author: Dube, J.

text:
    The People, ex relat. L. Tappan v. Rose Porter, alias Cooper.
    A judge of the Superior Court, in allowing a habeas corpus, and in his proceedings under it, can only exercise the powers which Were conferred by statute upon a Supreme Court Commissioner. He is, therefore, not clothed with the discretionary powers of a judge in equity, in relation to the disposition and custody of infants.
    The Supreme Court, as succeeding to the entire jurisdiction of the Court of Chancery, is the general guardian of infants.
    As such, it has an exclusive right to determine all questions relating to their disposition and custody, except where those questions arise in a suit for an absolute or limited divorce.
    ,The equitable powers of the Superior Court can only be exercised in those actions and proceedings which its jurisdiction, as defined by the Code, properly embraces.
    A petition for a habeas corpus, addressed to a judge of the Superior Court, can only be founded upon the provisions of the general Habeas Corpus Act (2 R. S., § 1, art. 2, p. 183).
    Hence the judge can only act in the cases which the statute enumerates, and can make no other final order or determination than that which the statute prescribes.
    The reported cases in England are inapplicable. In all of those, .the habeas corpus was a common law, not the statutory writ.
    Distinctions between a common law and the statutory habeas corpus stated and explained. Critical examination of the adjudged cases in England and in this State.
    Conclusions from this examination:—
    1. That the basis of the common law, as well as of the statutory writ, is an illegal imprisonment or restraint, and, consequently, that when the restraint is disproved the jurisdiction ceases.
    2. That when the restraint is adjudged to be illegal, the only order that can properly be made, is to discharge the person imprisoned or restrained.
    And lastly, That the exception of infants, of such tender years as to be incapable of making a,choice, is more apparent than real
    The Habeas Corpus Act, in its revised form, is greatly enlarged in its provisions, and improved in its details; but its sole basis still is, an illegal imprisonment or restraint, and the only authority of an officer acting under it, to discharge, bail, or remand the person on whose behalf the habeas corpus is issued.

      (Before Doer, J.)
    May, 1853.
    It appearing, in this case, that the child, on whose behalf the writ was issued, was not restrained of her liberty, held, that the judge could only declare that she was at liberty to go where she pleased, and could make no order for her delivery to her father.
    This was .a proceeding upon a habeas corpus, before Mr. Justice Dube. The object of the. writ was to deliver an infant, aged about nine years, named Jane Trainer, from an illegal detention and. restraint, in which it was alleged that she was held by the respondent, to whom the writ was directed. It was founded upon a petition, sworn to by Lewis Tappan, claiming to be the agent of the father of the child, Charles W. Trainer, and was allowed upon the 18th May, 1853.

    On the 23d of May the child was bought before the judge, and the respondent filed a sworn return to the writ, alleging, inter alia, as follows: “ That the said Jane Trainer is not imprisoned, detained, or restrained of her liberty, or held in any custody against her will, by or under the control or direction of this respondent, or otherwise, but remains with the respon-' dent of the free will of the said Jane, and from affection to the respondent.” It was proved, to the satisfaction of the judge, that Trainer was the lawful father of the child, but, by his own * confession, was a person of licentious and dissolute habits. It also appeared, that the respondent, to whom the child had once belonged as a slave, was a woman of ill-fame. The child, on being examined by the J udge, was unwilling to acknowledge Trainer as her father, and entreated to be permitted to remain with the respondent, to whom she was evidently attached.
    The case was heard and argued on the 25th and 26th of May.

      E. D. Culver, for the relator.

      James T. Brady, for the respondent.

       There • had been a previous writ, founded upon .a petition, stating that the infant (a colored child) had been kidnapped by Mrs. P., and was detained by her as a slave. This allegation appearing to be groundless, this writ had been dismissed.

   On the 28th, the J udge delivered the following opinion :

Dube, J.

Having dismissed as groundless the original charge of kidnapping, this case is now before me solely upon the petition of the father, by his agent, Hr. Tappan, and the relief which is now sought is a compulsory order for the delivery of the child, Jane Trainer, into his custody. The first and by far the most important question to be determined is, whether my jurisdiction, which is precisely the same as that conferred by statute on Supreme Court Commissioners, extends so far as to enable me to make the order that is required ;.and if this question must be answered in the negative, it will be needless to inquire whether, upon the evidence before me, such an order could be justly or discreetly made.

I entirely agree with the learned counsel for the respondent, that I am not sitting here as a judge in equity, clothed with those large discretionary powers, in relation to the disposition and custody of infants, which the Lord Chancellor of England, as the representative of the sovereign, is competent and has been long accustomed to exercise.

Powers just as extensive, I doubt not, were vested in our late Court of Chancery, and if so, by forcé of the Hew Constitution and of the Judiciary Act of 1817, they have been transferred to, and are now vested in, the Supreme Court of the State, and the justices thereof; but they do not belong to me, either as a Supreme Court Commissioner, or as a judge of the -Superior Court; I cannot therefore exercise the discretion which they confer, even could I be justified in acting, at the same time and in the same proceeding, in a double capacity. The Supreme Court, as succeeding to the entire jurisdiction of the chancellor, is the general guardian of infants, and as such, has the exclusive right to determine all questions, in relation to their disposition and custody, except where those questions properly arise in an action between husband and wife, for an absolute or limited divorce. It is true, that the Superior Court is now a court of equity; but it is equally so, that its equitable powers can only be exércised in those actions or proceedings which its jurisdiction, as defined by the Code, may be construed to embrace.

The petition for the habeas corpus, in the present case, was founded, and could only be founded, upon the provisions of the Revised Statutes; and as, in its form, it followed the words of the statute, those provisions not merely gave me the right, hut made it my duty, to allow the writ. It is under the statute, therefore, that I am acting, and it is upon the just construction of its provisions that the nature and extent of my authority alone depend. I can act only in the cases which the statute enumerates and defines, and can make no other final determination or order than that which it prescribes.

Founding his argument upon the statute, the counsel for the respondent has insisted: '

First. That a habeas corpus under the statute can only be allowed for the purpose of delivering the person, in whose behalf it is prayed for, from an illegal or unjust imprisonment or restraint, and, consequently, ‘when the alleged imprisonment or restraint is denied by the return to the writ, and is not established by the proof, the jurisdiction of the judge or officer who issued the writ wholly ceases, and he is bound to declare that the proceedings before him are at an end. And,

Secondly. That where the imprisonment or restraint is admitted or proved, and is held to be illegal, the only order that can be made, is for the discharge of the person so imprisoned or restrained; and that an order, even in the case of a minor or apprentice, relative to his future disposition or custody, as an excess of authority, would be absolutely void.

If the positions thus taken by the counsel are a just construction of the statute, it is a necessary consequence, that I cannot grant' to the relator the relief which he seeks, by a peremptory order for the immediate delivery of the child into his custody, or into that of the father. If a habeas corpus under the statute may be properly used for the sole purpose of maintaining the rights of a- parent and enforcing the obedience of a child, the order which is prayed for may justly be made; but not, if the sole object of the writ, in a case like the present, is the delivery of the child from imprisonment or restraint.

The learned counsel for the relator, in controverting the positions that have been stated, deemed it unnecessary to refer to the actual provisions of the statute, but contended that the questions that have been raised as to their construction, and the extent of the authority which they confer, can no longer be regarded as open. He insisted that it is settled law—settled by a long series of decisions both in England and in the United States—that an officer, acting under the statute, possesses in its fullest extent the jurisdiction which is denied, and that, the rights of the father being established, not merely have I the power, but am bound to make the order which he solicits. These views of the learned counsel, I am inclined to think, correspond with what has hitherto been the general understanding of the bar; and I freely own, that, when the proceedings commenced, I had no doubt of my authority to make such an order for the custody of the child, as, under all the circumstances of the case, I might deem to be expedient. I believed myself to possess exactly the same discretion as a court of equity, and this discretion, looking to the future welfare of the child, I was not merely willing, but desirous, to exercise. Having examined the subject, however, in the short intervals of leisure that have been allowed me since the case was opened, with all the attention of which I am capable, I am obliged to declare, that the conclusions to which I have been led are directly opposed to my preconceived opinion. The words of the statute, I am forced to say, allow no room for the exercise of a discretionary power, nor, as I am now persuaded, is any reported case to be found, in which such a construction has been given to them.

The-adjudged cases in the English courts, whatever surprise the assertion may create, are in reality wholly inapplicable; they are inapplicable for the conclusive reason, that, in all of them, without an exception, the habeas corpus was a common law, and not the statutory writ, and the powers exercised by the court those whibh the common law, and not the statute, confers. Upon the question, therefore, that we are now considering, the power and duties of an officer, confined in his jurisdiction and in his actions by the provisions of the statute, these cases, in my judgment, throw no light whatever, and, at any rate, lend no aid to the argument on the part of the relator. The English habeas corpus Act, the celebrated act of Charles H., the second Magna Charta, as it is termed by Blackstone—is the substratum and model of our own statute, and there is not a shadow of evidence that any court or judge, when acting under its provisions, has ever claimed to exercise a discretionary ' power, by making any other order for the disposition óf the person for whose deliverance the writ was issued than those which the words of the act specify and define. The act declares what judgment, according to the circumstances of the case, shall be pronounced at the close of the proceedings, and there is no evidence that any other has ever been given. The habeas corpus act was not framed to regulate the entire subject of which it treats. Its sole objects were to remedy particular abuses, and to relieve a particular class of persons, namely, those committed and imprisoned upon a criminal charge, leaving all other cases of unjust imprisonment or detention, in the words of Blackstone, “ to the habeas corpus at common law.” (3 Common., pp. 137, 138.) Nor is this the only distinction between the common law and the statutory, writ; there are many others, so material, that had they not been overlooked, the erroneous practice which has to some extent prevailed in this State, and which I am urged to follow, could never have arisen.

