text:
    Holister E. Hessler, Appellant, v. G. Frederick Schafer, Respondent.

      Order granting or refusing an injunction pendente lite — when reversed.

    The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reversed upon appeal unless there has been an abuse of that discretion.
    Where an injunction order granted pendente lite is modified by the Special Term so as to allow certain changes to be made upon a building, on condition that a bond be given by the defendant to pay all damages which may be done to the plaintiff by such change, the General Term will not in a doubtful case review the discretion of the court below.
    Appeal by the plaintiff, Holister E. Hessler, from that portion of an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Onondaga on the 22d day of May, 1894, which vacated and set aside a temporary injunction order granted in the action so far as to permit the defendant to construct' two1 additional stories of brick on the one-story building or buildings heretofore constructed by Hessler & Schafer in the rear of the thre'e-story building on the corner of North Salina and Butternut streets in the city of Syracuse, now owned by defendant.
    The order was entered in Onondaga county and vacated and set aside an injunction order “ so far as to permit the defendant to construct two additional stories of brick on the one-story building or buildings heretofore constructed by Hessler & Schafer in the rear of the three-story building on the corner of North Salina and Butternut streets, in the city of Syracuse, now owned by defendant.’*

      Homer Weston, for the appellant.

      Charles P. Pyan, for the respondent.
   Hardin, P. J.:

Plaintiff, in January, 189J, took from defendant, the owner, a lease of certain premises described in the complaint. In the lease was a reservation in the following words : “ That he will permit the landlord or his agents to enter said premises at all reasonable hours to examine or make such repairs and alterations therein as shall be necessary, or as he may consider important, for the preservation and improvement thereof.” Plaintiff insists that the acts which the modification in the injunction permits exceed the privilege conferred by the clause in the lease, and contends that the premises need no repairs or alterations for the benefit of the plaintiff or his business, and his contention in that respect seems to be borne out, to some extent, by the cases of Dutton v. Holden (4 Wend. 613) and White v. Mealio (63 N. Y. 609). On the contrary, the defendant contends that the words of the lease permitting alterations in the premises, such as the landlord may “ consider important for the preservation or improvement thereof,” authorize the additions and improvements contemplated by the defendant and mentioned in the qualified language of the order from which the appeal is taken, and that the defendant, by virtue of the language, is authorized to make such alterations “ for the preservation and improvement thereof,” to wit, the premises, as he may consider important.” To support the contention of either party numerous affidavits were produced at the Special Term by the respective parties, and an examination of the affidavits reveals a stubborn conflict in respect to the evidence either side has deemed essential to aid in the construction of the language used in the lease. It is not improbable that the Special Term was in doubt as to what facts were established which legitimately bore upon the proper construction to be given to the language of the lease. The same difficulty confronts us when we attempt to resort to the facts and circumstances preceding and attending the execution of the lease and the subsequent acts of the parties thereunder. It is believed a more satisfactory determination of the proper construction to be given to the language used bry the parties can be reached after the testimony shall be given upon the trial of tlie action. We may, therefore, forbear to pronounce absolute construction of the instrument upon this appeal.

In Hudson River T. Co. v. W. T. & R. R. Co. (121 N. Y. 405) the court, after alluding to the conflict in the affidavits therein under consideration relating to an injunction, observed that upon the trial “the facts will be judicially ascertained, and, in case an appeal shall be taken upon the final judgment rendered to this court, we shall then be better able than now to determine the ultimate rights of the parties.” Following the views thus expressed the court allowed the action of the Special,Term to remain undisturbed, as in that case a condition had been annexed to the order.

In City of Gloversville v. J., G. & K. H. R. R. Co. (49 N. Y. St. Repr. 315) it was held: The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reviewed unless there has been an abuse of that discretion.”

In Benedict v. The Seventh Ward Railroad Co. of Syracuse (6 N. Y. St. Repr. 548) this court held, viz.: “ When a plaintiff is not entitled to an injunction on the pleadings as a matter of law, and all the allegations in the complaint are positively denied in the answer, the general rule is that an injunction pending the litigation will not be granted, or, if granted, will not be continued.” Section 629 of the Code of Civil Procedure provides for an application being heard to vacate or modify an injunction order, and contains the following language: “ Upon such hearing the court or judge may, where the alleged wrong or injury is not irreparable, and is capable of being adequately compensated for in money, vacate the injunction order upon the defendant’s executing an undertaking in such form and amount, and with such sureties as the court or judge shall direct, conditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order.”

In Chamberlin v. Buffalo, N. Y. & P. R. R. Co. (31 Hun, 339) it was said that “ where there is no attempt to meet the plaintiff’s case upon its merits, and the defendant seeks to remove the injunction by giving an undertaking, as now provided by the statute, the plaintiff has a right to exact an undertaking from the defendant in full and strict compliance with the statute.” In the case before us no complaint is made by the appellant of tlie form or adequacy of the undertaking provided for in the order appealed from. As we recall the great conflict in the affidavits used at the Special Term and the language found in the written instrument executed by the parties in respect to the premises in question, we are not inclined to say that the action of the Special Term was “ an improper exercise of the discretion of the judge,” or that the court so far exceeded “the just exercise of its discretion as to justify this court, on appeal, in reversing the order and vacating the injunction.” (City of Gloversvitte v. J., G. & K. H. R. R. Co., supra.)

The foregoing views lead to an affirmance of the action of the Special Term.

Martin and Merwin, JJ"., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Hardin, P. J".:

license: Public Domain

text:
    William B. Reynolds, as Executor, etc., of Celancy Reynolds, Deceased, Respondent, v. Amanda J. Strong, Appellant.

      Tenamcy by the entirety — election — acceptance of a benefit under a will — rights inconsistent therewith, renounced — recovery of the purchase price of real estate — defense of defeat of title — its validity not determined in the absence of interested parties — what is a marketable title.

    Where a husband and wife are the grantees named in a deed they take the premises therein described as tenants by the entirety, and the survivor takes the entire estate.
    The question as to whether the widow of a decedent has elected to accept the provisions of his last will and testament which were inconsistent with her ownership of certain real estate, the record title to which was in her name, ought not to he passed upon in an action brought to compel the specific performance of a contract to purchase such real estate, where the determination of such question in that action would not bind "all the persons interested in such property.
    The defense of want of marketable title is as available in an action at law, brought to recover the purchase price agreed to be paid by a person contracting to purchase real estate, as it would be in an equitable action brought to compel the specific performance of such contract.
    When the validity of the title of real estate is doubtful, the court ought not to determine the question and compel an acceptance of the title by a person contracting to purchase such real estate, in the absence of and without hearing all parties whose rights depend on the decision of the same. If there is a defect in the title which is curable, if the proper proceedings are taken for that purpose, the burden of causing the necessary steps tobe taken cannot be cast upon the purchaser.
    An agreement was made between the executor of an estate and an heir at law of the deceased, under their respective hands and seals, for the sale of certain real estate, supposed to have been owned by the deceased. By the terms of the contract-the executor agreed to sell such real estate for a specified sum, which the heir at law agreed to pay in the manner therein specified, on receiving which at the time and in the manner specified the executor agreed, at his own proper cost and expense, to execute and deliver to such proposed purchaser or to her assigns, V a, good and sufficient executor’s deed of the said premises, accompanied by a certified search from the clerk of the county ” in which said premises were situated.

      Held, that the covenants in the contract were mutual and dependent;
    That the vendor was obliged to give a good title;
    That the language used required not only a deed good in its phraseology and form, but one that transferred a good and sufficient title, not one merely valid-in point of fact, but one that was marketable and such an one as might be sold, to a reasonable purchaser or mortgaged to a person of reasonable prudence as1 security for the loan of money.
    Appeal by the defendant, Amanda J. Strong, from a judgment-of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Schuyler on the 15th day of February, 1894, upon the decision of the court rendered after a trial at the Schuyler Circuit.

      Jcured T. Hewmcun, for the appellant.

      Chcvrles II. Everts, for the respondent.
   Hardin, P. J".:

Gideon Reynolds and Celaney Reynolds, his wife, November 5y 1867, received a conveyance from William Cory of the lands described in the complaint, consisting of about 125 acres, lying in the town of Hector, Schuyler county, for the consideration of $5,000, recited in the conveyance. They took as tenants by the entirety and the survivor took the whole estate. (Bertles v. Nunan, 92 N. Y. 152 Bram v. Bram, 20 Wkly. Dig. 519 ; 39 Alb. L. J. 87; Wurz v. Wurz, 27 Abb. N. C. 58, and notes; O'Connor v. McMahon, 54 Hun, 66; 26 N. Y. St. Repr. 596; Coleman v. Bresnahan, 54 Hun, 619 ; Miner v. Brown, 45 N. Y. St. Repr. 189; Zorntleln v. Bram, 100 N. Y. 12; Stelz v. Shreck, 128 id. 263 ; 40 N. Y. St. Repr. 267; Germania Sav. Bank v. Jung, 18 N. Y. Supp. 709; Jooss v. Fey, 41 N. Y. St. Repr. 213.)

