.
    Appeal by the defendants from a judgment on a verdict. Trial had before Bosworth, Oh. J., and a jury, November 15th, 1859.
    The suit is on a note in these words, viz.:
    145
    Subscription Note.
    $1,000. New York, Aug. 25, 1856.
    Twelve months after date, we promise to pay the Globe Mutual Insurance Company, or order, for value received, one thousand dollars, payable at the Merchants’ Bank.
    Due Aug. 25-28, 1857.
    McCOLL & FRITH.
    No. 537.
    Globe Mutual Insurance Company.,
    Indorsed,
    L. Gregory, Pres’t.
    Jas. W. Elwell & Co.
    The plaintiffs proved that they were an Incorporated Banking Company; that the defendants, being partners, made the note in question; the genuineness of the indorsement, “L. Gregory, President,” and “Jas. W. Elwell & Co.”—that Gregory was President of said Insurance Company during its existence, and that “ it had different ways of indorsing; sometimes in this way/’ and sometimes, “ The Globe Insurance Company,” by the President.
    That James Elwell “ received this note from Hotchkiss ” early in September, 1856, with other notes amounting in all to over $1,000, as security for a loan then made, that said Elwell “ had other dealings with the Globe Insurance Company in relation to loans,” and at the time he made this loan “ the Company was indebted to him for other loans. There was no other evidence tending to show who Hotchkiss was, or whether the loan he procured from Elwell was obtained for, and, if so, was known to have been obtained for said Insurance Company.
    The plaintiffs also proved that the Marine Bank discounted the note for James W. Elwell & Company on the 22d of July, 1857, and passed its legal proceeds to their credit, and that the same were drawn out by said firm, and that James W. Elwell was then a Director of said Bank. That on the 28th of August, 1857, the Marine Bank transferred it to the plaintiffs and received $1,000 therefor; and that the interest was $155.15, and offered the note in evidence. Defendants objected “that the indorsement is not sufficiently proved.” The objection was overruled; they excepted; the note was read in evidence, and the plaintiffs rested.
    The defendants moved for a dismissal of the complaint, on the ground—
    That no sufficient proof of the indorsement of the note by the Globe Mutual Insurance Company, had been given.
    Which motion was denied, and the defendants’ counsel duly excepted.
    The defendants then offered to prove:

      First. That the note in suit was transferred by the Globe Insurance Company to James W. Elwell & Company, with other notes, amounting in all .to about $5,000, without the authority of a previous resolution of the Board of Trustees of that Company, and that such transfer was made as collateral security for a loan of $4,000.

      Second. That a sufficient amount of the other notes transferred at that time has been, since July 22, 1857, paid to satisfy that loan.

      Third. That at the time of the transfer, the Globe Insurance Company was insolvent and unable to pay its debts, and that the transfer was made with the intent to give a preference out of the money received on such transfer to one Alanson Marsh in the payment of his debt, over the other creditors of the Globe Insurance Company.

      Fourth. That the subscription to the Globe Insurance Company, upon which this note was given, was never made up in good faith to the amount specified in such subscription.

      Fifth. That by the by-laws of the Globe Insurance Company, the President alone had no authority to indorse the notes of the Company.

      Sixth. That a Receiver of the property, &c., of the Globe Insurance Company, was duly appointed on the 14th day of October, 1856.

      Seventh. That on the 25th August, 1857, the defendants gave to the paying teller of the plaintiffs notice not to pay the note in suit.
    This offer was overruled; and to the decision, the defendants duly excepted.
    , The jury thereupon, under the direction of the Court, found a verdict for the plaintiffs for $1,155.15, the amount of the note with interest.
    Ho questions arose on the pleadings. From the judgment entered on the verdict this appeal is taken.

      S. Sanxay, for appellants.
    Hot presenting any printed points, argued the several exceptions, insisting that they were, respectively, well taken.

      B. W. Bonney, for respondents.
    I. The indorsement “L. Gregory, President,” is, under the proofs, sufficient to pass title to the note, and the objection to the sufficiency of such indorsement was properly overruled. (Howland v. Myer, 3 Comst., 290; Commercial Bank of Buffalo v. Kortright, 22 Wend., 348; Bank of Vergennes v. Warren, 7 Hill, 91; Brouwer v. Harbeck, 1 Duer, 114; Caryl v. McElrath, 3 Sand., 176; Aspinwall v. Meyer, 2 id., 180.)