The common law writ can only be granted upon a motion in court, and whether it shall be granted or refused rests in the discretion of the court (Com. Dig. Tit. H. Corpus [3], pp. 56, 65; 3 Black. Com. 132, 5; Bac. Abrid. Tit. Ha. Cor. [B], 4).

The statutory writ may be granted by a judge in vacation, and must be granted if the application is in the form which the statute prescribes. It is then granted ex débito justítice, and the officer, who refuses to allow it, is subject to a penalty.

The common law writ, it appears from the cases, may be prosecuted by a husband, a parent, and a guardian, for the deliverance of a wfife, a child, or a ward.

The statutory writ is prosecuted by the party for whose deliverance it is issued. The petition, it is true, may be signed by a third person on his behalf; but it is in the name of the prisoner that all the proceedings must regularly be conducted.

Lastly. The common law habeas corpus ad subjiciend/win, requires that the person named shall be brought before the court in which it is returnable, “ to do, submit to, and receive” whatever the court may consider in relation to him. - 3 Black. Comm. 132.

The statutory writ is substantially in the same form, but the discretion which its general words may be construed to give, is * taken away by the positive direction, that when the proceedings are closed, the judgment shall be that the prisoner “be discharged, or bailed, or remanded.” There are other differences, to which it would be useless to advert. It is sufficient to say, what no lawyer will deny, that however large the discretion which the common law may give, either in granting a habeas corpus, or pronouncing judgment upon its return, the same discretion can never be rightfully claimed by an officer acting under a positive law, unless the intention of the Legislature that it may be exercised is expressly or impliedly declared. Hence it is upon the true construction of the statute under which I am acting, that this case wholly turns, and it is only those cases which plainly bear upon this question that can have any application.

But I go still further. Were I at liberty to treat the present as a common law writ, and in pronouncing my judgment to assume the powers, not indeed of the Chancellor, but of a common law court, it is at least exceedingly doubtful, whether I would be justified in making the order that is now desired. Unless I greatly err, the law in England, with a single exception, which I shall hereafter state, is now established, that the jurisdiction of the Queen’s Bench and of the Common Pleas upon the return of a habeas corpus, even when the case is not under the statute, is limited to the discharge of the person where detention or restraint is held to be illegal; and where the restraint is disproved, to a public declaration that he is at liberty to go where he may please, and will be protected by the court in the exercise of his freedom.

The earliest case I shall quote is Rex v. Clarkson (1 Strange, 446). The habeas corpus, returnable in the King’s Bench, was granted upon the application of a husband, and its object was the restoration of his wife to his society and possession. The lady, however, when brought before the court, denied the rights of the person who claimed, to be her husband, and the court ¿aid, that whatever might be his rights, they could make no compulsory order, but could only see that'she was under no illegal restraint, and declare her at liberty to go where she pleased.

In the next case, Rex v. Johnson (1 Strange, 579), the action of the court was somewhat different; the contest related to the custody of a female infant, aged 9 years, and the court, at first, ■doubted whether they could do more than release her from an illegal restraint, but finally made an order for her delivery to her guardian.

. In the succeeding year, however, the Court of King’s Bench retraced its steps, and returned to its original doctrine, Rex v. Smith (2 Strange, 982). The habeas corpus was granted upon the application of a father, who sought to reclaim a minor child, a boy of 13, from the custody of an aunt, with whom he was living. When the parties were before the court, the legal right of the father to the custody being clear, it was insisted that he was entitled to a positive order for the delivery of the child, and the decision in Rex v. Johnson was relied on as a controlling authority. That case, however, the report says, upon full debate, was overruled, and the court said that they could only deliver the child from the control of the aunt, and inform him that he was at liberty to go where he pleased. The boy chose to remain with the aunt, and the court then told the father that he must seek his remedy by action or by some other proceeding.

I have found no case contradicting this limited construction of the powers of the court until the time of Lord Mansfield; but in several cases which carne before his lordship and his brethren, it seems to have been intentionally disregarded and overruled. In the cases to which I refer, the doctrine is laid down or assumed, that, upon a habeas corpus, the court has a full discretion to make such an order as the particular circumstances of the case may seem to require, and may not only decide to whom the custody of an infant shall be given, but may even compel a reluctant wife to return to the house and submit to the authority of her husband (Rex v. Meade, 1 Burr. 542; Rex v. Delaval, 3 Burr. 1434, S. C.; 1 Black, 146; Ward’s case, 1 Black; Blisset’s case, Lofft’s R. 765). But this doctrine, which, if it did not strip the Chancellor of his jurisdiction, vested in the King’s Bench, in the cases to which it applied, a co-ordinate authority, seems not long to have prevailed, and assuredly is not, at this day, the law in England. It was most distinctly rejected by Lord Kenyon and his associate judges in the cases of Rex v. Reynolds (6 Term R. 499), and The King v. Edwards (7 Term R. 745).

In each of these cases the habeas corpus was granted upon the application of a master, who sought, by this means, to compel the return of a disobedient apprentice, but in each the writ was quashed, as it appeared to have been issued without the consent and against the wishes of the apprentice; and Lord Kenyon remarked in the second case, that the sole object of a habeas corpus “ is the protection of the liberty of the party,” in other words, his deliverance from an illegal imprisonment or restraint; evidently meaning that where this fact is shown not to exist, the jurisdiction ceases.

The cases to which I shall next refer are still more decisive, as showing how entirely the courts of common law in England have renounced the exercise of the discretion which was claimed by Lord Mansfield.

In the case of The King v. De Mandeville (5 East, 220), the writ was granted on the application of a mother, who had been driven by ill usage to separate from her husband, and w'ho sought the aid of the court to compel him to restore to her custody an infant of only eight months old, which it was alleged he was about to take with him from the kingdom. The additional circumstances were that the child was a natural born subject and the father an alien enemy. The Court of King’s Bench, however, denied the application, and remanded the child to the father, plainly upon the ground that he had a legal -right to the custody, and consequently that the restraint could not be pronounced illegal.

The failure of this application compelled the mother to invoke the powers of the Chancellor (De Mandeville v. De Mandeville, 10 Vesey, 52); and although Lord Eldon declined, under all the circumstances, to change the custody, he enjoined the father from removing the child from the kingdom, and compelled him to give security to a large amount, that he would obey the injunction. In the course of his opinion, Lord Eldon referred to the former proceedings at law, and said that the court of King’s Bench had very properly declined to interfere, not having within it any of that species of delegated authority which resides in the Chancellor, as representing the King m his beneficent character of Pa/rens Patriae.

This profound jurist, the greatest common as well as equity lawyer of his age, evidently meant that a court of common law, even upon a habeas corpus, can pass only upon the question of legal right, and has no power to grant that equitable relief which the Court of Chancery, as the general guardian and protector of infants, is bound to administer.

The next, ex parte /Skinner, 9 J. B. Moore, 278, in the court of Common Pleas, was a strong case indeed. In this also, the habeas corpus was granted on the petitioú of a mother who sought to rescue an infant child from the custody of it's depraved father, who had not only deserted the mother, hut who was then living in open adultery with another woman. The authority of Lord Mansfield in PisselVs case, Lofft’s Rep. 748, was strongly pressed upon the court, but was in effect overruled, and the judges, referring to the language and adopting the doctrine of Lord Eldon in De Mandeville v. De Mandeville, denied the application, declaring that the Chancellor was álone competent, by a proper change of the custody, to grant the necessary relief. The most recent case in England is ex parte Sandilands, which is reported in the last volume of that very useful and well selected compilation of law and equity casee, which is now in course of publication at Boston (12 Law and Equi. Rep. p. 463, S, C. 21, Law Jour. Rep. p. 326); and it affords a striking proof that the large discretion once claimed by the Court of King’s Bench, if not wholly abandoned, is now reduced within its narrowest hounds. The motion for a habeas corpus was made on behalf of a husband, and its object was to compel a reluctant wife, who had deserted him without cause, to return to his protection and her own duties.