On the 7th day of November, 1867, Gideon Reynolds executed a mortgage to William Cory for $3,000, which was recorded on the 26th of March, 1875, which still remains open on the record, not having been satisfied by Gory in his lifetime or by his administrator. Subsequent to his death his administrator commenced an action in this court for the foreclosure of the mortgage. Subsequent to the death of Gideon Reynolds, which occurred on the 23d day of March, 1875, his widow and their three children, William B. Reynolds, Amanda J. Armstrong and Mrs. Thomas, interposed an answer to the foreclosure suit challenging the validity of the mortgage and the attempted lien upon the property, and the issues formed in that action were brought to trial at a Special Term of this court held on the 25th of June, 1878, which court “found and decided that said Gideon and Oelancy Reynolds took and held said premises as tenants by the entirety; that on the death of said Gideon Reynolds said mortgage was void; that the plaintiff had no right of action upon said mortgage, and that the complaint in said action be dismissed, and directing judgment thus to be entered dismissing the plaintiff’s complaint, without costs to or against either party, which findings and decisions were filed and entered in the office of the clerk of Schuyler county on the 19th day of April, 1892.” It d,°es n°t appear that any judgment was entered on that decision. On the 2§d day of May; 1873, Gideon Reynolds made and published his last will and testament, which was duly admitted to probate, after his death, by the surrogate of Schuyler county, wherein, among other things, he bequeathed unto his wife, Celancy Reynolds, all his personal property of every kind and nature; and he also in the same will gave to his wife “ entire possession, use and control of all my farm or real estate, consisting of 120 acres of land on lots No. 85 and 86 in the town of Hector, * * * where I now reside, to be used and enjoyed by her without impeachment for waste during her natural life for her comfortable support and maintenance.” The will also contained further provisions, to wit: It is my will ■ and I hereby order and direct that my whole estate, personal and real, shall be applied and devoted to and for the comfortable support and maintenance of my said wife, Celancy Reynolds. * * * And in case the personal property left at my decease, after paying debts and funeral charges, together with the rents, issues and profits of real estate, shall not be sufficient for her comfortable support and maintenance as above provided for and specified * * ' * then, and in that case, I hereby authorize and direct my executor hereinafter named to raise the additional amount necessary to meet such deficiency by executing a mortgage upon such real estate, or otherwise, and pay the amount when so raised to her for such support as hereinbefore provided.” And the will also further provided as follows: 3. After the death of my said wife, Celancy Reynolds, I hereby authorize my said executor to sell and convey all my real estate, and whatever may remain of my personal estate, and out of the funds arising from such sale or sales, pay the funeral expenses of my said wife and such debts and liabilities as herein authorized and contemplated, and the residue and remainder of my estate be disposed of as hereinafter directed. X. I give and bequeath to my daughter Amanda Strong, wife of Larue P. Strong, and Lydia Thomas, wife of John E. Thomas, each the sum of $1,700. The above legacies to my daughters is intended to make them equal sharers with my son, William B. Reynolds, to whom I have already given a like amount, and the residue of my estate, if any, after paying the two legacies to my two daughters as above provided, I give and bequeath to my three children, my two daughters above named, and my son, William B. Reynolds, equally, share and share alike.”

The will named William B. Reynolds as executor, and he received letters testamentary and settled up the estate and was discharged by the surrogate upon a final accounting. The testator left no other real estate. The personal property, after the payment of the debts and expenses, amounted to about $1,220, and the possession thereof was delivered to Celancy Reynolds, she executing back to the executor a promissory note, conditioned to be paid in the event it was necessary for the payment of his debts, she claiming the property under the will.- When the executor settled the estate, he had ascertained that it was not necessary that her note should be paid, and he brought it into the settlement and received credit therefor in his final accounting. Inasmuch as her note had been simply given to protect the executor in case lie should be compelled to j>ay the Cory mortgage, or any other indebtedness of the testator, he was credited with the note upon the assumption that he had paid to her the amount thereof as legatee under the will. The final accounting did not take place, however, until after the death of Oelancy Reynolds, which occurred on the 1st day of 'September, 1890. She remained in possession of the personal property thus acquired under the will of her husband, and she remained in possession of the real estate mentioned in the complaint and mentioned in his will as aforesaid, and continued therein until the time of her death. She left a last will and testament made and published on the 24th day of September, 1885, which was duly admitted to probate by the surrogate of Schuyler county, and letters testamentary were issued to the plaintiff, her son, who was named therein as the executor. In her will she bequeathed to her daughter Lydia Thomas and to her son William B. Reynolds each the one equal one-third part of all her real and personal estate absolutely, and the second paragraph of her will was as follows : The remaining one-third part of my said estate I give, devise and bequeath to my daughter Amanda J. Strong, to be used by her for her use and benefit during her natural life, hereby giving her full power to sell and convey the same and use it as she may see fit, and in the event of her dying without a will, that portion which shall remain at her decease, or the proceeds of the same, I hereby give, devise and bequeath to her five children, viz., Leander Strong, Oory Strong, Lewis P. Strong, Ella Strong and Lee Strong, or to such ones of said children as shall be living at the decease of said Amanda.” And the third provision of her will was as follows: I hereby authorize and empower my executor hereinafter named to sell and convey any and all of my real estate and divide the proceeds as herein provided. Likewise I make, constitute and appoint William B. Reynolds, my son, to be executor of this, my last will and testament, hereby revoking all former wills by me made.” The plaintiff, her executor, about the 2d of October, 1890., received letters testamentary from the surrogate and entered upon the dischai’ge of his duties as such, and on the 14th day of JVIai’ch, 1892, he entered into an agreement with the defendant, his sister, under their hands and seals, for the sale of the farm described in the complaint, and by tbe terms of tbe contract so entered into by tbe parties tbe plaintiff agreed to sell for tbe sum of $4,375 the land described in tbe complaint, consisting of about 125 acres of land, for tbe sum of $4,375, which sbe agreed to pay for as follows : On tbe 1st day of April, 1892, §2,916.67 in money, $500 by receipt for that amount to apply on ber distributive share or legacy under tbe will of Oelancy Reynolds, deceased, and ber note for $958.33, with interest from tbe 1st day of April, 1892, to be collaterally secured by an assignment on ber interest in tbe estate of Oelancy Reynolds, deceased.” And be agreed as follows: “ On receiving such payment, at tbe time and in tbe manner above mentioned, shall, at bis own proper cost and expense, execute and deliver to the said party •of tbe second part, or to ber assigns, a good and sufficient executor’s •deed of said premises, accompanied by a certified search from the clerk of tbe county of Schuyler.” Indorsed upon that contract is the $500 down payment by way of a receipt mentioned in tbe contract. It may be observed the covenants in the contract were mutual and dependent (James v. Burchell, 82 N. Y. 108), and that tbe vendor was obliged to give a good title (Bostwick v. Beach, 31 Hun, 343), and that tbe language used required not only a deed good in its phraseology and form, but one that transferred a good and sufficient title (Story v. Conger, 36 N. Y. 673), and a title that was not merely valid in point of fact, but one that was marketable, such an one as might be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as security for the loan of money.- (Moore v. Williams, 115 N. Y. 586; The Methodist Episcopal Church Some v. Thompson, 108 id. 618; Haffey v. Lynch, 143 id. 247.) The defendant was in possession of the premises at tbe time tbe contract was entered into, having bad the occupancy from tbe time of ber mother’s death, and claims to occupy as a devisee under ber father’s will, subject only to tbe power of sale given to bis executor as a tenant in common with ber sister, Lydia B. Thomas, and ber brother, William B. Reynolds. Apparently the defendant in good faith entered into tbe contract for the purchase of tbe premises, and sought with some diligence to perform the requirements of tbe contract on her part; however, when sbe sought to raise money upon the premises, of a lender who had given ber assurances that he would furnish ber money, sbe was finally refused a loan by the party to whom she had applied, he having made inquiries as to the condition of the title to the property, and having learned that the mortgage given to Cory remained unsatisfied of record, and that the sister of defendant and of the plaintiff, Mrs. Thomas, claimed an interest in the property to the extent of the $1,700 legacy named in the will of her father, and the lender refused to make the advance necessary to enable the defendant to complete the purchase, and' thereupon the defendant was unable to carry out the terms of her contract for the purchase of the premises according to the tenor and spirit of the contract entered into by her with her brother, the plaintiff, executor of the will of Oelancy Reynolds; thereupon this action was commenced to recover the purchase price mentioned in the agreement, and the plaintiff in his complaint alleges a tender of the deed and demand of performance of the contract. In answer thereto the defendant says that he has not tendered a good title, and that he was not possessed of a good title or power to convey such an one, inasmuch as it is asserted that Celancy Reynolds, by accepting the personal property mentioned in the bequest made to her by Gideon Reynolds, elected to adopt, confirm and approve his will, which undertook in terms to dispose of the real estate in question to his heirs at law; and the answer of the defendant also sets up that the title tendered by the plaintiff was not a marketable one, and, therefore, she was not obliged to fulfill the stipulations of the agreement on which the plaintiff rested his right of recovery. The trial court held, as matter of law, that the plaintiff was entitled to recover, and awarded judgment for the balance stated tobe due upon the contract, to wit, $3,875 and interest.

(1) It is insisted in behalf of the appellant that Celancy Reynolds, by receiving the personal property bequeathed to her by the will of Gideon Reynolds, elected to carry out tlie provisions of her husband’s will, and, hence, that at the time of her death she had not title to the real estate in question which would pass under her will, and that the power of sale mentioned in her will of the real estate was inoperative, and, therefore, that the plaintiff by tendering a deed did not offer to the defendant a good title to the property described therein. It appears by the evidence that before the deed was tendered by the plaintiff to the defendant the sister, Mrs. Thomas, had instituted proceedings before the surrogate against -the executor, the plaintiff, seeking to recover the $1,700 mentioned in her father’s will, and that the plaintiff had notice of such claim, as did also the defendant. A hearing was had before the surrogate and he finally, on May 5, 1892, reached the conclusion to dismiss the proceedings “ upon the ground that it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate of Gideon Reynolds, deceased, applicable to the payment or satisfaction of the petitioner’s claim within subdivision 2 of section 2718, Code of Civil Procedure, and without prejudice to an action or an accounting in behalf of the petitioner.” The decision seems to have been made on the 5th day of May, 1892, and about that period the plaintiff and the defendant were'advised in behalf of Mrs. Thomas that her claim would be persisted in and that proceedings would be taken to enforce the same; and on the 12th of May, 1892, when the plaintiff tendered the deed, he had knowledge of the position taken by his sister, Mrs. Thomas, who insisted that, by reason of the election of her mother to accept the personal property mentioned in the will of the father, her:claim was a valid one and could be enforced out of the real estate in question.