      II. The alleged facts, which the defendants offered to prove, were not sufficient to defeat the action, and the offer was properly rejected, and the evidence ruled out by the Court.
    1. The note in question, before its maturity, was regularly indorsed and delivered, for valuable consideration, to Elwell & Company, and also by them indorsed and delivered, for valuable consideration, to the Marine Bank. Neither Elwell & Company nor the Marine Bank had any notice of any irregularity in, or want of authority for, the indorsement; and their title could not be impeached for want of a resolution of the Board of Directors authorizing the transfer. (1 R. S., p. 591, § 8; Howland v. Myer, 3 Comst., 290; Curtis v. Leavitt, 15 N. Y. R., 1; see pp. 11, 191, 192; Brouwer v. Harbeck, 1 Duer, 114; Caryl v. McElrath, 3 Sand., 176; Aspinwall v. Meyer, 2 id., 180.)
    2. That since 22d July, 1857, (when this note was discounted by the Marine Bank,) a sufficient amount of the other notes transferred to Elwell & Company, has been paid to satisfy the loan made on the security of such transfer, can in nowise affect the right to recover on the note in question.
    3. There was no offer to prove that the transfer of the note was made by the Globe Company “ when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the Company,” within the intent and meaning of the statute, declaring such an assignment invalid. (1 R. S., p. 591, § 9; Brouwer v. Harbeck, 1 Duer, 114.)
    But if said transfer was within the purview and prohibition of the statute, the plaintiffs would, nevertheless, be authorized to collect the amount of this note from defendants, subject (perhaps) to liability to account therefor to the creditors or stockholders of the Company, or their trustees. (Statute, § 9, as above.)
    4. That the subscription to the Globe Company, upon which this note was given, was never made up to the amount specified in such subscription, is no defense to the note in the hands of a bona fide holder for valuable consideration, without notice. There is no allegation or pretense, or offer to prove, that either Elwell & Company or the Marine Bank had any knowledge or notice in relation to such alleged subscription.

      5. That by the by-laws of the Company, the President alone had no authority to indorse the notes of the Company, is no defense to the note in the hands of a bona fide holder for valuable consideration, without notice. <
    6. The appointment of a Receiver of the Company, on 14th October, 1856, could not affect the title of a bona fide holder , who received the note early in September, 1856, or of any person deriving title through such holder.
    7. The plaintiffs, on receiving the note from the Marine Bank on 28th August, 1857, and then paying to that Bank the full amount thereof, succeeded to all the rights of the Marine Bank in such note, and notice to the plaintiffs on 25th August, 1857, not to pay the note, did in nowise impair such rights. (Story on Promissory Notes, § 191; Jacks v. Darrin, 3 E. D. Smith, 557; Watson v. Flanagan, 14 Texas R., 354; Boyd v. McCann, 10 Maryland R., 118; Howell v. Crane, 12 Louisiana An. R., 126; Haskell v. Whitmore, 19 Maine R., 102.) Neither of the exceptions at the trial was well taken; and the judgment should be affirmed, with costs.

       See 5Bosworth, 762; “Transfers * * without Resolution," Holbrook v. Basset, and other cases.

   By the Court—Hoffman, J.

The first exception, to the ruling that the indorsement was not sufficiently proven, is not well taken. The proof of the habit of the Company to indorse in the manner followed in this instance, was sufficient. (Caryl v. McElrath, 3 Sandf. S. C. R., 176; Ogden v. Andre, 4 Bosw., 583; Scott v. Johnson, 5 id., 213.)

The admissibility of the first four offers of the defendants’ counsel to prove the matters stated in them respectively, depends upon the fact whether the plaintiffs are in the position of holders of the note for value without notice. They got it from the Marine Bank, who, it is insisted, took it for valuable consideration without notice before maturity.

The note fell due August 25th-28th, 1857. In September, 1856, one Hotchkiss had possession of it, and delivered it with other notes to Elwell & Company, upon a loan, for which it was given as security. It seems as if it was again deposited-as such security with Elwell & Company for another loan in July, 1857. However this may be, Elwell & Company appear to have got it on a valuable consideration before maturity.

Elwell & Company parted with it to the Marine Bank on a discount of it, at seven per cent, on the 22d of July, 1857. The money was passed to their credit, and drawn out. On the 28th of August, it was certified' by the Merchants’ Bank, and the Marine Bank received the amount from the Merchants’ Bank the present plaintiffs.

The title of the Marine Bank seems indisputable; and this title passed to the plaintiffs by the payment on the day of maturity. The plaintiffs have a right to avail themselves of the title of the Marine Bank. (Story on Prom. Notes, § 191; Haskell v. Whitmore, 19 Maine R., 102.)

The notice to the teller of the plaintiffs not to pay the note, could only, if of any avail, let in the defendants to any defenses which they had against the Marine Bank. If they could have sustained an action, the present plaintiffs were right in paying, and may sustain it also.