The case of Rex v. Meade (1 Burr, 542) was confidently relied on in support of the motion; for although in that case the habeas corpus was denied, it was so upon the sole ground that the husband had given bis voluntary consent to the existing separation, and the language of the judges necessarily implied that this consent was the only bar to the success of his application. That this was the fair construction of that case was not denied by the court; but as it appeared from the affidavits, in the case before them, that the wife was not in fact under any restraint, the judges all concurred in the opinion that the motion could not be granted, Lord Campbell, Ch. <L, forcibly saying “ that it would be useless to compel the appearance of the wife, since, if she were brought up, the judges could only ask her where she would go, and could not compel her to return to her husband.” It must, however, be admitted that Lord Campbell, in the course of his opinion, distinctly stated that “ the case of infants of tender years stands upon different grounds;” and this is, in fact, the solitary exception to which I alluded in the commencement of my remarks; the exception from the general rule that a habeas corpus, in a court of common law, can never be used for the sole purpose of enforcing marital or parental rights. The supposed exception, however, applies only to infants of such tender years, as to be incapable of making a choice; and in the case of The King v. Greenhill (4 Adol. and Ell. 642), the grounds of the exception, and the cases to which it applies, are so lucidly stated by that distinguished judge, Hr. Justice Coleridge, that I cannot do better than quote his language. These are his words: “ A habeas corpus proceeds on the fact of an illegal restraint. When the writ is obeyed, and the party brought up is capable of using a discretion, the rule is simple and disposes of many cases, namely, that the individual who has been under restraint is declared to be at liberty, and the court will even direct that the party shall be attended home by an officer, to make the order effectual. But when the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody,' because the law presumes that where the legal custody is, no restraint exists.” In Rex v. Greenhill, the children, whose custody it was held belonged to the father, were not in court, and an order for their delivery to the father was therefore affirmed; but Coleridge, J., expressly says, that had they been in court, there would only have been a verbal declaration that the custody belonged to the father. It is evident, therefore, from these facts, and the remarks of the learned judge, that the alleged exception is more apparent than real. An infant of such tender years as to be incapable of rationally expressing its wishes, which is all that I can understand to be meant by “ incapable of making a choice,” is of necessity under restraint, and in order to determine whether the restraint is illegal, the court must determine to whom the custody belongs. When the infant is before the court, nothing more is necessary to be said, since the person entitled to the custody may then, without opposition, by taldng possession of the child, assert his legal right; but when the infant under an illegal restraint is not in court, an order for his delivery must, necessarily be made; for, in such a case, it is in reality nothing more than an order for his discharge. Since the case of Rex v. Greenhill, which, in awarding the custody of children of a very tender age to a profligate father in preference to their mother, was one of flagrant injustice, an act of Parliament, an act which we have adopted (2 R. S. p. 149), has been passed, giving to the courts of common law a discretionary pbwer of awarding the custody to the mother; but in all other cases, I apprehend that the law is settled, that the only question to be determined upon a habeas corpus, where a restraint is proved, is its legality, or illegality; and when it is held to be illegal, the only judgment to be pronounced, the discharge of the person restrained; and that no case is to be found, in which, there being in fact no restraint, any order whatever has been made.

I proceed next to inquire into the past condition and actual state of our own law.

During our whole existence as a colony, and until the year 1787, the English Habeas Corpus Act was in force, if notprojorio vigore, yet as a part of our common law. In that year all English statutes were repealed, and this, as well as many others, was enacted by our Legislature, and in its new legislative form was nearly a literal transcript of the original act. Like that, it was confined to persons committed upon a criminal charge, and, like that, gave no other authority to a judge acting under its provisions, than to discharge, bail, or remand the prisoner brought before him. It was re-enacted substantially in the same form in the revisions of 1801 and 1813, and remained unchanged until 1818, when it was materially enlarged and improved; but, as the changes then made were incorporated in 1830 in the statute, as then revised and amended, and. no case is to be found in the interval affecting their construction, it is not necessary now to advert to them.

It follows from this statement, that none of the reported cases in this state between 1787 and 1830, in which a question as to the custody of infants has arisen, have any bearing upon the present discussion, since in all, as in the English cases that have been rejected as inapplicable, the habeas corpus was the common law, not the statutory writ. The cases that have most frequently been quoted and relied on, as proving the existence of the discretionary power that I am now required to exercise, are The People v. Landt (2 John. R. 374); McDowle's case (8 John. R. 328); Ferguson!s case (9 John. R. 239); and Waldron’s case (13 John. R. 419). It is not to be denied that the Supreme Court, in some of these cases, adopting the views, and nearly the language, of Lord Mansfield, in Rex v. Delaval, and of Ch. Tilghman in The Commonwealth v. Aldrichs (5 Binney, 520), asserted its power to make a positive order for the delivery of an infant into the custody of the person whom, according to the particular circumstances in evidence, it might deem to be entitled; but it is remarkable that, in each of the cases, the exercise of this discretion was, in fact, declined; and declined (I add) for reasons so applicable to the present case, that, were it possible for me to pass the limits of the jurisdiction which the statute gives, they would probably control my action.

Thus, in the matter of Waldron (13 John. R. 419), the court refused to take an infant daughter from its grandparents and deliver her to the custody of her father, it not appearing that she was kept against her will, and because, in "the opinion of the judges, the court of Chancery, from its peculiar jurisdiction, was better able to protect and enforce the rights of the parties, and determine properly the question of custody, than a court of law, upon a habeas corpus. In McDowlds case, the language of the court, as to the impropriety of interfering against the will of an infant, is still more explicit. It amounts, indeed, to a denial of the right. A father claimed the restoration to his own custody of two sons under age, who- were living as apprentices with the person to whom the writ was directed, and the ground of the application was, that- their indentures were void, and their detention by their master therefore illegal. Thompson, Ch., in delivering the judgment of the court, said, “ All that the court is required to do under this writ, is to see that the infant is not restrained against his will,” and after referring to the cases, and particularly Rex v. Smith, in 2d Strange, he added, “ In this case the court can oyly declare that these infants are at liberty to go where they please. They may go and put themselves under the care and protection of their father, or may return to the service of their master.” The boys elected to remain with their master, and the court sent.an officer with them to protect them on their return.

It has been strongly urged that the father has a paramount legal right to the custody of his infant children, and that' the court, when it has no reason to believe that his power will be abused, is bound to make a positive order for their delivery into his possession and control; but the cases last cited, without adverting to any other, conclusively show that, even at common law, such is not the obligation of the court, whatever may be its powers.

The only cases, since the adoption of the Eevised Statutes, that can be supposed to have any application, are The People v. Chegaray (18 Wend. 542), and The People v. Mercein (3 Hill, 399).

The People v. Chegaray is not founded upon the general Habeas Corpus Act, under which I am acting, but upon special provisions in the title of parents and children, in a prior chapter of the Revised Statutes (2 R. S., chap. 8, part 2, pp. 148-149); and these provisions, it is an obvious remark, were certainly useless, had the Supreme Court been deemed to possess, either at common law, or under the general statute, the same discretion, in awarding the custody of infants, as undoubtedly belonged to the Court of Chancery. Under these provisions, a wife living in a state of separation from her husband is authorized to apply to the Supreme Court for a habeas corpus to bring before it a minor child of the marriage, and the court, upon the return of the writ, is empowered to award to her the charge and custody of the child, under such regulations and instructions as the case may require. In construing these provisions in The People v. Chegaray, Bronson, J., truly observed, that they had conferred a power upon the Supreme Court which it did not before possess; and that it was not the object of the common writ of habeas corpus to try the rights of parents or guardians to the custody of infants, but merely to deliver them from unjust imprisonment, and all illegal or improper restraint.”

If the sole object of the ordinary writ is the deliverance of the party from an illegal restraint, it is a necessary consequence that the court, when it terminates the restraint, exhausts its power.

In the People v. Mercein, the Supreme Court (Nelson, Ch. J., dissenting), commanded the defendant by a positive order to deliver an infant under his control into the custody of the father; and so far as I have been able to discover, with the exception of Eiekerson’s case (19 Wend. 16), it is the only case to he found in our own reports in which a similar order has been made.

Passing over the objection that this decision is not easy to he reconciled with that of the court of errors, in Mercein v. The People (28 Wend., p. 64-106), it is subject to several observations which render it inapplicable as an authority that I am hound to follow.

First, Mr, Justice Cowen distinctly says, that the father, in prosecuting the writ, was in the exercise of a common law right, and that this right had not been taken away by the statute (3 Hill, p. 407); and Bronson, J., who concurred with him, had previously said that the statute did not apply to the case, and that the judge who issued the habeas corpus had exercised a common law, not a statute, authority (25 Wend., p. 82).

Second, The defendant, on behalf of the mother, insisted that he was entitled to retain the possession of the child, and hence it became necessary to decide to whom the custody belonged, in order to decide the question of an illegal restraint.

And lastly, the child was of such tender years as, in the judgment of the court, to be incapable of making its election; and, as I infer from the report, was not in the presence of the court when the decision was made. Had it been, an order for its delivery would have been unnecessary. The same observations, I apprehend, apply to Hickerson’s case; the proceeding was at common law, for the writ appears to have been granted and returned at a general term; as opposite claim to the custody was set up, and the question of right was therefore necessary to be determined, and the child was not before the court when the order was made; to which I add, that, as the . contest in that case was between the father and mother, a husband and wife living in a state of separation, the case, although not within the words, was plainly within the equity of the title of parents and children (2 R. S., pp. 126-7, §§ 1, 2); for if, under that statute, an infant may be taken from the father and given to the mother, a fortiori may the custody be transferred from the mother to the father, who at law has a paramount right.

I do not deem it necessary to examine the decisions upon a habeas corpus in other States of the Union, as, for several reasons, they have a very remote, if any, application; and from the review that I have now made of the English cases and our own, I feel warranted to draw the following conclusions.