In Havens v. Sacketts (15 N. Y. 365) it was held: “ In equity one who accepts a benefit under a deed or will must adopt the whole contents of the instrument, and renounce every right of his own .inconsistent with its full effect and operation, though otherwise legal and well founded. Tie must elect to renounce the beneficial interest given by the instrument or to make good any disposition which the testator has affected to make of property which is not his own, but that of a beneficiary thus bound to make an election.”

In Leonard v. Crommelin (1 Edw. Ch. 206) it was held that “ a person shall not claim an interest under an instrument (either deed or will) without giving full effect to the same as far as he can, and renouncing any right which would defeat it. ITe who makes his election is bound to abide by it, unless he can restore the property to its original situation; and the taking possession binds the performance, although there be a loss.”

In Gaulfield v. Sullivan (85 N. Y. 159) it was said, viz.: By accepting the provision made for her she assented to all the terms ' and conditions annexed to it, and yielded every right inconsistent with such terms and conditions. One who accepts of a devise or bequest does so on condition of conforming to the will. No one is allowed to disappoint a will under which he takes a benefit, and every one claiming under a will is bound to give full effect to the legal dispositions thereof so far as he can. (Chamberlain v. Chamlain, 43 N. Y. 424.) And where one is thus put to his election under a will, it matters not that what he takes turns out to be greater or less in value than that which he surrenders. (Brown v. Knapp, 79 N. Y. 136.)”

The same doctrine was stated in Lee v. Tower (124 N. Y. 375) in the following language: “No one can be allowed to disappoint a will under which a benefit is accepted, but, on the contrary, must concede full effect to the dispositions thereof.”

Appellant calls attention to Worthington v. Wiginton (20 Beav. 67), and 6 American and English Encyclopaedia of Law, 251, and other cases in harmony with those from which quotations have already been made. On the other -hand, it is claimed by the respondent that an election was not proven by unequivocal acts; that the presumption is that she did not elect, and it is insisted that if her acts can be construed or a meaning given to them inconsistent with an election, then no election was made; and in support of that contention reference is made to Cox v. Rogers (77 Penn. St. 160); Story’s Equity Jurisprudence (§§ 1097, 1098); Pomeroy’s Equity Jurisprudence (§§ 514, 515); Spread v. Morgan (11 House of Lords, 588); Marriott v. Badger (5 Md. 306) and Whitridge v. Parkhurst (20 id. 62). And it is also insisted by the respondent that Celancy Reynolds did not take possession of the personal estate or the real estate under the will of Gideon Reynolds, and that there were no certain and unequivocal acts indicating an election. It appears in the evidence that she remained in possession of the real estate from the time of the death of her husband in 1875 to 1890, the time of her death. It is to be borne in mind, however, that by the terms of the will of Gideon Reynolds she was given a life use of the property, and whether she was in possession as owner or in the enjoyment of her life estate in virtue of the will, if she had made an election, is not made absolutely clear by the evidence furnished upon the trial. It is insisted in behalf of the respondent that the fact that she joined .in the defense made to the Cory mortgage indicates that she had made no election. However, it is to be observed that nothing is discovered in the findings made on the trial of that action which indicates precisely the nature and chai’acter of the defense interposed, nor the evidence offered in support of the position taken in the answer of the defendants in that action.

It is to be observed that a solution of the question presented by the contention of the respective parties in regard to whether there was an election, if determined in this action, would not bind Mrs. Thomas ; and in Fleming v. Burnham (100 N. Y. 8), ydiere the question was raised as to whether a purchaser should be required to take a title as to which certain objections were made, it was said: “ The purchaser is entitled to a marketable title, free from reasonable doubt; ” and after stating that the parties to an action are bound by the determination therein made, the court observes: But the court stands in quite a different attitude where it is, called1 upon to compel a purchaser to take title under a judicial sale, who asserts that .there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts. In either case it may very well happen that the question is so doubtful that although the court would decide it upon the facts'disclosed, in a proceeding where all the parties interested were before the court, nevertheless it would decline to pass upon it in a proceeding to compel a purchaser to take title and would relieve him from his purchase. The reason is obvious. The purchaser is entitled to a marketable title.' A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication and could raise the same question in a new proceeding. The cloud upon the purchaser’s title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have. It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact, where the .facts presented upon the ajDplication might be changed on a new inquiry or are open to opposing inferences. There must doubtless be a real question and a real doubt. But this situation existing, the purchaser should be discharged. (Shriver v. Shriver, 86 N. Y. 575, and the cases cited ; Hellreigel v. Manning, 97 id. 56.) ” And in Abbott v. James (111 N. Y. 673), the case from which the quotation has just been made was apj>roved, and it was an action to compel specific performance on the part of the defendant, the purchaser, of a contract to purchase certain real estate, and in the course of the opinion delivered in that case, Einoh, J., observes: Numerous authorities are cited on both sides and many considerations are advanced not necessary to be rej)eated. While upon the inquiry involved I have, perhaps, formed some decided opinion, I am obliged to admit that the question is doubtful and debatable, and justifies the differences of opinion which have risen among us. Those differences have not been wholly founded upon questions of law, but have rested somewhat upon the uncertain and undisclosed character of the facts ; for while they are settled in this case by the complaint and demurrer, the heirs may show them to be entirely different and will be at liberty to do so if they can. •* * * In puch an emergency we must remember that if we force this title upon the purchaser, he may have to confront the heirs at law in a future litigation. They are not before us and will not be bound by our decision. They will have a right to be heard, both as to the facts and the law, and since the question is doubtful and quite evenly poised we think we ought not to expose the purchaser to the possible risks of the situation. We have, therefore, briefly stated the question sufficiently to disclose its general character, and without any argument upon it, which would be improper in view of our conclusion.” With due deference to the cases from which the quotations have been made we are led to the conclusion that the question of election ought not to be passed upon in such a way as to compel the defendant to accept the title tendered by the deed of ’the plaintiff, and that if such a conclusion were to be asserted in this action it would not bind Mrs. Thomas, who is not a party to the suit. If the plaintiff had brought this action for specific performance of the contract in question, and had interpleaded Mrs. Thomas, so that all of the questions of fact as well as of law could have been authoritatively established and made binding upon Mrs. Thomas as well as upon this defendant, the questions which the plaintiff has sought to have solved in his favor might have been considered and conclusively determined. Bearing in mind besides the question of election to which reference has been made, it appeared at the trial of this action that the Cory mortgage remained unsatisfied of record, and that no judgment in the action of foreclosure had been entered, we are. of the opinion 'that the plaintiff did not present a marketable title, which the defendant should be compelled to accept. The defendant would be exposed to litigation; she would have a piece of real estate which her father had at least clouded by his will, and which had on it an apparent lien created by the mortgage executed by her father to Oory.

In Jordan v. Poillon (77 N. Y. 521), in speaking of a purchaser, the court observed “he should not be left, upon receiving a deed, to the uncertainty of a doubtful title or the hazard of a contest with other parties, which may seriously affect the value of the property if he desires to sell the same. It is easy to. see how a claim of this kind might impair the value of the real estate sold by casting a cloud over the title, or by subjecting the purchaser to the risks of a contest at law. From such a result he is entitled to protection, and the case should be very plain which would authorize a court to decide a question arising on a motion to compel a party to take a conveyance; ” and in The Methodist Episcopal Ohurch Home v. Thompson (108 N. Y. 618), which was ah action brought to recover back a payment made upon a contract of purchase, it was held : “A reasonable doubt as to the vendor’s title, such as to affect the value of the property and to interfere with a sale thereof to a reasonable purchaser, is sufficient. This rule applies as. well in such cases as where the vendor sues for specific performance.” The same doctrine was reasserted in Kilpatrick v. Barron (125 N. Y. 751). In Moore v. Williams (115 N. Y. 586) it was held that “ where there is a defect in the record title, or an apparent incumbrance upon the premises, and the vendee, in order to defend his title, would be obliged to resort to parol evidence, he may refuse to complete his purchase, at least, except in extraordinary eases, in which it is very clear the purchaser can suffer uo harm from the defect or incumbrance.” In that case there was an outstanding lien, and near the close of the opinion it is said: “ The vendors should be at the expense of clearing the title of this cloud, and it is not just that they should cast that burden upon the vendee and require him to take an unmarketable title.” And in Fisher v. Wilcox (77 Hun, 208) it was held, viz.: “ "When the validity to the title of real estate is doubtful the court ought not to determine the question and compel an acceptance of the title in the absence of and without hearing all the parties whose rights depend on the decision of the same.” (McPherson v. Smith, 49 Hun, 255.) And in Crouter v. Crouter (133 N. Y. 55) it was said, near the close of the opinion, “ The defect is also curable if the proper proceedings are taken for that purpose. But the burden of causing the necessary steps to be taken to conclude the defendants in this action cannot be cast upon the purchaser at the sale. He has a right to expect and demand a marketable title, and one free from a reasonable doubt as to its validity.” (Vought v. Williams, 120 N. Y. 253.)