The appointment of a Receiver of the Company, can have no effect upon the rights of the parties.

And as to the by-laws, not authorizing the President of the Company to indorse its notes, it is sufficient to say that a bona fide holder is not chargeable with notice of them, as of a general statute or the charter; and no actual notice of such by-laws to the Marine Bank, was offered to be proved.

The judgment should be affirmed, with costs.

Ordered accordingly.


author: Referee’s Opinion. By the Court—Hoffman, J.

text:
    Thomas Rigney, Plaintiff and Respondent, v. Martha E. Coles, Defendant and Appellant.
    1. Where a contract for the sale and purchase of parcels of real estate contained the words, “ titles to be satisfactory ”: Held, that these words did not make the contract a conditional one in such sense as to make the purchaser the sole judge of the title; but they merely expressed what is implied in every contract of this kind, that the title to be given shall be a good marketable one of which the Court must judge, if the parties differ about it.
    2. Where the real estate of a deceased person is sold by order of a Surrogate to pay his debts, the facts essential to give the Surrogate jurisdiction of the subject matter and of the persons of the necessary parties to the proceedings, must be shown affirmatively to give validity to the proceedings.
    3. When such jurisdiction has been acquired, a subsequent irregularity or error of judgment will not render the whole proceeding a nullity, nor can it for such a cause be questioned in a collateral action.
    4. The caption of the Surrogate’s order to show cause why leave should not be given to the administrator to sell, states that it was made “ At a Surrogate’s Court held * * at the Surrogate’s office in the city of Hew York on the 11th of July, 1843,” before the Surrogate, and the body of it requires, “that all persons interested in the estate, &c., appear in this Court on the 30th of August next, at 10 o’clock in the forenoon, to show cause,” &c.: Held, that it sufficiently designated the time and place where the parties were to appear.
    5. Meld, also, that a publication of the order in a newspaper of the County of the Surrogate once in each week for four successive weeks, when the first insertion was at least five weeks before the day for showing cause, satisfied the statute in that behalf, though the newspaper was published daily.
    6. Meld, also that the omission to serve the order on one Moir, who occupied a parcel of the property in question under a lease for one year from the 1st of May, 1843, did not affect the validity of the purchaser’s title except as to said Moir, and that after his lease had expired, that omission became wholly immaterial.
    7. Although the order to show cause required the parties to appear on the 30th of August, and the order to sell, was made September 2d, and does not recite that the proceedings were formally adjourned during the intermediate time, the order to sell is not, for that cause, presumptively, invalid.
    8. And even though it be shown that no such adjournments were entered in the Surrogate’s “Book of Minutes,” the proceedings will not be impaired if it be proved that they were in fact continued, by adjournments.
    (Before Hoffman and Woodruff, J. J.)
    Heard, April 9th;
    decided, April 28th, 1860.
    Appeal by the defendant from a judgment entered on the report of the Hon. William T. MeCoun, as Referee.
    The action was brought by Rigney as the vendor of real estate situate at the corner of Fifth avenue and Thirty-Second street, in the city of New York, to enforce the specific performance of a contract for the sale of it to the defendant.
    One Isaac Lawrence died seised of the property in question, and several of the objections raised to the title relate to proceedings before the Surrogate of New York, under which said property was sold to pay the debts of said I. Lawrence, deceased.
    The facts of the case appear in the report and findings of the Referee; and the various exceptions taken and discussed on the appeal are stated and considered in an opinion of the Referee filed with his report.
    The Referee reported, as facts, that the contract between the plaintiff and defendant, which is dated May 3, 1859, was, at the time of suit brought, and still is, a valid and subsisting contract; that the plaintiff was seised of an estate in fee simple of the property in question; and that, before suit brought, he offered to convey, by a deed duly executed and tendered, “a good and ■' sufficient and satisfactory title to her.” (The only words in the contract, about the correct meaning of which, any questions arose, 1 are the words, “ titles to be satisfactory.”)
    On settling the case, the Referee, for the purpose of a review of his decision by the Court, found and certified, independently of his said report, the following, as his finding of facts, viz.:
    “ That Isaac Lawrence, a resident of the city of New York, departed this life, intestate, on or about the 12th day of July, 1841. That he left surviving him a widow and seven children, his heirs-at-law, viz.: William Beach Lawrence, Cornelia L. Hill-house, widow of James Hillhouse, Harriet L., wife of John A. Poole, Josephine, wife of Benjamin McVickar, Julia, wife of Thomas L. Wells, Maria, wife of Rev. William I. Kip, and Hannah, wife of Henry Whitney, all of whom were of full age: the said William Beach Lawrence and Mrs. McVickar residing in the city of New York, Mrs. Kip residing at Albany, Mrs. Poole residing at New Brunswick, in the State of New Jersey, and Mrs. Hillhouse and Mrs. Whitney residing at New Haven, in the State of Connecticut.
    “That, before and at the time of the death of the said Isaac Lawrence, he was seised in fee simple and possessed of numerous parcels of real estate, situated in the city of New York, of which the lots in question in this cause were part and parcel.
    “ That John L. Lawrence became and was administrator of the personal estate of said Isaac Lawrence, deceased, by letters of administration, duly granted to him by the Surrogate of the city and county of New York, on the 19th day of November, 1841.
    “ That the personal estate of the decedent proved insufficient to pay and satisfy his debts. That the said administrator, having discovered the fact of such insufficiency, presented a petition to the said Surrogate on the 11th day of July, 1843, containing statements' of all'such facts, and accounts relating to the said estate, and his administration thereof, as were required by law to be shown, to authorize a resort to the real estate of the intestate, for the payment of debts, and praying that authority might be granted to him by the said Surrogate, pursuant to the Revised Statutes of the State, to mortgage, lease or sell so much of the real estate of the said deceased as should be necessary to pay his debts; which petition was duly verified by the oath of said administrator, and filed with the said Surrogate. That thereupon the said Surrogate made an order, on the same 11th day of July, 1843, stating, that on reading and filing the said petition it appeared the personal estate was insufficient to pay the* debts, and ordering all persons interested in the estate of said deceased to appear in his Court on the 30th day of August, then next, at 10 o’clock in the forenoon, to show cause why authority should not be given to said administrator to mortgage, lease or sell so much of the real estate of said deceased as should be necessary to pay his debts — the said order having the name of the Surrogate subscribed thereto, and a caption preceding it in these words, viz.:
    “ ‘At a Surrogate’s Court, held in and for the county of New York, at the Surrogate’s office in the city of New York, on the 11th day of July, in the year one thousand eight hundred and forty-three :
    “ ‘Present—David B. Oddest, Surrogate.