First. There is no adjudged case in which it has been'held that an officer, acting out of court, either under the original habeas corpus act, or the present enlarged and amended statute, when a person who has been illegally restrained is brought before him by a-habeas corpus, has any authority to do more than simply to discharge him.

Second. There is no adjudged case in which it has been held that such an officer may supply the defect of his authority, under the statute, by assuming a discretionary power, which if it reside elsewhere than in a court of equity, belongs only to a court of common law in the exercise as a court of a common law authority.

Third. Comparing all the cases, and following the most recent, the law may now be regarded as settled, that the basis of the common law, as well as of the statutory habeas corpus, is an illegal restraint, and consequently that this fact must be admitted or proved to exist, to warrant any further proceeding on the writ.

Fowrih. Even where a restraint is proved and is held to be illegal, the authority of the court, even when acting under the common law writ, is limited to the discharge of the person restrained, except in the case of an infant of such tender years as to be incapable of making a choice.

Fifth. This exception, however, is more apparent than real, since in this case, the questions of right of custody and of illegal restraint are so inseparably connected that, 'in pronouncing a judgment, both must be determined, and it is only when the infant is not before the court, but is still in the possession of the person whose restraint is held to be illegal, that a positive order for' its delivery is made. Such an order, under these circumstances, is in truth, nothing more than an order of discharge, since, when the infant is so young as to be wholly incapable of acting for itself, it can only be discharged from the restraint of one person by giving it into the custody of another.

Lastly. The authority which the higher courts at Westminster and the Supreme Court of this state now possess, of taking the custody of an infant from the father, to whom it legally belongs, and transferring it to the mother, creates no exception from the general rule, since, both in England and in this state, this authority is given by a special statute, which it is admitted was necessary to be passed, to justify its exercise. A special statute would have been useless, had the common law judges possessed the same discretion as the Chancellor.

The result of this investigation is, that, whatever may be my personal wishes, it is impossible for me to make any order relative to the future disposition and custody of the child, unless it can be shown that I derive the necessary authority from a just construction of the general statute upon which my proceedings are founded. (2 Rev. Stat., Ft. 3, Chap. 6, Tit. 1, Art. 2, p. 563.) Ho attempt, however, has been made to show that the statute gives the desired authority, either expressly or by implication; and had the attempt been made, a careful examination of the statute authorizes me to say, it must have been fruitless. There is not a section, sentence, or line, that could be fairly adduced to sustain the assertion. The Habeas Corpus Act, in its revised form, is greatly enlarged in its operation, and, it may be thought, somewhat improved in its language and details, but it is unchanged in its principle, and in the nature and extent of the relief that may ultimately be given; and to prove this, a special and critical examination of its various provisions is by no means required. There are a few sections only to which it can be necessary to refer. By the first section (p. 563, sec. 21), the right of prosecuting a habeas corpus is no longer confined to persons imprisoned for a criminal offence, but is extended to all, who, within this state, are “ committed, detained, or restrained of their liberty, tinder any pretence whatsoever,” with a few exceptions, not necessary to be stated, which are specified in the next section. It is therefore Certain that an illegal restraint is now, as it has always been, the basis of the writ. It is this fact, therefore, that must be positively and distinctly stated and sworn to, in the petition upon which the application for the writ is founded (p. 654, sec. 25). If the fact is not so alleged, the officer to whom the application is tirade, would exceed his jurisdiction by allowing the writ, and it is equally plain that he would exceed his jurisdiction by refusing to dismiss it, when the allegation is shown to be groundless. As the formal assertion of the fact alone gives him jurisdiction, so the actual truth of the assertion can alúne preserve it. If the writ, where there is no restraint, ought not to issue, it follows that, where there is no restraint, as erroneously issued, it must be quashed.

Where the jurisdiction of the officer issuing, the writ is continued, and the restraint of the party brought before him, by virtue of the process, upon a due inquiry into its cause, is found to he illegal, the words of the statute, in prescribing the course to he followed, are free from a shadow of obscurity or doubt: they are most plain and' unambiguous: they give no discretionary power, but impose a positive duty. The language is, that the officer shall discharge the party from the custody or restraint in which he is held.” (2 Rev. Stat. § 39, p. 567.) It is this order which the officer is bound to make, and I apprehend he can make no other. If he has any authority to make a further or different order, I am yet to learn from what source it is derived, and upon what grounds its exercise can be defended. It is not given to him by the statute: he has it not at common law: he has it not as clothed with the powers of a Chancellor. It may he that such an authority has not unfreqnently been exercised; but if so, it has been exercised without inquiry and without right.

It remains only to apply the observations that, have been made to the facts of this case, and this will, not long detain me.

Mrs. Cooper, to whom the writ is directed, and by whom it has been obeyed, denies, in her return, that the child Jane Trainer is detained by her, or in any manner restrained of her liberty. She admits that the child is free; she claims no right to her services, but asserts that she remains "with her of her own free will, and solely from motives of affection. There is no evidence to show that this retain is untrue; on the contrary, its truth has been proved by the examination of the child herself, who in the strongest terms, and in a manner that left no doubt of her sincerity, declared her attachment to Mrs. Cooper, and her desire to remain in her service and under her protection. Under these circumstances, I am constrained to say that Jane Trainer is not “imprisoned, detained, confined, or restrained of her liberty in any manner or upon any pretence whatsoever, and that the contrary allegation in the petition upon which the writ was allowed is shown to be groundless. I must therefore declare that I have no longer any jurisdiction," and that, as the habeas corpus, had the truth been known, ought not to have issued, it must now be dismissed.

Had a different return been made to the writ, had the respondent claimed the child as her slave, or set up, under a pretended contract, a right to her services, the result would have been substantially the same, since I could only have discharged the child from a restraint that I should have held to be illegal. In no event, under my present construction of my powers and duty, could I have made the order that is required. Did I indeed possess the ample discretion which belongs to the Supreme Court, as now the Court of Chancery of the state, I should probably have no difficulty in making a suitable arrangement for the future custody of the child. For manifest reasons, she would not be left with the respondent, nor, for reasons nearly as cogent, which his examination has disclosed, would I place her in the custody of her father. Yet I doubt not, that, even with the consent of the child, a disposition of her custody might be made, by which her future happiness and welfare would be effectually consulted.

As the case stands, I can do no more, following the example of the Supreme Court in McDowle’s case, than say to the child: “You are free. If you please, you may go to your father, to whom your obedience is due, and put yourself under his care, or, if you so choose, you may return with the person with whom you are now living, and with whom, as you declare,# you wish to continue.”

[Chief Justice .Oaklet and Judges Campbell and Boswobth, with whom only Judge Duer had the opportunity of consulting, concurred in the opinion that his whole authority was derived from the statute, and that, under the statute, he could make no order for the delivery of the child.].

       It was the intention of the judge, and he so stated when announcing hia decision, had it been in hia power, to place the child in the custody of the Edv. Mr. Pennington, a highly respectable colored minister of the gospel, who most generously offered to take her into his own family, educate her as one of his own children, and give ample security for the faithful performance of the trust.


source: Caselaw Access Project

author: Campbell, J. Bosworth, J.

license: Public Domain

text:
    The Mayor, Aldermen and Commonalty of the City of New , York, Appellants, against William Colgate, Respondent.
    (Before Campbell, Bosworth, and Emmet, J. J.)
    December 7, 8, 1852;
    February 26, 1853.
    Assessments, imposed in proceedings, taken under the “ Act to reduce several laws relating particularly to the City of New York into one act,” passed April 9, 1813, and the acts amending the same, to widen and straighten streets in the City of New York, upon the owner of a lot, on account of the benefit to accrue to such lot, are an actual and first lien upon the lot, and payment of the sum assessed may be enforced in the same manner, as if the lot had been actually mortgaged for the payment thereof.
    A sale of the lot at auction by the Corporation to collect the sum assessed, when the proceedings become ineffectual to vest any title in the purchaser, through the mere misjudgment of the officers of the Corporation, is not a bar to an action to recover the assessment, if the owner has not been damnified by the • sale, nor disturbed in his possession of the premises.
    Such a demand is not barred by the statute of limitations within a shorter period, than a demand arising from an actual mortgage of real estate.
    This action was brought to enforce payment of the sum of $265, the amount of an assessment imposed on certain lands of the defendant in the City of New York, for .the benefit accruing to such lands, in consequence of the widening and straightening of John shreet, in said city, together with interest on .that sum from April 3, 1839, the date of the confirmation of the report ■ of such assessment. The action was tried by the Court without a jury, and judgment was given for the defendants. Prom that judgment the plaintiffs have appealed. The facts of the case are briefly these :
    Before the 12th of November, 1838, three commissioners of estimate and assessment were duly appointed, qualified and acting as commissioners of estimate and assessment in a certain proceeding then pending in the Supreme Court of New York, relative to the widening and opening of John street, in the City of New York.
    On the 12th of November, 1838, the commissioners reported their proceedings to the Supreme Court, and among other things, reported that they had assessed William Colgate $265, by reason of the benefit to accrue to certain premises particularly described in the report, and also in the complaint in this action. That report was confirmed on the 3rd of April, 1839.
    At the time the report was made, and at the time this action was tried, the defendant owned such premises.
    On the 24th of October, 1841, the assessment not having been paid, the premises were sold by the plaintiffs at public auction to one Robert Colgate, as purchaser, for a sum sufficient to satisfy the assessment, the interest thereon, and the costs and expenses of the sale. A certificate, signed by the Street Commissioner, was given to such purchaser, stating the fact of his purchase, the amount paid, and that he would be entitled to a lease for ten years, after the expiration of two years from the date of the certificate, unless the premises should be redeemed from the sale within that time.
    The following conditions of the sale, were declared and published at the sale:—
    “ Commons of Sale.—The property will be sold for the lowest term of years that any person will offer to take the same, in consideration of advancing the amount of the assessment, interest and charges thereon. Certificates will be given as soon as they can be made out to the purchasers; and at the end of two years, a lease will be given for the term the property was sold for, unless it should be redeemed within that time; in which case, the purchasers will have their money returned, with interest at the rate of fourteen per cent, per annum.