In Moore v. Williams (supra) it was held: “Although the distinction between good and marketable titles is peculiar to courts of equity, since the union in this State of law and equity in the same courts, an action at law by the vendee to recover back purchase money paid may be based upon the equitable ground for rejecting a title, i. e., that it is not marketable.” That case seems to be an authority for holding that the defense of a want of marketable title is as available in a law action brought to recover the purchase price as it would have been in an equitable action for specific performance. (See opinion, 591.) i

The foregoing views lead to the conclusion that the judgment should be reversed and a new trial ordered.

Martin and Merwin, JJ., concurred.

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


author: Hardin, P. J.:

text:
    George L. Munroe and Another, Appellants, v. Priscilla H. Judson, Respondent.

      Pa/i'tnership between married women ■ — • their husbands may act as agents of the firm —• contribution to losses must be made by the firm, not by the individual members — knowledge necessary to the ratification of the acts of an agent.

    If a partnership be formed between three married women, the members of such firm, after the formation thereof, are capable of employing their three husbands to act as agents for and in behalf of the firm, and to clothe them, respectively, with power and authority to transact the firm’s business.'
    A husband transacting business for his wife, a member of a firm, under a power of attorney executed by her, with the knowledge and consent of the other members of the firm, is an agent of the firm and not of his wife individually.
    It is the general rule that partners must contribute, ratably, their shares of the losses and debts of the firm, and the losses growing out’of the defalcation and negligence of an accredited agent of the firm fall on the firm and not on any member thereof individually.
    The ratification of an act of an agent, previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts.
    Appeal by the plaintiffs, George L. Munroe and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 4th day of December, 1893, upon the report of a referee.
    It was adjudged by the judgment appealed from that the com-, plaint of the plaintiffs herein, so far as it seeks to charge the defendant with the shortage in cash of the firm of Munroe, Judson & Stroup, be and the same hereby is dismissed upon the merits.
    That out of the assets of said partnership of Munroe, Judson & Stroup, now remaining, there first be paid the notes held by Mary A. Munroe and Priscilla TI. Judson against said partnership, and any other debts of said partnership now existing.
    That after the payment of debts, costs and expenses hereinbefore stated, the plaintiff Mary A. Munroe, and the defendant, Priscilla H. Judson, be each paid the sum of $2,816 out of the assets of said partnership then remaining, for capital furnished by them to said partnership. '
    That the existing assets of the firm of Munroe, Judson & Stroup, after making the payments therefrom hereinbefore provided for, belong equally to the parties to tliis action, tlie defendant and each of the plaintiffs being entitled to one-third thereof.
    That either of the parties to this action was entitled to the appointment of a receiver of the said partnership and its assets, with the usual powers and duties of receivers in such casés, to carry out the provisions of the judgment herein, and that either party might apply upon the foot of this judgment, upon giving the usual notice, for the appointment of such receiver.

      F. F. Hamilton, for the appellants.

      F. G. Finolce, for the respondent.
   Hardin, P. J.:

Mary A. Munroe, Mary A. Stroup and Priscilla IT. Judson (the defendant), in April, 1881, formed a co-partnership in the city of Oswego, for the purpose of dealing in unleached ashes, which were to be purchased in Canada by the firm, and sold in the United States, and in other places as should be found profitable. Each partner was to contribute capital for the purpose of carrying forward the business, and each was to be i entitled to an equal share of the profits that might be realized in the partnership business, and each was to share her equal portion of any loss or losses that might be incurred or met in the operations of the said partnership. The business carried forward was actually under the supervision of the husbands of the three female partners, and the business was continued until tne 1st day of February, 1892, when, by mutual consent, it was dissolved. Defendant’s husband, David IT. Judson, died on the lJth day of November, 1891. At the time of the dissolution there were certain moneys on deposit belonging to the firm, and there were certain demands and bills receivable uncollected. Plaintiffs, in their complaint, charge against the defendant, viz.: “ That .since the commencement of the business operations of said partnership, the defendant has, from time to time, received and applied to her own use, from the moneys, receipts and profits of the said co-partnership business, large sums of money, greatly exceeding the proportion thereof to which she was and is entitled, amounting in the aggregate to about the sum of $30,000, including interest, or thereabouts, the precise amount of which is more in the knowledge of the defendant than the plaintiffs, and in order to conceal the same said defendant, who has. always had the keeping and management of the co-partnership books by and through her duly authorized agent, has falsified the account thereof by false entries and failure to properly balance and keep a true account of the transactions of said partnership firm, without the consent and knowledge of the other members thereof, and which defendant, although often requested so to do by plaintiffs, has neglected and refused to account for and pay to the plaintiffs his or her share thereof.” It was alleged in the complaint that on the 19th of August, 1892, Mary A. Stroup assigned and transferred all her interest in and to the partnership, its assets and claims against the partners and other persons growing out of the partnership transactions, to her husband, George L. Munroe. And it is also alleged “ that the said sums so claimed to be due from the said defendant to the plaintiffs aggregate $30,000 ■or thereabouts.”

Complaint is made by the appellants of certain findings of fact made by the learned referee and stated in his report. A careful •examination of the evidence leads to the conclusion that the material findings of fact made by the referee are supported by the evidence, or the proper inferences to be deduced therefrom. At about the time of the formation of the partnership it appears that the husbands of the partners were insolvent,. or substantially so, and that they conceived the idea of the formation of the partnership and the transaction of the business in the names of their wives as such partners, and that to further that purpose three several powers of attorney were executed by the respective wives to the respective husbands authorizing them to transact any or all business for and in their behalf. After the execution of such powers of attorney, and the formation of the co-partnership as aforesaid, it was understood that George L. Munroe was to do the principal buying in Canada, and David H. Judson was to keep the books and manage the financial part of the firm’s business at an office in the city of Oswego, and that Jacob Stroup was to sell the ashes and makq collections. After the business of the firm commenced, the several husbands entered upon the discharge of their respective duties for and in behalf of said firm, and, at the close of each year, balance sheets or statements of the affairs were prepared in behalf of said firm, and a copy-inspected by each of the husbands from year to year, and upon the balance sheet it was indicated that one-third of the profits was to be distributed in accordance with the terms of the co-partnership. It seems to have been understood that $1,000 should be allowed by way of compensation to each of the husbands annually for their services rendered for the firm, and that the only provision made for the payment, or the only payment made, was through the medium of the partnership assets. It appears satisfactorily by the evidence that the defendant executed to her husband, David H. Judson, a. power of attorney substantially like the other two, executed by the other wives to their husbands, and that, with the assent and knowledge of all the parties, the respective husbands acted as the agents, of the firm in the transaction of the firm’s business. It appears by the evidence that the partners personally gave little or no attention to the business, and that the great bulk of the business was transacted by the agents of the firm through the entire period of its existence. Undoubtedly the three wives, after the formation of the partnership, were capable of employing the three husbands to act as agents for and in behalf of the firm, and to clothe them respectively with power and authority to transact the firm’s business. (Martin v. Hector, 101 N. Y. 77; Knapp v. Smith, 27 id. 277.) Upon the evidence and upon the facts found by the referee we think he was warranted in reaching the conclusion that the several husbands “ were each agents of the partnership collective!}7 and not of the individual partners” in the transaction of the business of the co-parnership. Under the evidence we think a finding would not have been warranted by the referee that each wife, in consenting to the firm’s employing her husband as agent for the firm, guaranteed or undertook individually to and with such firm that the acts and doings of such agent for the firm should be performed with fidelity and honesty. On the contrary, the assumption seems to have been in behalf of the firm that the agents so employed should transact the business of the firm as employees of the firm without any undertaking or security being given to the firm for the faithful discharge of the duties arising from such agency. Undoubtedly the principals in the partnership had implicit confidence in the agents employed by the firm to transact the business of the firm. No evidence is found in the appeal book indicative that the defendant had any knowledge of the peculations, abstractions or embezzlements carried forward during the existence of the co-partnership by her husband, and, although he was in some respects her agent to collect her rents on her separate property and assumed to act for her in respect to her private affairs, there is no evidence found to indicate that he had any express or implied authority from her to commit any of the wrongful acts which were perpetrated by him against the partnership, and in the perpetration of such acts he was acting entirely without the scope of his authority and his agency for her individually, and also beyond the scope of his authority for the firm and in violation of his duty to the firm; and the case seems to fall within the general rule that partners must contribute ratably “ to their shares of the losses and debts of the firm,” and as Judson was the accredited agent of the firm “the losses growing out of his defalcation and negligence ” fall on the firm and not on the members thereof individually. He sustained a fiduciary relation to the partnership (Holmes v. Gilman, 138 N. Y. 369), and the evidence fails to disclose any adoption or ratification by the defendant of his wrongful acts.

In Smith v. Tracy (36 N. Y. 86), in the course of the opinion delivered by Porter, J., he adds his approval to the language of Judge Story, where he says: “No doctrine is better settled, both upon principle and authority, than this : That the ratification of an act of an agent previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts.” The case in hand is quite distinguishable from Henry v. Allen (77 Hun, 49).