    “ That a copy of such order to show cause was, in due time, personally served on each of the heirs-at-law of the said decedent as resided in the city of New York, that is to say, in the county of the said Surrogate, viz., on William Beach Lawrence, and on both Thomas L. Wells and Mrs. Julia B. Wells, his wife, and on both Benjamin McYickar and Mrs. Josephine McYickar, his wife, by delivering to each and every of them a copy.
    “ That for the purpose of notice to Mrs. Kip, residing out of the county of said Surrogate, and to Mrs. Poole and Mrs. Hill-house, and Mrs. Whitney, residing out of the State of Hew York, a copy of said order was published in a daily newspaper, printed and published in the city of Hew York, for four weeks in succession, but only once in each week, commencing on the 24th day of July, 1843, the first insertion or publication being upwards of five weeks anterior to the day for showing cause.
    “ And that a copy of said order was also regularly published in the Albany Argus, a newspaper published by the printer to the State, and was inserted therein once in each week for six weeks successively, commencing on the 14th day of July, 1843.
    “That the premises in question in this cause were, at the time of the commencement of these proceedings before the Surrogate, part of a large tract of land then in the occupation of one William E. Moir, as tenant thereof, under a lease for one year, from the 1st day of May, 1843; and the fact of such tenancy was so stated in the administrator’s petition presented to the Surrogate.
    “ That a copy of the Surrogate’s order to show cause was not served on said Moir. That, about the time for the service of said order on him, he left the premises, and was succeeded in his occupation thereof, as such tenant, by one Collins Shepard, whom the messenger entrusted with the service of the order on the tenants found to be in possession, and on whom he served it by delivering a copy to his (Shepard’s) wife, at his residence on the premises.
    “ That, on the 30th day of August, (the day for showing cause,) the Surrogate did not proceed to the hearing of the case, nor is there, in his book of minutes, as written up, any entry or other record as evidence of an appearance of parties on that day, or of an adjournment over of the proceedings to another day. But the proctor for the administrator and William B. Lawrence, one of the heirs, in person, did in fact appear before the Surrogate, at his office, on that day and at the hour appointed for hearing, when the Surrogate adjourned the matter over to the 2d day of September, at 10 o’clock, A. M., and an entry of such adjournment was made in the Surrogate’s ‘ diary,’ a book kept on his table in which to note such occurrences.
    “ That, on the 2d day of September, pursuant to such adjournment, the Surrogate proceeded to hear the case, and did then and there make the order authorizing the administrator to sell a large quantity of the real estate of the decedent, of which the premises in controversy were part and parcel.
    “ That such sales were accordingly made to divers purchasers, and were reported to the said Surrogate, who, afterwards, by his further order of the 4th January, 1844, confirmed the sales, and directed conveyances to be executed, which were accordingly executed, to the several purchasers.
    “ And, upon the aforesaid findings of fact, the Referee found the following conclusions of law arising therefrom, viz. :
    “ 1st. That the petition of the administrator presented to the Surrogate on the 11th day of July, 1843, duly verified by his oath, with its accompanying schedules or accounts, was sufficient to confer, and did confer, jurisdiction upon the Surrogate, of the subject-matter of the sale of the real estate therein described, for the purpose therein mentioned.
    “2d. That the personal service of the order to show cause made by the Surrogate, on such of the parties interested in the estate as resided within the county of the said Surrogate, was sufficient to give, and did give, the Surrogate jurisdiction of the persons of said parties, so as to bind them by his subsequent orders or adjudications in relation to the subject-matter of said petition.
    “ 3d. That the publication of the order in the newspapers, and in the manner in which the same was published, gave to the Surrogate jurisdiction of the persons of such of the parties in interest who were non-residents of the county of said Surrogate, and non-residents of the State of New York, they being persons of full age; so that they likewise became bound by the subsequent orders or adjudications of the Surrogate upon the subject-matter of said petition.
    “ 4th. That the order to show cause contained upon its face a sufficient designation of the place (as well as of the time) where the parties were to appear to show cause, &c.
    “5th. That the matter of adjournment or non-adjournment, from the 30th August to 2d September, is a mere matter of practice, or regularity, in the proceedings of the Court, and does not affect the jurisdiction which the Court had once acquired, and cannot be taken advantage of, even if irregular, in any collateral action or proceeding.