      “ Should any mistake or irregularities in the proceedings for assessments, collections or sales on the part of the corporation be discovered, so as to prevent this sale from being effectual, the sale to be void; and the purchase money with interest for the time, will be returned. The whole of the purchase money to be paid immediately after the sale.
    “JOHN EWEN,
    “ Street Commissioner.”
    “ Street Commissioner’s Office,
    “ October 27th, 1841.”
    The redemption notice, in reference to such sale, given by the Street Commissioner, was published for the same length of time, and in the same manner as that mentioned, and referred to in Dougherty & Hope, 8 Denio, p. 594, and 1 Corns, p. 79. It was therefore ineffectual to vest a title in Robert Colgate for the term of ten years, mentioned in the certificate of his purchase.
    In February, 1848, the Mayor, Aldermen, and Commonalty of the City of New York, passed an ordinance for the return to the purchaser, in this and similar cases, of the purchase money. i
    On the 2nd of May, 1849, Robert Colgate presented to the Street- Commissioner the certificate of the purchase, and demanded a return of the purchase money.
    It was returned to him with interest, and'the certificate of purchase was then surrendered by him, as cancelled, to the Street Commissioner.
    The assessment remaining unpaid, and the defendant refusing to pay it, this action was commenced in June, 1851, to recover it with interest, and to obtain a judgment of the Court, that it was a lien upon the premises in question, and that the premises be sold to satisfy the same together with the costs of this action.
    The cause was tried at special term before Mr. Justice Sandfobd, who rendered judgment yr'o formó for the defendant with leave to the plaintiffs to appeal without security to the general term.
    H. E. Davies, for the plaintiffs,
    now contended that the judgment for the defendants should be reversed and a judgment be entered for the plaintiffs upon the following grounds:
    I. The assessment was regular, and constituted a valid lien upon the lands described in the report. § 178, of act of April 9th, 1813. 1. The lands deemed to be benefited, are correctly described, and the amounts of the benefits ascertained. 2. This report has become a judgment of the Supreme Court by its confirmation, and is binding and conclusive on all. (Embury vs. Conner, 3 Comstock, 522.) 3. If there was any irregularity, it was to be taken advantage of and objected to on the motion to confirm the report. (Same, case. Stafford vs. The Mayor of Albany, 6 John. Rep. p. 4.) The court say an assessment cannot be set aside for irregularity. “ The statute makes the assessment conclusive; and the rights of the parties were fixed when the suit was commenced,” it being a suit to recover an award for damages which had been confirmed and subsequently set aside for irregularity.—Held that the plaintiff could recover. Chan. Kent (in Le Roy vs. the Mayor, &c. 4 John Ch. Rep. 354), on the authority of English cases then cited, held an , assessment for sewer final; on the ground, that the act declared the ratification to be final and conclusive.
    II. The sale of November 24th, 1841, did not extinguish or impair the lien. 1. It was a condition of the sale, that if any irregularity should be discovered, so as to render it ineffectual, the sale was to be void, and the purchase money returned. 2. It is conceded, that the redemption notice not having been published according to the statute, no lease could ever be given to the purchaser on said sale; or, if given, would not have conveyed any title. (Striker v. Kelly, 7 Hill. Rep. Doughty v. Hope, 3 Denio, 598.) 3. The conditions of the sale rendered it void; and the purchaser could recover from the corporation the amount paid on the sale. (1 Sand. Sup. Ct. Rep. 485.) 4. A defendant, arrested on a Cal Sa. set aside for irregularity, may be arrested again on another Ca. Sa. issued upon the same judgment. (Merchant v. Franks, 3 Ad. & E.) A foreclosure and sale on a mortgage does not extinguish the debt, only pro tanto. (Globe Ins. Co. v. Lansing, 5 Cowen, 380. Lansing v. Goelet, 9 ibid. 346.)
    Lands sold on execution for less than the amount due, may be re-sold if they become the property of the debtor, the lien of the judgment still continuing. Bronson, J., says, “ But when Brackett, the judgment debtor, redeemed from that sale, Davis (the purchaser at the former sale) got his money back again with interest, and the sale became null and void.” (Wood v. Colvin, 5 Hill.) A sale by sheriff does not divest the estate of the debtor, unless the purchase money is paid, and the deed delivered. (Catlin v. Jackson, 8 John. Rep. 406.) On page 429, Chancellor Kent says: “ If the money is not paid, or if the sale does not operate to satisfy the debt, what benefit arises to the owner? It would be competent for the sheriff to return, that the money was not paid, and that the premises remained unsold. In chancery, if the money bid at auction is not paid, it is the uniform practice to annul the sale:” A sale by one of the commissioners of loans, under a mortgage given to the commissioners, the statute requiring that two commissioners should be present at the sale, and a deed delivered, it was held that the sale was void; but not pretended that the, mortgage was paid, or the lien created by it affected or impaired. (Powell v. Tuttle, 4 Comstock.)
    III. The confirmation by the court of the assessment for benefit, created a lien in favor of the corporation, having priority of all other liens: 1. By way of mortgage; 2. By way of judgment. 1. Section 223 declares, that all assessments thereafter to be made by virtue of that act, shall become liens, &c., and shall be entitled to a preference over all other incumbrances upon the same; and may be sued for and recovered, in like manner as if the said houses, &c., were mortgaged to the corporation for the payment thereof. In Dale v. McEvers, 2 Cowen, 118, it was held, that a tax laid upon real estate in the city of New York, for the purpose of opening or improving a street, &c., takes preference to a prior mortgage. It is apparent from the course of legislation in this state, that the legislature have ever treated these statute liens precisely as a mortgage. And in accordance with § 223, of the act of 1813, as prior mortgages. This is manifest from a perusal of § 162 and § 163, of the apt of April 9th, 1813. Those sections provide, that in all cases where any assessment, tax, rate, charge, &c., in favor of or payable to the Mayor, &c., shall, by virtue of any act or acts of the legislature of this state, be made, or in any manner become a mortgage, lien, charge or incumbrance, upon any lands, it shall be the duty of the Mayor, &c., to cause a note thereof to be filed with the register, &c. And no such assessment, rate, tax, charge, &c., shall in any case or manner be, or operate as a mortgage, lien, charge or incumbrance, upon any lands, &c., so as to defeat, prejudice, &c., the title or interest of any bona fide purchaser or mortgagee of said premises, unless said note, &c., shall have been filed with the register, &c. § T63 provides for cancelling such registry, on payment of any such assessment, rate, tax, &c. By an act of April 11th, 1815, these sections were repealed. (Laws of the city, p. 776.) It is stated in the preamble to this repealing act, that the Mayor, &c., had represented that the registering in the office of the register, of the taxes and assessments, was not only expensive, but altogether unnecessary, &c. Therefore, &c. The acts of May 14th, 1840, and May 6th, 1841, authorizing mortgagees to redeem lands sold for assessments and taxes, recognize their existence as liens; and section 3 of the former, and section 6 of the latter, create liens in their favor to the amount which they may pay on such redemption, in the same manner as though the lots were mortgaged to them. Other liens on real estate have been created by statute. 1 Rev. Stat. 3d ed. p. 396, § 37, provides, that the bond of the town collector of taxes, shall be a lien on all the real estate held jointly and severally by the collector and his sureties within the county. The act creating the office of the receiver of taxes, Laws of 1843, p. 314, § 4, enacts, that the receiver shall give bond, with sureties, and every such bond shall be a lien on all real estate held jointly and severally by the receiver and his sureties within the county, at the time of the filing thereof, and shall continue such lien till the condition thereof, and all costs and charges incurred in the prosecution thereof, shall be fully satisfied and discharged. Provision is made by law, for the chamberlain to execute a satisfaction of the bond, and thus discharge the lien. A like lien is created by the law organizing the Croton aqueduct department. Laws of 1849, p. 541, § 18, provides, that the regular water rents, when established, shall become a charge and lien upon such houses and lots, &c.; and the same are to he collected in a similar manner with the taxes, and as apart thereof. Alien on land continues a charge thereon for the term of twenty years. (Gore v. Brazier, 5 Mass. Rep. 542.) 2. By the confirmation of the report by the Supreme Court, the judgment became a judicial proceeding, and a judgment in rem against the lands described in the report, for the amount which the court determined they were benefited. Liens by judgment are not presumed to be paid, until after the expiration of twenty years; and then that presumption may be rebutted, as in case of mortgages. Judgments are liens on lands. (2 R. S. 3d ed. p. 454, § 6; p. 455, § 7.) Such lien shall continue for ten years, after which, it ceases to be a lien, as to purchasers in good faith and subsequent incumbrances. The presumption at common law, of payment after lapse of twenty years, did not attach to a judgment. It did to a debt due by specialty and to sealed instruments. (Smith’s Ex’rs v. Miller, 14 Wend. 188. 2 R. St. 3d ed. p. 398, § 46, 47, 48.) In Clark v. Lector’s Ex’rs, 23d Wend. Rep. 477, plaintiffs sued out a sci.fa. to revive a judgment recovered previous to Jan. 1850. The case was decided in May, 1840. Nelson, Ch. J., in delivering the opinion of the court, says, “In this case, the plaintiff still has his lien against the realty, and may enforce it against the heir and terre tenant; or if that is sold under the surrogate’s order, the judgment takes preference according to the lien. And probably, under § 42, the next of kin or legatees, may still be liable, if assets have been paid to them.
    IV. The statute of limitations does not apply. 1. Because the lien is in the nature of a mortgage. 2. It is in the nature of a judgment in rem, against the land. 3. It is clearly a lien or charge on lands, which continues for twenty years. But if the claim be but a simple contract debt, the lien on the land is not discharged, though the debt be barred. (Angell on Limitations, p. 77.) If a pawnee is barred by the statute from recovering a simple contract debt, in such a case it is equally clear, although the remedy to enforce the debt may be barred, yet the lien on the property pledged will remain. Thus, in an action of trover, brought in 1800, to recover certain merchandize, the defendant, a wharfinger, claimed a lien upon it for the balance of a general account, which was due in 1790. It was contended, that as the balance under which the defendant insisted he was entitled to the lien had accrued in 1790, it was consequently barred. But Lord Eldon considered that the debt had not been discharged, though the remedy to enforce it had been taken away. Though the statute, he said, had run against the demand, if the creditor have possession of the goods on which he has a lien for general balance, he may hold them for that demand by virtue of the lien. (Spears vs. Hartly, 3 Esq. Rep. 81.) When an attorney has a lien upon a judgment, and Ms debt was barred by the statute, it was contended that his debt was gone; but the court held that the statute barred the remedy, but not the right; and that the attorney who had taken no steps to recover Ms costs for six years, had still a right to be paid from the sale of the goods. (Higgins vs. Scott, 2 Barn. & Adol. 413.) An acceptor may retain funds to indemnify him against his acceptances, though outstanding longer than the time limited by the statute. (Kerrian vs. Williams, 3 Campb. R. 418. Ld. Ellenborough.) Whether the security for a simple contract debt is a lien on property personal or real, the lien is not impaired in consequence of the debt being barred. Therefore, when a debt is due from A. to B. by a promissory note, secured by a mortgage on real estate, though the note is barred by lapse of time, yet A. is not barred of his right as mortgagee. (Belknap vs. Gleason, 11 Com. R. 160. Thayer vs. Munn, 19 Pick. 535. Toplis vs. Baker, 2 Cox. E. R. 123.) Intimation of Justice Sutherland, in Jackson vs. Sackett, 7 Wend. 94, overruled by Chan. Walworth, in Hyer vs. Pruyn, 7 Paige, 470; who says, it is counter to the authorities, and it could not certainly be law. But specialties are not barred by the statute. Actions founded upon contracts in fact are barred; but actions of debt created by construction of law, are not.