It seems quite manifest that when Judson wrongfully took from Jhe firm funds, and concealed the fact by wrong entries on his books and appropriated the funds to his own use, either by directly paying out the same or depositing them in a bank to his own credit, that he was not engaged in any sense in the business of his wife or acting within the scope of any agency which she had created in her individual capacity as contradistinguished from her relation as a member of the firm. "When he thus took possession of the funds of the firm and diverted them from the firm’s use and ownership, he was acting in the service of the firm. The principal question involved has been very fully and very clearly discussed by the learned referee and numerous cases cited in tbe opinion which be delivered, and tbe views already expressed, as well as those stated by tbe learned referee, lead to tbe conclusion that upon tbe essential proposition tbe conclusion reached by tbe referee should be sustained.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


text:
    Norris Winslow, as Trustee, etc., Appellant, v. The Carthage, Watertown and Sacketts Harbor Railroad Company and Others, Defendants. In the Matter of the Application of Addison L. Upham, County Treasurer, etc., Respondent.

      Moneys paid into court — practice for the determination of the amount of fees of the county treasurer and the disposition of the fund.

    When, in an action brought by the trustees named in a mortgage to foreclose the same, a defendant pays into court a certain amount of money by depositing the same with the county treasurer of the county in which the action is triable, the county treasurer should, after the rendering of a judgment in the action dismissing the plaintiffs complaint on the merits, apply to the court for instruction as to the funds so deposited with him, giving notice of his application to the persons interested; upon which application the direction of the court as to the fund can be ascertained-, and the extent of the lien thereon of the trustees named in the mortgage determined, and also the allowance of such fees to the county treasurer as ho is entitled to receive.
    Where there has been no formal judgment or order authorizing the county treasurer to pay out of court the funds deposited with him in an action, it is improper practice for him to make a motion for an order “adjusting his fees as county treasurer in the receiving and paying out in this action the moneys,” etc. (Merwin, J., dissenting.)
    Appeal by tbe plaintiff, Norris Winslow, as trustee, etc., from an order of tbe Supreme Court, made at tbe Jefferson Special Term and entered in tbe office of tbe clerk of tbe county of Jefferson on tbe 2d day of November, 1894, fixing tbe fees of tbe respondent for receiving and paying a certain sum of money, directing tbe payment thereof by tbe defendant, The Carthage, Watertown and Sacketts Harbor Railroad Company, and directing tbe respondent to refuse the demand of the plaintiff for the payment of a fund, held by the respondent, to him, and further directing the respondent to deliver over to the defendant, The Carthage, Watertown and Sacketts Harbor Railroad Company, certain bonds.

      D. G. Griffin-, for the appellant.

      Smith c& Smith, for Addison L. TJpham, county treasurer, respondent.
   Hardin, P. J.:

After the commencement of this action, October, 1891, to foreclose a mortgage given to the plaintiff, as trustee (and to his co-trustee, Sherman), a tender was made by The Carthage, Water-town and Sacketts Harbor Railroad Company on the 6th of January, 1892. Thereafter an amended answer was served by The Carthage, Watertown and Sacketts Harbor Railroad Company alleging the tender. And it is alleged in the answer of The Carthage, Water-town and Sacketts Harbor Railroad Company that the money was, on or about June 4,1892, duly paid into this court to the credit of this-action, by paying the same to the county treasurer of Jefferson county, that being the county in which this action was triable.”

The issues joined by the answer were put to a trial at a Special Term in Jefferson county, and the court found that the tender was sufficient and dismissed the plaintiff’s complaint on the merits, with costs to defendants, and a general judgment to that effect was entered upon the decision so made. In the findings made it is stated that the said moneys and checks so deposited with Yermilye & Co. remained there on such tender until on or about June 4,1892, when they were duly paid into this court to the credit of this action, by paying the same to the County Treasurer of Jefferson county, that being the county in which this action is triable, and the said moneys can now be had by the parties entitled thereto upon the delivery of the bonds and coupons aforesaid.”

It was found that the mortgage contained no provision which required the mortgagor to pay the expenses and compensation of the trustees.

There has been no formal judgment or order entered authorizing the county treasurer to pay out of the court the funds so deposited with him. The trustees have a lien on said funds for their compensation. (Woodruff v. N. Y., L. E. & W. R. R. Co., 129 N. Y. 27.) The county treasurer lias not been authorized by any formal order to pay over the fund which came into his hands as the fruit of this action, and no adjudication lias been made which discharges the lien which the trustees have upon such fund. The extent of that lien ought not to be determined without notice to t-he Lincoln National Rank. If the county treasurer (liad applied for instructions as to the fund, and given notice of his application to the bank, he might have obtained the direction of the court as to the fund, the extent of the lien thereon of the trustees, and an allowance of such fees as he was entitled to receive. Instead of adopting tha.t course he has made the motion which led to the order now under review. In his notice of motion he asks for an order “ adjusting his fees as County Treasurer in the receiving and faying out in this action the moneys,” etc. He thus assumed that he had received and paid out the moneys as an officer of the court.

The Special Term has by its order allowed the county treasurer $500 to be paid by The Carthage, Watertown and Sacketts Harbor road ; The Carthage, Watertown and Sacketts Harbor road has not appealed, - and, therefore, is not entitled to complain, and as the appellant does not ask to have that part of the order reversed, there is no occasion to interfere with that part of the order. ' The foregoing views lead to a modification of the order.

Martin, J., concurred; Merwin, J., dissented.

Order modified by striking out all of the second paragraph, beginning with the words, It is further ordered,” and ending with the words, shall be discharged from all further liability in relation to •the said fund,” and as so modified affirmed, without costs.


text:
    Ralph S. Scobell, Respondent, v. Sidney S. Block and Another, Appellants.

      Appeal — conclusions of lam of the trial court, when not reviewed — when property becomes a fixture.

    Where, upon the trial of an action, certain articles of personal property are held, as matter of law, not to be fixtures, if no exception is taken upon the trial to such ruling, no question of error is presented upon appeal in regard thereto, and if there is-no request to submit any question of fact in respect to such articles to the jury, the court upon appeal must accept the conclusion reached by the trial court.
    Three things must unite to constitute property a fixture, namely, actual annexation to the realty or something appertaining to it: application to the use or purpose to which the part of the real estate with which it is connected is appropriated, and the intention of the party making the annexation to make a permanent accession to the freehold. >i ■
    Martin, J., dissenting.
    Appeal by the defendants, Sidney S. Block and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 2d day of March, 1894, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and also from an order, made at the J.efferson Circuit and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover for the conversion of certain personal property described in the complaint which, it is alleged, the defendants converted to their own use when it was contained in the St. Jjawrence brewery at Cape Yincent. Plaintiff owned the fee to the brewery in 1883 and executed a real estate mortgage thereon for $4,000, which mortgage was foreclosed and a sale made thereunder at the office of Judge McCartin by the sheriff of Jefferson county, and the defendants became purchasers at said sale on the 31st day of August, 1891. The mortgage did not enumerate the articles in question nor did the deed executed by the sheriff describe the articles in question in any manner, and it contained only words describing the real estate. Several exceptions were taken by the defendants during the progress of the trial.

      H. F. Breen and W. F. Porter, for the appellants.

      John FT. Carlisle, for the respondent.
   Hardin, P. J.:

"When the sheriff exposed the premises for sale in the foreclosure proceedings the defendants and the plaintiff were present, and a question arose as to what passed _ under the foreclosure sale, aud it was claimed on the trial that the plaintiff assented to or acquiesced in the understanding that the personal property described in the complaint in this action should pass tó the defendants, who then became the purchasers. A question of fact was raised at the trial as to what took place on that occasion, as well as to the understanding that had^ been reached by the plaintiff and defendants prior to the time the bids were made. The questions of fact in that regard were submitted to the jury, there being a conflict in the evidence in regard thereto. Instructions given by the trial judge in respect to whether an estoppel existed were in accordance with the authorities. (Thompson v. Blanchard, 4 Comst. 303; Hibbard v. Stewart, 1 Hilt. 207; McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38; More v. Ins. Co., 130 id. 545.) Inasmuch as there was evidence given tending to support the contention of the appellants in that regard, although it was contradicted and other evidence was given by the defendants tending to show that no estoppel existed, we think the verdict of the jury in that regard should be accepted.

(2) On the trial certain articles of personal property were held as matter of law not to be fixtures, and no exception presents any question of error in that regard, nor was there any request to submit any question of fact in regard to those articles to the jury. We must, therefore, accept the conclusion reached at the Circuit. (Kirtz v. Peck, 113 N. Y. 222; Reynolds v. Miller, 79 Hun, 113.)

(3) The trial judge refused to rule, as matter of law, that the thirty store casks and forty puncheons or hogsheads were fixtures, and he left the questions relating thereto to the jury to determine, on all the facts of the case, after a careful statement of the law relating to the questions involved, and in so doing committed no error. In the course of his charge he stated that three things were necessary to be united to constitute property a fixture: First. Actual annexation to the realty, or something appertaining to it. Second. Application to tlie use or purpose to which the part of the real estate with which it is connected is appropriate. Third. The intention of the party making the annexation to make a permanent accession to the freehold; and he fully and properly explained the principles ol law applicable to the facts presented in regard to this branch of the case (McRea v. Central Nat. Bank, 66 N. Y. 489; Potter v. Cromwell, 40 id. 287; McFadden v. Allen, 134 id. 490),. and took the verdict of the jury upon the questions of fact involved in the controversy in regard to whether the articles in question, under .the circumstances, were fixtures or not. The rulings and the charge upon that subject were as favorable to the defendants as they were entitled. (Hart v. Sheldon, 34 Hun, 38.)