      “ 6th. Omitting to serve William F. Moir with the order to show cause, or any defect in the service, of it on Shepard, could only be taken advantage of by those parties themselves in respect to the tenancy for one year which they had in the property; and as their interest has long since expired, the title of subsequent purchasers can never be disturbed by either of them.”
    The defendant excepted to each of the findings, separately.
   Referee’s Opinion.

“The first consideration in this case is, what effect the words, 1 Titles to be satisfactory,’ found at the close of the written contract, shall have in determining the rights of the parties under it.

“It is claimed for the purchaser, Mrs. Coles, that these words give her the right to abandon the purchase, if, under the advice of counsel, given in good faith, she honestly believed there was some defect in the title of the vendor; and in determining to abandon it, she was not actuated by a capricious desire to get rid of the contract. To place this construction upon the words in question, is to render the contract a conditional one, and to constitute the purchaser the sole judge of the title. Contracts of sale and purchase may be framed with that view, and if specially drawn, so as to convey that meaning and preclude any other interpretation, courts would be bound to give them the effect contended for; but it seems to me that the words here used fall far short of reaching that point. Here are no words of condition, declaring the contract void if counsel’s opinion should be adverse to the title, or making that the test of its being satisfactory to the purchaser. The words only express what is implied in every agreement of this kind, that the title to the purchaser shall be a good marketable one, of which the courts must judge on objections to be stated, if the parties should happen to differ about it.

“ In Lord v. Stephens, (1 Young & Col. Ex. R., 222,) the contract contained this clause: 1 In case the title shall not be satisfactory, to Stephens, (the purchaser,) his heirs or assigns, or his or their counsel, these presents shall be void to all intents and purposes and yet it was held by Lord Lyetohurst, (then Chief Baron of the Exchequer,) that these words did not authorize the party to put an end to the contract, except for cause to be shown by objections to the title, of the sufficiency of which the Court must judge, and not the party.

“ Finding then nothing in the form of the contract to give the defendant the right to rescind if dissatisfied, we must look into the objections that have been taken in order to see whether there is anything that is really calculated to impair the title, or to render it doubtful in the purchaser.

“The objections are all confined to supposed defects in the proceedings taken by an administrator before a late Surrogate of New York, for the sale of the real estate of Isaac Lawrence, deceased, for the payment of debts. This was in 1843, and the sales under the Surrogate’s order were made early in the year 1844.

“ In reviewing these proceedings, the two principal considerations are:

“ 1st. Did the Surrogate acquire jurisdiction of the subject matter of the sale ? and,

“2dly. Did he acquire jurisdiction of the persons of those (viz., the heirs-at-law of the intestate,) whose rights of property in the estate were to be divested by the sales ?