      D. Lord, for the defendant,
    claimed to retain the judgment, and made and argued the followmg pomts.
    I. The evidence offered by the plaintiff, to wit, the conditions of sale, the publication of the redemption notice, and the ordinance, are inadmissible, and should be ruled out by the Court. 1. The conditions of sale, were for the benefit of the purchaserj as between him and the Corporation, in case the sale had been illegal. The owner was no party to those conditions, and therefore cannot be prejudiced by them. 2. The sale, and all previous proceedings, were regular, and so admitted by the plaintiffs. 3. The sale being regular—any subsequent act of the plaintiffs, required to be done, is no part of the sale, nor is the publication of the redemption notice any part of the sale, and has been so held by the Court of Appeals, in the case of Doughty v. Hope. (3 Denio, 603, & 1 Comstock, 79.) The omission to publish such notice cannot affect the legality of the sale—although it may defeat the purchasers’ title. 4. The ordinance of the Common Council can in no wise prejudice the defendant.
    II. The right to take private property in the city of New York, for public streets, and to charge the expense as a debt or liability upon the owners of property interested, is a naked power confided by the legislature to the Corporation. (Mount Morris Square, 2 Hill, 24. Sharp v. Spier, 4 Hill, 83 and 86. Striker v. Kelly, 7 Hill, 25. 6 Wheaton R. 119. 13 Sergt. & Rawl. 508.) 1. This power is given by the R. 1. of 1813, page 408, §§ 177, 178, 179, 182, 185, 186, and some subsequent statutes. These statutes are intended to form a complete system upon this subject (Striker vs. Kelly, 7 Hill, 13), and to give power to the Corporation to take land for streets, to lay assessments therefor, and to force the collection of the assessments. 2. The assessment, when confirmed by the Supreme Court (which is one of the means given by statute to carry out this power), becomes a debt or liability against the party assessed, in favor of the Corporation, and is made a charge or lien on the particular property described in the Commissioners’ Report. (2 R. L. 420, § 186.) 3. When the statute gives a power, and at the same time provides the means of executing it, those who claim the power, can execute it in no other way. So if the act has prescribed the remedy for the party grieved, and the mode of prosecution—all other modes and remedies are excluded (Dudley v. Mayhew, 3 Comstock R. 15 and 16, and the 1 authorities there referred to.) 4. The statute has provided all the remedy necessary to enforce the power, and collect the assessments, to wit, 1. By distress of the goods and chattels of the party assessed in the name • of the corporation. (2 R. L. 420, § 186.) 2. By action of debt or assumpsit, § 186. 3. By sale of the lands on which the lien is charged by the statute. (2 R. L. 442, § 259. Sess. Laws of 1816, p. 114, § 2.)
    IH. The power given by statute to the Corporation to enforce this lien, has been by the plaintiffs fully executed, by the sale of the lands, that being one of the modes prescribed by law. 1. The sale was valid, and conveyed a perfect but conditional title for the term purchased. 2. When the money was paid by the purchaser, it satisfied the debt to the corporation, principal and interest. The assessment was fully paid, and the lien discharged. 3. If once discharged, the statute provides no revival of the lien, and the common law does not imply one in favor of the party who lost his remedy, not by accident or failure of paramount title, but by his own fault. It is analogous to discharging goods levied upon by execution, sufficient to pay the execution. Or a sale of said goods, under the execution. (2 Lord Ray, 1072. 1 Salk. 322. 4 Mass. 403. 7 John. 428-9.) The land is discharged from its lien. (Hoyt v. Hudson, 12 John. R. 207. Ontario Bank v. Hallett, 8 Cowen R. 192. Flagg v. Dryden, 7 Peck R. 52. Jackson v. Bown, 7 Cowen R. 13. Ex parte Lawrence, 4 Cowen, 417. Forsyth v. Clark, 3 Wend. 637. De la Vergne v. Evertson, 1 Paige R. 181. Marvin v. Vedder, 5 Cowen, 671. McArthur v. Porter, 1 Hammond R. 44.
    IV". The statute of limitations applies: 1. The action of debt or assumpsit, founded on the statute liability upon the assessment, was limited within six years, under § 18, 2 R. S. 295 and 296. (7 Wheat. R. p. 115, 117, 119.) After six years, the policy of the statute and its words forbade an inquiry into the existence of the debt. 2. The action for the debt being gone, the lien for it by way, not of possession but of charge, passed away with it. 3. Equity must follow the law in this as in other cases of remedies'lost by staleness and neglect.
    T. The present action is in the nature of a foreclosure suit in equity, and is not authorized by statute.
   Campbell, J.