Appellants call our attention to Watts-Campbell Co. v. Yuengling (51 Hun, 302; S. C. affd., 125 N. Y. 1). By an examination of the opinion delivered by the court in General Term, and also the opinion in the Court of Appeals, it will be found that it was assumed as a matter of fact that the machinery forming the subject-matter of the action was intended by the owner of the fee at the time of making the contract, to become part and parcel of the freehold.” In the opinion delivered in the Court of Appeals it is said : The articles furnished by the plaintiff: were, in fact and in intention, annexed to the freehold, so as to become a part of it, and would, as between vendor and vendee, pass by deed of the premises, without special enumeration.” The cases are in harmony with the rule laid down by the trial judge in the case in hand.

Appellants call our attention to Bigler v. National Bank of Newburgh (26 Hun, 520). In that case the real estate mortgaged by its terms covered “ all buildings and improvements thereon situate and being.” The case is, therefore, distinguishable from the one before us.

In Miller v. Hart (32 Hun, 639) it was held that the words “ all appendages now used in and about said mill ” were used to indicate articles used in the mills but hot attached to and forming part of the same.” The case does not support the contention of the appellants.

The case of The Manufacturers’ National Bank v. Rober (19 Wkly. Dig. 477) turned largely upon “ the fact that the owner of the land so intended, the fixtures in question all go with, the land,” and some of them were so bulky that they could not be removed from the building without taking down a part of it. The case, therefore, differs from the one before us. Here there is some evidence' tending to indicate that the defendants had agreed with the plaintiff before and at the time of sale that an arrangement should be entered into between them, after they purchased the real estate, by which the property in question and the real estate should be put into a joint venture and operated by «them jointly. There was a contradiction of the evidence, however, and the question in that regal’d was proper for the jury.

(4) Attention has been given to the several exceptions taken upon the trial, and we find none of them present prejudicial error requiring an interference with the verdict of the jury.

After a careful charge, which both sides conceded was full and fair, and to which no exceptions were taken, the jury have, upon the vital questions of fact, pronounced, their verdict upon evidence conflicting to some extent as to all the important questions involved. We think the verdict should not be disturbed.

MjeRwiN, J., concurred; MartiN, J., dissented.

Judgment and order affirmed, with costs.


author: Herrick, J.:

text:
    Charles Kennedy, Appellant, v. James Farley, Respondent.

      Proof of a prima facie title to real estate —arbitration—a/i'bitrators’ award — ■ rights of one in the possession of real estate under a contract for the purchase of the same transferee of such rights — description of real estate — where the damages are agreed upon a judgment may be directed at G-eneral Term.

    The proof by the plaintiff, upon the trial of anaction brought to recover damages for trespass, of a deed to him of a lot of land, where his grantor was at the time of the execution of the deed in the possession of the property conveyed, is sufficient to establish a prima facie title to the premises.
    The submission to arbitration of the question, as to what was the true boundary line between two lots of land, and the award of the arbitrators under such submission, where both parties consent to the location of the line as established by the arbitrators, are sufficient to establish the boundary line between the two lots as to the parties to the submission, their heirs and privies.
    A person in the possession of real estate, under a contract to purchase the same, has rights in the property, equitable, if not legal; and where he transfers these rights to another his transferee is bound by all obligations that his grantor has imposed upon them.
    A deed of real property conveyed premises by the following description: “All that certain piece or parcel of land, etc., containing one hundred and sixty acres of land, more or less, and is the same land conveyed to the parties of the first part by William Jackson and wife by deed dated December 31st, 1878.”

      Held, that the amount of land conveyed thereby was limited by what William Jackson could and did convey in his conveyance to the party of the first part.
    When, upon-the trial of an action brought to recover damages for trespass, each party in the trial court requested the direction of a verdict upon the evidence, and the amount of damages was agreed upon between them, in case of a reversal of a judgment in favor of the defendant by the General Term, judgment may, in a proper case, be directed for the appellant for the amount of the damages so agreed upon, with costs.

      Appeal by the plaintiff, Charles Kennedy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 25th day of July, 1893, upon the dismissal of the complaint upon the merits directed by the court after a trial at the Essex Circuit before the court and a jm7-

      Hichard L. Sand, for the appellant.

      Francis A. Smith, for the respondent.
   Herrick, J.:

■ This is an'action against the defendant for trespass in entering upon what the plaintiff alleges to be his premises and cutting timber ■ therefrom.

The court directed a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff appeals to this court.

It appears that the plaintiff, in 1869, purchased a parcel of land known as lot No. 97 and entered into the' possession thereof, his-grantor, at the time of the execution of the deed, being in possession of the premises.

Adjoining the lot purchased by him was a lot in the possession of one "William Jackson. A controversy having arisen between them as to the boundary line between the two lots, in 1877, by a written agreement, they referred it to arbitrators to fix the line; the arbitrators, by a written instrument under their hands and seals, fixed and determined the line between the two lots, and provided that each of said parties should build tlieir respective share of the line fence on said line, and ‘provided that the fence theretofore built by the plaintiff might be removed to the line established by the arbitrators. Both parties consented to the location off the line as established by the arbitrators. Their award establishes the line of division between the two lots about four rods and eleven feet north of the fence erected by the plaintiff before that time.

The plaintiff had theretofore built and maintained the east half and Jackson the west half of the line fence between them. After the line was fixed by the arbitrators, the plaintiff moved the easterly ■ half of the fence northward to the new line; the westerly half remained in its old location. The opening thus caused by the east•erly part being removed and the westerly part remaining in its old location was closed by a short cross fence between the two. The ■fence remained in this position until 1881, when the defendant came into possession of the premises theretofore occupied by Jackson, and .shortly thereafter moved the westerly half of the fence up to the line established by the arbitrators, thus establishing a continuous fence between the two lots upon the line established in 1877.

In the spring of 1892 the defendant moved the west half of the fence four rods or more north of the arbitrators’ line, upon what -the plaintiff alleges to be his property, and cut the timber therefrom, which removal of the fence and cutting of timber constitutes the trespass complained of.

The proof hy the plaintiff of a deed to him of lot No. 97, Lis grantor being at the time of the execution of that deed in possession, I think is sufficient to establish at least a prima, facie title to said lot. The submission to arbitration of the question as to what was the true boundary line between his lot, No. 97, and the lot occupied hy Jackson, and the award of the arbitrators under such submission’was sufficient to establish that boundary line at least as between himself and Jackson and Jackson’s heirs and privies. (Vosburgh v. Teator, 32 N. Y. 561; Wood v. Lafayette, 46 id. 484.)

But the defendant claims that he is not hound by the act of Jackson ; that he is neither an heir of nor privy in estate to Jackson. He ■claims that Jackson was merely in possession of the premises under a contract to purchase, and that he derives his title, not through Jackson, but through parties who owned the fee of the land.

I have sonje doubts as to the legality of the evidence by which the nature of Jackson’s possession was proved, hut, assuming it to be properly admitted, it would appear that he was in possession of such property under a contract to purchase the same from one Mary L. G. Biddle, the owner thereof, and that at about the time of his ■death he owed a balance upon the purchase price of $405.

Whatever his rights may have been, he transferred them all by a quit-claim deed dated December 31, 1878, to the J. & J. Rogers Iron Company. In January, 1880, he died. On the 31st day of May, 1880, Mary L. C. Biddle executed a warranty deed to the J. & J. Rogers Iron Company of the same premises, describing them as being the same premises contracted by her to one William J ackson, and by said Jackson deeded to the party of the second part; and the J. & J. Rogers Iron Company, by a deed dated April 13, 1887,, deeded the premises to the defendant Earley.

Upon these facts the defendant claims that at that time Jackson was in possession of such premises; that Mary L. 0. Biddle was the owner in fee thereof, and that she conveyed such premises to the J. & J. Rogers Iron Company, and that the J. & J. Rogers Iron Company in turn conveyed to him, and that, therefore, he is not an heir or privy of William Jackson, and that William Jackson, being merely a contractor in possession, could not enter into any agreement of arbitration that would bind the legal owner.

At first blush his position would seem to be correct, but the real facts as disclosed here do not, I think, sustain the defendant’s-contention.

Jackson, being in possession of the premises under a contract to purchase the same, had rights equitable, if not legal, therein. Those-rights were transferred by him to the Rogers Iron Company, accompanied with all the obligations that he had imposed upon them; one of the rights that he undoubtedly possessed was to have a deed of the property upon paying the balance of the purchase price, and. shortly after his- death that deed appears to have been given by Mary L. 0. Biddle to his grantee, the Rogers Iron Company, the consideration therein expressed being considerably less than the testimony shows was the balance due by Jackson shortly beforé or at the time of his death.

In that deed the contract between Mary L. 0. Biddle and Jackson is expressly referred to; thus the Rogers Iron Company by these-two deeds became possessed of the equitable interest of William Jackson and of the legal estate that he was to receive under his contract upon the payment- of the purchase price of said premises.

I am strongly inclined to think that the Rogers Iron Company took the premises subject to all estoppels and conditions that Jackson himself was subject to, and took no more than Jackson could have conveyed had he received a deed in fee pursuant to his contract with Mary L. 0. Biddle. However, this latter proposition is perhaps not necessary to be determined for the purpose of deciding this case.

As we have heretofore seen, Jackson was bound by the articles of arbitration, and, by the award of the arbitrators, all that he could convey was the lot whose boundary was established by said arbitrators.

The quit-claim deed -that he gave to the Rogers Iron Company did and could convey no premises north of the boundary line described in the award. That is all the estate that the Rogers Iron Company derived from William Jackson, and that is the estate, and all the estate, that was conveyed to the defendant; whatever interest the Rogers Iron Company had in the premises, it limited its conveyance thereof by what it received from Jackson; for in the deed of the Rogers Iron Company to the defendant the premises conveyed to the defendant were described as follows: All that certain .piece or parcel of land, etc., containing one hundred and sixty acres of land, more or less, and is the same land conveyed to the parties of the first part by William Jackson cmd wife, by deed dated December 31st, 18J8.”