“ The presentation of the administrator’s petition to the Surrogate, containing a statement of the facts, which the statute particularly requires to be set forth in such petition, duly verified by the oath of the administrator, and praying for an order authorizing him to mortgage, lease or sell the real estate for the purpose of paying the debts of the intestate, is all that is necessary, in the first instance, to give the Surrogate jurisdiction of the subject-matter. He then proceeds to make an order for all who are interested in the estate to appear before him and show cause, if any they have, why a sale, &c., should not be made. The publication of such order, and the service of it personally on such of the parties as reside in the county, are the means provided by law for the Surrogate to obtain jurisdiction of their persons, so that the subsequent orders he may make will be binding upon them.

“These jurisdictional facts, both as to the subject matter and the persons, must affirmatively appear to exist in order to give validity to the proceedings. In respect to courts of limited jurisdiction, like the Surrogate’s, such facts are not to be presumed. They must be proved by record evidence or by the next best evidence to it, when the record is lost or has been destroyed. When the Surrogate has once obtained jurisdiction of the case and of the parties, if any slip or irregularity in the subsequent proceedings occur, or any mistake or error of judgment happens, the whole proceeding is not thereby vitiated so as to become a nullity. It is only that which is irregular in practice or erroneous in judgment that can be taken advantage of at all; and only then in a direct proceeding for the purpose, either by motion before the Surrogate or by appeal from his decision. It cannot be done by setting up such irregularity or error of judgment in avoidance of his acts or decrees in any collateral action. I need only refer to the cases of Jackson v. Robinson, (4 Wend., 436,) Jackson v. Irwin, (10 id., 441,) and Bloom v. Burdick, (1 Hill, 130,) for the law upon this subject. (See, also, 1 Seld., 434.) These cases and a number of others in our reports have presented questions upon titles derived from administrators’ sales under Surrogates’ orders, and they clearly show the distinction that universally prevails between judicial proceedings void for want of jurisdiction and voidable for irregularity and error. The first are nullities anywhere and everywhere. The others stand good everywhere until set aside or reversed, but cannot be impeached collaterally. Now as respects the case in hand:. No fault has been or can be found with the administrator’s petition to the Surrogate, either for want of form or want of substance, or as not giving him jurisdiction of the subject-matter, viz.: the propriety of ordering a sale of the real estate for the payment of debts. It contained upon its face all that was necessary to be stated to warrant the making of the order calling on the parties in interest to. appear and show cause. Such order was made. The personal service of that order upon some of the parties, and the due publication of it, by way of summons or notice to others of the parties, is the process by which the Surrogate was to acquire jurisdiction of them. They were all adults. Minors form an exception, since they cannot be subjected to the action of the Court without first assigning them a guardian.

“ The proper service and publication of the order are important jurisdictional facts, which it was necessary to show took place. One question, and only one, has been made, with respect to the sufficiency of the publication. This relates to the four weeks’ publication of the order in a newspaper of the county of the Surrogate. It was published in such a paper; (a daily paper;) but the order appeared in it only once a week, in four successive weeks, and the first insertion was at least five weeks before the day for showing cause. Is this a compliance with the statute, which simply declares it “ shall be published for four weeks in a newspaper printed in the county ?”

“ In cases where it becomes necessary to publish an order in the State paper, the statute is more explicit; for there “once in each week,” for four weeks, or six weeks, as the case may be, is its language. Was a different requirement intended, in the first case, by omitting to say “once in each week,” and thus leave it to be inferred that a daily or semi-weekly insertion was meant ? This seems to me improbable, and more especially so from the fact, which must have been well known when the law was revised. (2 R. S., 101,) that in many of the counties of the State, a daily or semi-weekly newspaper was not issued, and such is the case even at this day.

“ In Sheldon v. Wright, (7 Barb., 39,) the Supreme Court of the Seventh District held that the requirement of the statute (virtually the same as the Bevised,) was satisfied by dour successive weekly publications, provided the first insertion was full four weeks before the day for showing cause; and this was held good, on appeal, in the same case. (1 Seld., 497.) I think this case is decisive of the present question.

“ Then, besides the objection to the manner of publication, another has been made, as appearing upon the face of the-order itself, and that is, that the order does not specify the place (as well as the time) for the appearance of the parties. The statute does, indeed, require that the time and the place shall be specified in the order; and I cannot but think that the order in question does substantially contain both. The caption of- the order which was served and published, as forming a part of it, reads in this wise:

“‘At a Surrogate’s Court, held in and for the county of Hew York, at the Surrogate’s office in the city of Hew York, on the 11th July, 1843, present, D. B. 0., Surrogateand the ordering part directs all persons interested, &c., to appear in this Court on the 30th day of August, at ten o’clock in the forenoon, &c. The Court, then, is the place where the parties are to appear, and the caption shows it to be the Surrogate’s Court, held at the Surrogate’s office, in the city of New York. This, for all essential purposes of the proceeding, is a sufficient designation of the place, which nobody could well mistake or fail to comprehend.