The lien on the defendant’s house and lot for the assessment, “ shall bear lawful interest until paid, and shall be entitled to á preference before all other incumbrances upon the same, and may be sued for and recovered with costs in like manner as if the said houses and lots were mortgaged to the mayor, aider-men, and commonalty, for the payment thereof,” § 223 act of 1813, and § 6 act of 1801. The lien is specific, not general, and is the same as if the lot originally assessed was mortgaged to the plaintiff. If, then, there had been an actual mortgage executed by the defendant to the plaintiffs, the house and lot would have been discharged from that mortgage lien, either by payment or by a tender of payment of the amount. The defendant himself neither paid nor tendered the amount. The plaintiffs then proceed to sell, and the proceedings to enforce the collection of these assessments are somewhat analogous to a statute foreclosure of a mortgage. The purchase at auction was made by a stranger-, who paid the amount of the assessment and costs, and received a receipt therefor, stipulating that at the expiration of two years he would be entitled to a lease of the premises. The lease was .never given, because the plaintiffs, after the sale at auction, did not take the further necessary legal steps to make such sale effectual, so that a good title could be given by them to the purchaser. And on demand made by the purchaser the plaintiffs returned to him his purchase money. There is no pretence on the part of the defendant that he has ever been in any way disturbed in his possession of the premises. He has manifested no desire to relieve his property from the lien by payment, or offer to pay the amount expended by the plaintiffs for his benefit. Suppose, in case of a sale of mortgaged premises by advertisement, they should be struck down to a stranger, who should pay the amount and take a receipt therefor, with a stipulation that the deed of the property should be given to him at a future day, and then for any reason occurring thereafter it should be agreed between the mortgagee and the purchaser that the sale should be abandoned, could it be said that thereby the mortgagee would lose his lien % It might be that if there should be a loss on a resale, the owner of the equity of redemption might recover damages, though that is doubtful. The case is widely differeut where there is payment, or tender of payment by the mortgagee, where the effect is to draw from the mortgagee and revest in the mortgagor all the right and interest held by the mortgagee. In the case of a sale by the mortgagee under his power of sale, to a stranger, the effect is to transfer all the title and interest of both mortgagor and mortgagee to such .stranger, and the lien is necessarily discharged by the operation. But in case of payment, or tender, the estate of the mortgagor becomes again complete and perfect, because he has done all that is required of him, and it is inequitable, after he has paid the debt, or is ready to pay, and has been tendered the amount, that the creditor should still retain a lien. But when the debtor stands by, and sees the creditor bargain with a stranger, and neither "pays nor offers to pay, and the effect of such a bargain, when completed, would be to carry away thé debtor’s title', it can hardly be said that if for any reason such bargain falls through, whereby the debtor is not divested of his estate, or even of its temporary possession, that he can then set up such bargain in bar of the creditor’s lien. Viewing this lien as in the nature of a mortgage, I cannot think it was discharged by the sale mentioned in the case.

The proceedings for opening, altering, and widening streets, §§ 177,178, act of 1813, are taken in the Supreme Court, and become matter of record, and the lien created thereby being in the nature of a mortgage, I cannot see how the statute of limitation can be a bar; at all events, I think the presumption of payment cannot arise until the lapse of the twenty years, as in .case of a judgment.

I am of opinion that there should be judgment for the plaintiffs for the amount of the original assessment, with interest and costs.

Bosworth, J.

The terms of § 223, of the “ Act to reduce several Laws, relating particularly to the City of New York, into ONE ACT,” passed April 9, 1813, are sufficiently comprehensive to embrace the assessment in question:

Whether this section is applicable to this particular assessment, depends upon the question whether it relates' to sums assessed in the Opening and Laying out Streets, &c.” (id. § 177, p. 408), or relates solely to sums assessed in laying out . and regulating “ Wharves, Piers and Slips:" id. § 219, p. 431. The section is found under that part of the general act which contains provisions specially relating to the latter subject.

The section declares that every sum theretofore assessed by virtue of the act entitled, “ An Act for regulating the buildings, streets, wharves, and slips, in the City of New York,” passed April 16,1787, or by virtue of an act with the same title, passed April 3, 1801, and not refunded, or that should “ thereafter be assessed by virtue of this act, shall be a lien or charge upon the houses and lots in respect to which such assessments shall have been made, and shall bear lawful • interest until paid, and shall be entitled to a preference before all other incumbrances on the same, and may be sued for and recovered in Wee manner, as if the said houses and lots were mortgaged to the Mayor, Aldermen and Commonalty for the payment thereof: Provided always, that nothing herein contained shall extend to charge any such houses or lots, which may have been bond fide sold and disposed of after the making of such assessment therein and before the 3d of April, 1798.”

By reference to the two acts recited in the preceding part of this section it will be seen that sums assessed by virtue of those acts “for regulating and altering,” “pitching and paving,” and “ the altering, amending, cleansing and scorning of any street ” within the city, are, by the express terms of § 6 of the act of April 3,1801, not only made liens and charges on the houses and lots assessed, having a preference before all other incumbrances upon the same, but it is declared that they may be sued for and recovered with costs, in like manner as if the said houses and lots were mortgaged, &c., for the payment thereof: (§§ 1 and 4 of act of April 16,1787, and § 6 of act of April 3, 1801.)

The act of 1787 made provision for ascertaining and assessing upon the owners and occupants of houses and lots to be benefited by the “ altering and amending of any street, the expenses of the improvement, and for the collection of the same by distress-wnrrant”—(§ 4 of id.)

The act of 1801 has the same title as that of 1787, viz. “ An Act for regulatmg the Buildings, Streets, Wharves and Slips in the City of New York.”—The 6th section of the act of 1801 is in the same terms as the 223d section of the act of 1813. The 1st section of the act of 1801 declares in the broadest and most unqualified terms that every sum that should- thereafter be assessed by virtue of that act, among the owners or occupants of any houses and lots, might be sued for and recovered in like manner as if said houses and lots were mortgaged for the payment thereof. It also made the same provision with respect to every sum previously assessed under the act of 1787. But it provided, as § 223 of the act of 1813 does, that any such houses or lots, bond fide sold and disposed óf before the 3d of April, 1798, should not be affected or charged by any assessments prior to the last named date. The cause of this proviso and the reason of fixing upon the date of April 3d, 1798, are found in the fact, that the fourth section of the act of April 3d, 1798, entitled “ An Act concerning certain streets, wharfs and piers, and the Alms-house, and Bridewell in the City of New York,” provided that the sums to be expended under the latter act as therein provided, and also all and every sum and sums of money, which have been or shall at any time or times hereafter be assessed among the owners or occupants of any houses and lots by virtue of the said act entitled “An Act for regulating the buildings, streets, wharves ahd slips, in the City of New York” (being the act of April 3d, 1787), shall be a real incumbrance, &c.” (the residue of the section being in the precise language of § 223 of the act of 1813, excepting that the proviso of the act of 1798 declares that nothing contained in it, “shall extend to charge any such houses or lots, which may have been bond fide sold and disposed of, after the making of such assessment thereon, and before the passing of this act).

This act made all assessments, whether prior or subsequent, for the regulating and altering of streets, under and by virtue of the act of 1787, a first lien on the houses and lots assessed, and provided for their collection as if such houses and lots had been actually mortgaged for the payment thereof. The fourth section of it, which contains this provision, is the same in terms as § 6 of the act of 1801, and § 223 of the act of 1813. The exemption contained in the proviso of each operates upon sales band fide made before the date of April 3rd, 1798.

From the 3rd of April, 1798, down to April 9th, 1813, whatever other remedies may have been provided for collecting assessments made upon houses and lots to defray the expenses of regulating streets, it is clear that the remedy invoked in this case was expressly given by § 4 of the act of 1798, and by § 6 of the act of 1801.

The act of 1813, as its title declares, was an act to reduce into “ one act” several laws relating particularly to the City of New York. The 223rd section of it is a copy of § 6, of the act of 1801. Construing it according to the natural and obvious meaning of its terms, it would be applicable to the assessment in question. Holding it to be applicable is holding that the law on this .point continued the same after the act of 1813 was passed, as it was prior thereto.

But if it be construed to embrace only such future assessments as should be made to defray the expenses of laying out “ wharves, piers and slips,” then it will not embrace every assessment which shall hereafter be made by virtue of this act, nor a large class of assessments to which it related by the express provisions of the act from which such section was copied. I perceive no good reason for giving to the words “by virtue of this act,” the restricted meaning they must receive if construed as if reading, “ by virtue of that part of this act relating to wharves, piers and slips only,” when that section, by the terms of the several laws so reduced to one act, related to and included assessments like the one in question.

I cannot resist the conclusion that this assessment by force of § 223 of the act of 1818, may be sued for and recovered in the same manner as if the premises on which it was imposed had been actually mortgaged to the plaintiffs for the payment thereof.

If that conclusion be correct, it would seem to follow as a matter of course that the plaintiffs are entitled to the same remedies by action, and to the same relief in it, as if a mortgage had been in fact executed: they would be entitled, unless some of the other grounds of defence are well taken, to such a judgment, as would be proper, if the assessment was secured by a mortgage of the lot assessed, and this was an action to foreclose such mortgage.

The act of February 21st, 1824 (47th session, vol. 6, c. p. 39), if still in force, may perhaps entitle the plaintiffs to the relief prayed for in this action, even if § 223 of the act of 1813, formed no part of the latter act.

The act of 1824 provides that §§ 270 and 271, of the ..act of 1813, “ shall apply to all and every the laws, ordinances, orders, and directions which the said corporation are authorized to make under and by virtue of cmy pari or section of the aforesaid act” (the act of 1813), “ or of any other act or acts of the legislature.”

Section 270 declares it to be lawful for the Corporation to cause all work, ordered by by-laws and ordinances relating to certain subjects,” to be executed at their own expense, on account of the persons on whom the same may be assessed, and § 271 declares any such expense which the Corporation may pay, to be a real encumbrance upon the houses and lots, in respect to which such assessments shall have been made, and to be recoverable in like manner as if the houses and lots were mortgaged to the Corporation for the payment thereof.

If, in point of fact, the work ordered to be done in “ widening and straightening John street, between Broadway and Pearl street, in the second ward of the City of New York,” and in respect to which the assessment now sought to be collected was imposed on the defendant’s lot, was done, and the expense of it paid by the Corporation, then the act of 1821 makes the expense a lien on the lots assessed, and recoverable as if such lots were actually mortgaged for the payment thereof. I do not discover that this act has been repealed. But whether it has been or not, I think the plaintiffs are entitled to recover for the reasons previously stated, unless some of the other objections urged against a recovery are well taken.