The only title that the defendant has is through this deed, and he is concluded by its terms; his chain of title goes direct to William Jackson, and the amount of land that he received and its boundaries is limited by what Jackson could and did convey in his conveyance to the Rogers Iron Company.

It follows from this that he was not entitled to move the fence and enter upon the premises in dispute, or to cut timber therefrom; and that his acts in so doing were trespasses.

Each party in the court below having requested the court to direct a verdict upon the evidence, and the damages being agreed upon at twenty dollars, the judgment is reversed and judgment directed for the plaintiff for twenty dollars, with costs and the costs of this appeal.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed and judgment directed for the plaintiff for twenty dollars, with costs and disbursements of this appeal.


text:
    Ambrose Best, Respondent, v. Levi Zeh, Individually and as Executor, etc., of Julia Best, Deceased, Appellant, Impleaded with Others.

      of partition — tihe validity of a will determined therein — dw’ess — parties thereto— Code of Civil Procedure, §§ 1537-1543.
    the provisions oí section 1537 of the Code of Civil Procedure the plaintiff, in an action of partition, is permitted to bring into such action a cause of action to set aside the will of the former owner of the property sought to be partitioned, and he can unite with it other causes of action arising out of the same transactions, when the acts which give rise to such other causes of action create liens upon such real estate, if they be not declared invalid.
    Where the claim of the plaintiff is'that the execution and delivery of a will and of several mortgages given by the testator upon certain real estate, were all procured on one and the same day in pursuance of a scheme fraudulently designed and carried out,by undue and improper influence exercised upon an imbecile, sick and infirm old man, incompetent to manage his affairs, and not understanding the nature of such transactions, for the purpose of securing and appropriating all his property to the use and benefit of the persons exercising such undue and improper influence, equity will intervene to prevent a multiplicity of suits, and having acquired jurisdiction of the action for partition will afford as far as possible complete relief, and determine the conflicting claims to the title or possession of the real property in question.
    In an action brought for the partition of real property, not only a person who actually has a lien upon or interest in the property in question, but one who apparently has, or claims to have, a lien or interest in the entire property sought to be partitioned, may be made a party to the action under the provisions of sections 1537 to 1543, inclusive, of the Code of Civil Procedure. The several provisions of such sections indicate an intention on the part of the Legislature to authorize the making of parties to an action for partition of all persons having or claiming to have an interest in or lien upon the real estate in question-, and to authorize the hearing and determination of such conflicting interests in such action, so that, when the real estate in question is divided or sold, all clouds upon the title thereof may be removed.
    Appeal by the defendant, Levi Zeb, individually and as executor, etc., of Julia Best, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 11th day of April, 1894, upon the decision of the court rendered at the Columbia Special Term overruling the defendant’s demurrer to the complaint, and also from the order entered in said clerk’s on the 11th day of April, 1894, overruling the demurrer to the complaint and directing judgment accordingly.

      A. y. ¡S. Cochrane, for the appellant.

      A. Frank B. Chace for the respondent.
   Herrick, J.:

The plaintiff in his complaint, by appropriate allegations, in substance alleges that one Henry Best, deceased, was in his lifetime ..and at the time of his death the owner of several parcels of real estate, which he describes in the complaint, located in the county of Columbia. That,on the 3d day of June, 1891, he executed what purported to be his last will and testament, whereby he gave and bequeathed all his property, both real and personal, to his sister, Emma Zeh, wife of the defendant Levi Zeh, and appointed Emma Zeh executrix of said last will and testament.

That' the said Henry Best had an aged sister named Julia Best, who on the 6th day of January, 1891, executed her last will and testament, whereby she gave and bequeathed to her sister, the defendant Emma Zeh, all her property, both real and personal, and appointed the defendant Levi Zeh, the husband of the said Emma .Zeh, executor of her last will and testament.

It is further alleged that at the time Henry Best executed his last will and testament, and the mortgage hereinafter referred to, the said Julia Best was in feeble health and condition, weak both mentally and physically, and was expected to live but a short time.

The plaintiff further alleges that on the 3d day of June, 1891, and at the same time the last will and testament of Henry Best was signed, he executed and acknowledged several other instruments in writing dated that day, one purporting to be a mortgage of and upon all the real estate described in the complaint to the said Julia Best, and another instrument dated the same day purporting to be & second or subsequent mortgage of and upon all the real estate described in the complaint to the defendant Levi Zeh; the execution of other instruments in -writing conveying property is also alleged, but none of them relate to the real estate described in the complaint.

Henry Best died on or about Hay 9, 1892, and Julia Best on or about June 28, 1892.

The plaintiff further charges that the. said Henry Best, at the time of the execution of what purports to be his last will and testament, and what purport to be mortgages as above mentioned, was, and for a considerable time prior thereto had been, an imbecile, aged, infirm, sick, both physically and mentally weak and diseased, of feeble mind, incapable of governing himself or managing his affairs, and by reason thereof incapable and incompetent to make, execute, acknowledge or deliver such instruments, or either or any of them, and that at the time he signed, acknowledged and delivered suclx several instruments he had not sufficient mind to comprehend and understand the nature of such transactions or the matters connected therewith, and did not understand the same; and that the execution thereof was obtained and procured by fraud, imposition and undue influence ; and that the said several mortgages were given by the said Henry Best without any just, valid or legal consideration.

That the said Levi Zeh and Emma Zeh had each of them acquired such an undue influence over the said Henry Best as to exercise entire control of his mind and of his business matters and affairs, and that while he was so enfeebled and weak in body and mind, as above described, he was unduly, fraudulently and improperly influenced by the defendants, Levi Zeh and Emma Zeh, or one of them, or by other persons unknown to the plaintiff, acting for them and in their interest, to make and execute the instruments purporting to be his last will and testament, and purporting to be mortgages.

That neither of such instruments purporting to be mortgages were recorded in the lifetime of Henry Best, but that the existence thereof was fraudulently suppressed and concealed as part of the fraudulent scheme entered into by the defendants, Levi Zeh and Emma Zeh, or others acting for them and in their interest, to obtain by and through such instruments, at the death of Henry Best and Julia Best, the title to all the property of the said Henry Best for the use and enjoyment of the defendants, Levi Zeh and his wife, Emma Zeh.

The complaint then sets forth by name the several heirs of Henry Best, so far as known, and their interests in the property, and asks that such instrument purporting to be the last will and testament of Henry Best, and the instruments purporting to be mortgages of the real estate described in the complaint, be declared void and invalid and of no effect; that the same be set aside and canceled of record,, and asks for judgment directing a partition of the property described in the complaint, and, if no actual partition can be had, that the same be sold and the proceeds divided among the parties interested therein, according to their respective rights and interests.

The defendant Levi Zeh interposed two demurrers, one in his own behalf, and one as executor of the last will and testament of Julia Best, on the grounds that the complaint on the face thereof does not state facts sufficient to constitute a cause of action against the defendant demurring, and that causes of action have been improperly united in the complaint.

As to the second ground of demurrer, that causes of action have-been improperly joined, the defendant specifies in substance as follows : That the complaint alleges a cause of action against the heirs-at law of Henry Best, deceased, for the partition of real estate owned by him at the time of his death, and alleges an apparent devise of said real estate to the defendant Emma Zeh, and that such apparent devise is void, and that it also contains an alleged cause of action against Levi Zeh, as executor of the last will and testament of Julia Best, deceased, to have a certain bond and mortgage executed by the said Henry Best to the said Julia Best, covering such real estate, declared null and void. It also sets forth an alleged cause of action against Levi Zeh individually, who is not an heir at law of the said Henry Best, deceased, to have a certain bond and mortgage executed by the said Henry Best to Levi Zeh, covering the said real estate, declared null and void.

Said demurrers were each overruled and judgments entered thereon in favor of the plaintiff and against the defendant Levi Zeh. From the judgments so entered the defendant Levi Zeh appeals to this court. I think the judgment should be affirmed.

Hnder section 1537 of the Code of Civil Procedure a person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstandjng an apparent devise thereof to another by the decedent, and possession under such a devise. But in such an action the plaintiff must allege and establish that the apparent devise is void.”

The plaintiff commenced his action in partition by virtue of the provisions of that section, and alleges that the devise of the real •estate in question is void.

Except for the provisions of section 1537 his allegations as to the execution of the will would constitute a separate and distinct cause .of action, which he would have to maintain before he could have his action in partition. Conceding that his allegation as to the two mortgages, and his demand to have them declared void, to be each separate and distinct causes of action, they arise out of the same transactions as the will.

And being permitted under said section to bring into his action •of partition the cause of action to set the will aside, I do not see why he cannot unite with it other causes of action arising out of the same transactions, the acts which give rise to such other causes of action constituting liens upon all the real estate sought to be partitioned, if they are not declared invalid.

To fully establish all the rights that the plaintiff and his co-heirs have in the real estate in question, it is necessary to determine not only the validity of the will, but also the validity of the mortgages, and I do not think the plaintiff should be compelled to bring a separate action upon each instrument.

The claim of the plaintiff is that the execution and delivery of the will and of the several mortgages were all procured in pursuance of a scheme, fraudulently designed and carried out, by undue and improper influence, exercised upon an imbecile, sick and infirm old man, incompetent to manage his affairs, and not understanding the nature of the transactions in question, for the purpose of securing and appropriating all his property to their own use and benefit.