“The next objection taken to the proceedings is, that the order was not served personally on every person in the occupation of the premises, as required by the statute.

“ There were numerous tenants, generally under a hiring for a year, or other short terms, of various parcels of the property described in the petition, and the proofs laid before the Surrogate gave the names of forty tenants or occupants who were served personally with the order. The person who performed this service states, tin his affidavit, that he visited the premises described in the petition, and from inquiries made thereon and in the immediate vicinity, he verily believed that the persons whom he had served with the order were the only occupants of said premises.

“ The petition had stated, that one parcel of propety (of which the premises in question in this cause are part) was in the occupation of one Moir, under a lease for one year, from the 1st May, 1843. There was no proof of service of the order on Moir, and hence the objection to the proceedings as being irregular and imperfect. Admitting that the Surrogate did not acquire jurisdiction over Moir, by reason of this omission, and that the order of sale did not affect him or his rights, how can that prejudice the title of the purchaser or owner of the property at this day ? Fifteen years have elapsed since whatever right he had in the property, as a mere tenant or occupant for a year, ceased, and he can have no claim now. It is argued, however, in support of the objection, that the law requiring service on the tenants in possession, intended such service as an additional means of notice to the heirs through the tenants. This is to make notice to the tenants a part of the process to bring in the heirs; but no such importance, I think, can be attached to it. Notice to the tenants is only intended to give them an opportunity to attend to their own rights, and has no necessary connection with or reference to those of the heirs.

“ There is also good reason to believe, from the testimony of witnesses examined before me, that Moir had left the premises of which he was tenant, and was succeeded by one Collin Shepard, as the occupant, when the messenger went to serve the order. His affidavit states, that on the 14th of August, 1843, the order was served personally on C. Shepard, who was a tenant in the occupation of a part of the real estate at that time.

“As I view the matter, however, all this is immaterial, for whatever rights Moir might have had as tenant, long since expired.

“ No question is made in regard to the sufficiency of the service of the order (either personally or by publication) on the widow and heirs of the intestate. There was an intimation at one time of a defect in regard to Mrs. Wells, one of the heirs, but this, I understand, has been remedied by a release recently executed by her and her husband. It has been since decided that the widow, having previously had her dower assigned to her, was not a necessary party to the proceeding. (Lawrence v. Brown, 1 Seld., 394, decided in’1851.)

“ The next objection I have to consider is one on which considerable' reliance is placed.

“The day for showing cause, by the order, was the 30th August. The Surrogate did not proceed to a hearing or an adjudication until the 2d of September, when he made the order for the sale. The latter order does not show upon its face that any of the parties appeared before him on the previous day, or that the matter stood over by a formal adjournment. It contains only such recitals as would have been proper had the adjudication taken place on the 30th of August, and the order been then made, and hence it is inferred, that a fatal hiatus occurred in.the proceedings, rendering the order invalid except as to one of the heirs, and one only, who appeared, as did also the administrator, on the 2d of September, when the order was made. For the purpose of strengthening this inference, witnesses have been examined to prove from their examination of the books of minutes, containing entries of these proceedings in the Surrogate’s office, that no entry of an adjournment of the hearing of this case, from the 30th of August to the 2d of September, appears in such minutes. But it does appear from a “Diary” kept by the Surrogate, on his office-table at that time, and from which the minutes were afterwards written up by a clerk, that such an adjournment was, in fact, entered in the Diary, though omitted by oversight or mistake of the clerk to be transcribed in the ‘ Book of Minutes.’ Further evidence of the fact of such adjournment is furnished by the proctor, who conducted these proceedings on behalf of the administrator, and the cause for the adjournment is also stated. It is competent to supply such apparent defects by parol or secondary evidence, where the record evidence is missing. (Jackson v. Crawfords, 12 Wend., 533.)

“ But if there had been no formal adjournment of the matter from the 30th August to the 2d of September, I am at a loss to understand how this could affect the whole proceeding. Surrogates’ Courts have no stated terms for the transaction of business. They are required to be constantly open, and the business brought before them, if not completed on one day, may be continued as a matter of course, de die in diem, until finally disposed of. Adjournments must be announced, and should be noted, so that parties may know when again to appear; but there can be no necessity for formal entries of adjournment and continuance from day to day, or time to time, in order to preserve their jurisdiction over the parties or matters in hand. It is only for the regular transaction of business that adjournments should be noted and made known; and if parties are misled or surprised by steps taken in their absence, for the want of sufficient knowledge of an adjournment, they can apply to the Surrogate to be let in to be heard notwithstanding; it being mere matter of practice in Court, which is always under the control of the Judge.

“ In this case the order of sale was made. All the requirements, preliminary to the making of such order, appeared to have been complied with. The property was then advertised and sold.

“ The sales were reported to the Surrogate, and then came the hearing on the motion to confirm. This hearing was adjourned several times. Parties in interest were heard, and finally the order was made confirming the sales, and directing the conveyances to be made to the purchasers. In all this there was no complaint or objection to the regularity of the proceedings or to their validity. And if there had been, it was for the Surrogate to remedy the difficulties, or for an appellate court to correct the errors, if any had occurred. Such things cannot be inquired into in any collateral action or proceeding.

“ One other matter, in the shape of an objection, was presented to my notice, as if to raise a question in regard to the intestacy of Isaac Lawrence, the deceased owner of the property.

“ Prior to the grant of administration on his estate, a paper, purporting to be his will, was offered for probate, and proofs were taken of its due execution. It then appeared, that subsequently he executed another will which revoked the first; and then, again, he canceled the second —and the Surrogate held that the cancellation of the second will did not restore the first, and that he died intestate. This decision was acquiesced in, and the grant of letters of administration was never questioned. It is very certain that it cannot be made a question now, and indeed it has not been pressed.

“ I believe this disposes of all the points which have been presented for my consideration. I have not found it necessary to invoke the aid of the act of 1850 to this case. The titles acquired by purchasers, at this administrator’s sale, in 1844, are, in my judgment, valid without such extraneous support. The heirs of the then deceased owner have never sought to draw them in question. At least, there is no evidence before me that any one of them has ever done so or threatened to do so.

“ My conclusion is, that the plaintiff in this action is capable of making a valid and satisfactory title to the defendant, by the delivery of the deed, which was tendered to her, in pursuance of the contract between them; and that she must be adjudged specifically to perform her part of the contract by accepting the deed, and paying that portion of the contract price which she agreed to pay in cash, over and above the $25,000 (dollars) of mortgage debt remaining upon the property, and assumed by her, with the interest thereon from the first day of June, 1859.

“ As the plaintiff has remained in possession of the property pending this controversy, it is but reasonable to allow the use and occupation to balance the interest on the $85,000 (dollars) of the purchase-money during the same period of time.

C. B. Moore, for appellant.

M. S. Bidwell, for respondent.

“ The defendant must be adjudged to pay the costs of this action. ,

“W. T. McCoun, ; .

Referee;."

By the Court—Hoffman, J.

The learned Referee hás noticed, in his opinion printed in the Case, the objections taken to the title, which the plaintiff can make to the property in question. The learned counsel of the defendant has furnished very elaborate points suggesting numerous objections and difficulties. We think there are no objections upon which any argument can justly be made, except those noticed by the Referee.

With regard to the first, (the sufficiency of the publication,) and the last, respecting an alleged will of Isaac Lawrence, we need add nothing to the reasons on which the Referee has held them unfounded.

The second objection we think not well taken. The order to show cause, is to designate time and place. The caption of the order is such as clearly to show that the Court was to be held, and that the place designated for holding it was the Surrogate’s office, in the city of New York, and that the 30th of August, 1843, was the time fixed for there holding it.

With regard to the point that service was not made on Moir, an occupant of part of the premises, we may add, besides the strong reasons of the Referee, that the deeds show a reservation of any rights which Moir had under his agreement for a letting.

Counsel refers to the statute, (1 R. S., p. 748, § 27,) providing, that “ every tenant to whom a declaration in ejectment or any other process, proceeding, or notice of any proceeding, to recover the land occupied by him, or the possession thereof, shall be served, shall forthwith give notice thereof to his landlord, under the penalty of forfeiting the value of three years’ rent.”

I do not see how this section applies to a notice of an intention to apply for a sale under a Surrogate’s decree for payment of debts; or how, when the landlord himself has been duly served, the neglect of the tenant could affect the decree as to the landlord’s title; nor in what way the omission to give due notice to an occupant and tenant, can have any operation, but to leave his rights unaffected.

There remains but one other objection which we deem it necessary to notice, viz., the admission to enter regularly the adjournment of the proceedings. It has been proved that there was in point of fact an adjournment made in a diary. But we hold clearly, that independently of this evidence, the objection would be groundless. It would be unendurable, if titles could be shaken by a failure of a Judge of a Court to have a record noted of his adjournments of proceedings. The presumption of regularity in obtaining a judgment, should not be allowed to be gainsayed for such matters, unless a statute had peremptorily directed a formal minute to be made, and invalidated the proceedings, if it was neglected.

We fully concur in the results of the Referee, whose judgment must be affirmed, with costs

Affirmed accordingly.