That in effect constitutes one charge and one cause of action, although composed of several distinct and separate acts, and the establishing and maintaining of that one cause of action clears away all the clouds upon the title to this real estate created by the several instruments executed in pursuance of the fraudulent scheme alleged in the complaint.

"While the records disclose a devise to onlv one of the defendants Zell, together with a mortgage to that same one, and a separate and distinct mortgage to her husband, thus apparently giving him a separate and distinct interest in such real estate which would constitute a separate and distinct cause of action, yet the allegations of the complaint charge a common interest in the securing and execution of said will and said mortgages in pursuance of a common scheme, so that instead of the defendant Levi Zeh having no interest in the cause of action to set aside the mortgage given to his wife, Emma Zeh, and Emma Zeh having no interest in the proceedings to set aside the mortgage executed to her husband, Levi Zeh, each is, in fact, charged by the complaint with having an interest in and being a - party to both mortgages and the will, and of being interested in procuring the execution thereof.

The action is one in equity, and equity tries to - prevent a multiplicity of suits, and where the court has once acquired jurisdiction it tries to afford complete relief, even to the determination of conflicting claims to the title or possession of real property. (Weston v. Stoddard, 137 N. Y. 119-124.)

Here all claims to the possession of or lien upon the property in question by the defendants, Levi Zeh and Emma Zeh, can be determined in this action by an investigation and determination of the truth as to what took place on the 3d day of June, 1891, when Henry Best executed what purports to be his last will and testament, and what purport to be the mortgages executed to Levi Zeh and Emma Zeh. His mental and physical condition at that time, and the influence exerted upon him by said defendants, are the questions in issue, and in the determination of such questions the defendants, Levi Zeh and Emma Zeh, have a common interest. They, in fact, constitute one party to such issues, and the plaintiff and his co-heirs the other party. And for the purpose of clearing the title to the property in question and to prevent a multiplicity of actions, all of such questions should be permitted to be determined in one action.

In addition, it seems to me that the defendant Levi Zeh can oe made a party to the action under section 1539 of the Code of Civil Procedure. That plaintiff may, at his election, make a tenant by the curtesy, for life or for years of the entire property, * * * or a creditor or other person having a lien or interest, which attaches to the entire property, a defendant in the action.”

Under that provision of the Code it is my opinion that not only a person who actually has a lien or interest, but one who apparently has or claims to have a lien or interest upon the entire property-sought to be partitioned may be made a party.

It seems to me that the several provisions of the Code from 1537 to 1513, inclusive, indicate an intention on the part of the Legislature to authorize all persons having or claiming to have an interest in or lien upon real estate to be made parties to actions in partition, and to authorize the hearing and determination of such conflicting interests in such actions, so that when the real estate involved is divided or sold, all clouds upon the title thereof may be removed and the title thereto settled.

Let the judgment be affirmed, with costs.

Putnam, L, concurred; Mayham, P. J., concurred in the result.

Judgment affirmed, with costs.


author: Herrick, J. :

text:
    William D. MacFarlane, Appellant, v. Robert F. MacFarlane and Others, Respondents.

      Joint devisees and legatees of real estate and of the business transacted thereon — when they become co-partners- — real estate treated as apa/i't of the co-pa/rtnership assets.

    The mere fact of a bequest by will, to two persons, of certain real estate and of the business transacted by the testator thereon, does not constitute such persons partners; it merely makes them joint owners; but their-election to continue the business, each contributing thereto his share of the property bequeathed to him, renders the relation between them that of co-partners and the property-co-partnership property.
    Beal estate used in the business of a co-partnership, although the title thereto is in the name of the individual members of the co-partnership, may be just as much co-partnership property as personal property, and for all co-partnership purposes is treated as personalty, and not until the co-partnership creditors are paid and the interests of the co-partners adjusted does it resume its character of real estate. In the absence of any accounting between the co-partners or adjustment of the co-partnership accounts the real estate cannot be separated from the rest of the co-partnership property and made the subject of a separate action in partition to divide the same or the proceeds thereof between the parties.
    Appeal by the plaintiff, William D. MacFarlane, from a judgment of the Supreme Court in favor of the defendants, entered in. the office of the clerk of the county of Albany on the 6th day of June, 1894, upon the report of a referee, with notice of an intention to bring up for review on such appeal the report of the referee and the exceptions thereto, and an order entered in said clerk’s office on‘ the 4th day of June, 1894, confirming the said referee’s report.

      Jerome W. Eche* and Henry G. Hevitt, for the appellant.
    John. F. MonUgnani, for the respondents.
   Herrick, J. :

Robert MacFarlane, the father of the parties to this action, for many years carried on the business of dyeing at No. 24 Norton street, in the city of Albany; he died on the 20th day of December, 1885, leaving a last will and testament, the second, third and sixth clauses of which read as follows: “2d. I do hereby give and bequeath to my beloved wife Annie, the sum of seven hundred dollars annually, to be paid in monthly or quarterly installments during the term of her natural life. 3d. I give and bequeath to my two sons, Robert F. and William D. MacFarlane, my house and property No. 24 Norton st., Albany, N. Y., with all the implements, mechanism and fixtures, and interest connected with and in the dyeing and scouring business, to be inherited equally, share and share alike. 6th. My wife’s annuity shall be obtained from the rents of my houses,'and if these are not enough, the remainder shall be made up by my sons from the proceeds of the dyeing and scouring business.”

In July, 1892, the plaintiff commenced an action for a partition of the premises No. 24 Norton street; issue being joined, the action was referred to a referee to hear and determine. The referee, among other things, found that the plaintiff and the defendant Robert F. MacFarlane were co-partners, and as such co-partners, were the owners of No. 24 Norton street, and the business, good will, implements, fixtures and interests connected with and in the dyeing and scouring business formerly belonging to and carried on by Robert MacFarlane, deceased.

The referee dismissed the plaintiff’s complaint, and from the judgment entered upon his report the plaintiff appeals to this court.

I think the judgment should be affirmed.

The two sons, Robert F. MacFarlane and William D. MacFarlane, upon the death of their father entered into possession of the premises No. 24 Norton street, and continued the business that had been conducted by him in his lifetime, dividing the profits thereof equally between them, until about July 18, 1890, when an arrangement was made between them by which the business was to be conducted under the sole management of William D. MacFarlane, he to receive two-thirds of the profits thereof, and the remaining one-third to be paid to Robert F. MacFarlane.

That arrangement continued down to the time of the commence-' ment of this action; there has never been any accounting or settlement of the business between them. The taxes, assessments, insurance and other charges upon the real estate No. 24 Norton street were paid out of the proceeds of the business and charged to the expense account of said business.

A portion of the annuity of the widow of Robert MacFarlane, deceased, was annually paid out of such business.

The plaintiff, in his testimony, speaks of the business there carried on as co-partnership business.

Although it does not appear from the case that there was any specific agreement, either oral or written, entered into between them, it seems to me that from the manner that they received the real estate in question, with the apparatus, machinery, and appliances thereon, the evident intention of the test&tor, as evidenced by the sixth clause of his will, that they should continue the business as theretofore carried on by him; and the fact that they thereafter carried on said business together, dividing the profits thereof equally between them, constitutes in fact and in law a co-partnership as completely as if written articles of co-partnership between them had been signed.

The mere fact of the bequest to them by will of the real estate in question and of the business did not constitute them partners, but merely made them joint owners; but their election to continue the business, each contributing thereto his share of the property so bequeathed to him, rendered the relations between them that of co-partners and the property co-partnership property.

Real estate used in the business of a co-partnership, although the right and title are in the name of the individual members of the co-partnership, may be just as much co-partnership property as personal property, and for all co-partnership purposes the payment of debts and the adjustment of accounts between the co-partners themselves, is treated as personal property.

When purchased by partnership funds to be used in the partnership business, and actually appropriated to and used in the partnership business, it becomes co-partnership property, although the real title be in the names of the individual members of such co-partnership or of one of them. (Am. & Eng. Ency. of Law, 944, et seq.; Hiscock v. Phelps, 49 N. Y. 97; Fairchild v. Fairchild, 64 id. 471; Greenwood v. Marvin, 111 id. 423.)

Co-partners pan contribute an interest -in real estate to the capital stock of a co-partnership, as well as money or other personal propersy, and being^so contributed, it becomes a part of the co-partnership assets.

At the moment of their father’s death William and Robert MacFarlane became joint owners of the real estate in question, and by electing to carry on the business together, using such real estate for the business, it was a contribution by each of his interest in such real estate to the co-partnership, and rendered it co-partnership property.

Again, the bequest to them was of the real estate, implements, mechanism and fixtures, together with the business as a whole; they were bound together, and the plaintiff elected to so treat them for a number of years, treating the real estate as much a part of the co-partnership property as any other of the property or business bequeathed to him.

The evident intention of the testator, coupled with the acquiescence therein of the legatees and their conduct in relation to such real estate for a series of years, renders such real estate co-partnership property. (Jackson v. Jackson, 9 Ves. 591; Waterer v. Waterer, 15 Eq. 412.) As co-partnership property it is personalty, and not until the co-partnership creditors are paid and the interests of the co-partners adjusted does it resume its character of real estate. (Fairchild v. Fairchild, supra ; Greenwood v. Marvin, supra.)

Being a part of the partnership property and assets it cannot, in • the absence of any accounting between the co-partners or adjustment of the co-partnership accounts, be separated from the rest of the co-partnership property and made the subject of a separate action to divide the same or the proceeds thereof between the parties.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.