It is objected that, as the land was sold for enough to satisfy the assessment, and as the sale itself was regular, the payment by the purchaser of the amount of his bid satisfied the encumbrance, and that it is the fault or neglect of the plaintiffs that the redemption notice was not published at the proper time; that the lien was for a time at least actually discharged, and cannot be revived.

There was no effectual sale; that a title under it was not perfected cannot, on the papers before us, be attributed to any bad faith of the plaintiffs’ agents, nor to any want of efforts designed to comply with the law. It resulted from their erroneous construction of the law in relation to the time when the redemption notice should be first published. .

The defendant, so far as the papers disclose, has not been prejudiced by the ineffectual efforts of the plaintiffs to collect the assessment by a sale of the lots assessed; he has not been disturbed in his possession, nor in any other full enjoyment of his property for a day or an hour. It seems to me unreasona- , ble to hold that the plaintiffs ever received, even for a moment, absolute satisfaction for their debt. They received a conditional payment, and only that. Even that was lost by misjudging the law. (Doughty v. Hope, 3d Denio, 598.)

Hie plaintiffs have not, in fact, had actual satisfaction, and the defendant has not paid any part of the assessment, nor been injured by the abortive attempt made to collect it. Unless the debt is outlawed he is liable to pay it, and the lot assessed is yet encumbered by it.

It would be against the obvious policy of these acts to hold the debt outlawed. In the first place, the act of 1813 (§ 223) declares that sums theretofore assessed under the acts of 1787 and 1801, shall be first liens on the lots assessed, and that the sums assessed may be collected as if the lots were mortgaged for the payment thereof, and only such lots as were bona fide sold and disposed of before the 3d of April, 1798, are exempted from its operation. As against the original owner of the lot assessed, an assessment made in 1787, twenty-six years previously, would be a lien.

So section 4 of the act of April 3d, 1798, made assessments imposed under the act of 1787, liens of the same character, and collectable in the same manner, notwithstanding there was no similar provision in the act of 1787. The effect of this might have been to make assessments of more than ten years’ standing liens of like effect, and in respect to which the plaintiff would have the like rights and remedies, as in any case confessedly within § 223 of the act of 1813, subsequently arising. It is obvious then that it is no part of the policy of these acts to apply either six or ten years’ limitation to the liens created by such assessments.

It being against the obvious policy of the acts, no such rule of limitation should be applied, unless - required by positive law. The defendant’s property, according to the theory of these acts, has been exclusively benefited to the amount assessed on it. Neither he nor his property has paid it. It should not be paid by the great body of tax-payers, unless it is so provided by law.

This assessment is not technically a judgment, yet its validity, other things being regular, depends upon the question whether the report, ascertaining and fixing it, has been confirmed by the judgment of the Supreme Court, a court óf record. It is a case falling within the spirit and equity of the provision, respecting the presumptions of payment, applicable to judgments of a Court of Record.

The provision that the sums assessed “may be sued for .and recovered in like manner as if the said houses and lots were mortgaged to, &c., for the payment thereof,” may relate solely to the forms of proceedings by suit, and of the judgment to be rendered thereon, and not have been designed to indicate or imply that the lien should continue as long as if there had been an actual mortgage to secure the debt.

But I find no express statutory provision in the way of holding in conformity with the obvious policy of the acts, and the justice of the case, that the presumption of payment shall not operate as a bar within a less period than that within which it can be applied to judgments of courts of record or mortgages of real estate.

On the whole case, I am of the opinion that the judgment appealed from should be reversed, and such a judgment rendered for the plaintiffs as would be proper in a suit to foreclose an actual mortgage of the lot in question, executed to secure the assessment now sought to be recovered.

Emmet, J., concurred.—Judgment for plaintiffs with interest and costs.


author: By the Court. Campbell, Justice.

text:
    Carr v. Roach.
    (Before Campbell, Bosworth, and Emmet, J.J.)
    December 10, 1862;
    February 26, 1853.
    A covenant in a contract for the sale of lands that the premises “shall he free and clear from encumbrances,” if a conveyance is thereafter delivered to, and accepted by the purchaser, is merged in the deed.
    If an incumbrance is thereafter found to exist, which the purchaser is forced to satisfy, his sole remedy is against his grantor upon the covenant in the deed.
    These rules apply, even where the agreement to sell the lands is made by one person, and the deed is given by another, and when the agreement contains a provision that the consideration is not to be paid until “ it can be ascertained that the title to the premises is good, and unencumbered.”
    Such a provision makes it the duty of the purchaser to examine the title before he accepts the conveyance, and is evidence of the understanding of the parties that the delivery and acceptance of the deed covenanted to he given, would be a fulfilment and discharge of the agreement.
    Upon these grounds a verdict taken for the plaintiff, subject to the opinion of the court, set aside, and a verdict and judgment thereon entered for the defendants.

      The action was brought to recover damages for the breach of a covenant in an agreement between the parties for the sale and conveyance of a house and lot in the city of New York. It was tried before Mr. Justice Sandford and a jury, in May, 1851.
    The following are the material facts proved on the trial— The plaintiff and defendant, on the 10th of September, 1851, signed and sealed a memorandum of agreement whereby the defendant agreed to sell and the plaintiff to buy the premises known as Ho. 34 West 19 th street in the City of New York for the sum of $14,009- The property to be conveyed subject to a mortgage, and the balance to be paid by plaintiff “ as soon as it can be ascertained that the title to said premises is good and unencumbered except as above stated, and upon a production to him of a good and satisfactory warranty deed executed in due form of law.” The defendant on his part covenanted and agreed “ that the said premises shall be free and clear from all encumbrances save the said mortgage, and that he will procure and deliver to the said party of the second part a good and satisfactory warranty deed for such premises subject as aforesaid.”
    On the 15th day of Hovember, 1851, a deed of the premises was executed by one John Lovejoy to the plaintiff’s wife, and which deed was dated on the 4th of June, 1851, and contained no covenant except against grantor’s own acts, that he had not done or suffered anything to be done by which the premises were or could be encumbered. The legal title was in Lovejoy. The defendant acted as agent for the firm of Henry and Meyer, who were the equitable owners. The deed was delivered and accepted by Carr without objection.
    In July, 1851, after the date, but before the delivery of this deed, a tax was imposed upon the premises, which the plaintiff paid, and alleges he was compelled to pay.
    He claimed to be entitled to recover as damages the amount so paid with interest. When the testimony was closed, there being no disputed facts, the judge ordered a verdict to be entered for the plaintiff for $129.34, the damages claimed, subject to the opinion of the court upon a case to be argued at general term, with the usual liberty to turn the case into a special verdict or bill of exceptions.

      J. E. Burrill, for plaintiff.
    I. The agreement on which the action is founded, was not discharged by the execution of the deed. 1. The covenant made by the defendant, that the premises shall be free and clear from all encumbrances, is a personal independent covenant, and distinct from his covenant to procure a deed for the property. 2. The defendant was not the owner of the property, as the parties well knew, and his covenant was an additional security to the plaintiff. 3. The deed was not executed by the defendant, nor has he executed any instrument subsequent to the agreement. The defendant is not liable on the deed, but only on the agreement. 4. The deed was not executed to the plaintiff. He has no individual right of action from the deed. 5. The deed contains no covenant against encumbrances— which shows that the covenant of the defendant was not intended to be discharged. (Bogart v. Buckhalter, 1 Denio, 175.)
    II. The plaintiff was not a stranger, nor the payment by him voluntary, but it was in law compulsory. 1. Plaintiff, by the agreement, assumed the payment of the mortgage of $8,600, and the existence of prior encumbrances increased his responsibility and risk. 2. Taxes, though imposed subsequently to a mortgage, have a priority of lien, and the mortgagee on paying them, is entitled to recover them from the mortgagor, or the party representing him. 3. The plaintiff paid the consideration for the deed, and whether the deed was executed to his wife as a gift or as a purchase, it was done at the request of the plaintiff and under the assumption that it was unencumbered, and he had a right to have his intentions or his agreement carried out or fulfilled. 4. The plaintiff, as husband of the grantee, had sufficient interest in the property to pay off an encumbrance. He is entitled to judgment upon the verdict, with costs. .

      J. Graham, for defendant.

      I. The agreement for the sale of the property was a memorandum of what the parties were to do. It stipulated for a specific kind and time of execution. If not executed as required, it was then broken; but if the plaintiff chose to receive a different kind of performance as and in execution of it, the defendant’s covenant was discharged. To have entitled himself to sue the defendant upon his original covenant, he should have put him m the position of refusing a strict performance of it—i. e. in giving such a deed as was required.
    II. The agreement was merged in the execution of the deed* to the plaintiff’s wife. Such a departure from the original platform, not only as to the person of the grantee or vendee, bnt as to the form or kind of conveyance, operated its entire destruction. It was a complete waiver of it.
    III. Even if the agreement could be made the basis of the present action, it imposed a duty upon the plaintiff of ascertaining whether the property was clear and .unencumbered; and any oversight on his part was at his risk. The whole agreement is to be looked at, and its intention (which was plainly this) is to be carried out.
    The defendant agrees, “ as soon as it can be ascertained that the title, &c., is good and unencumbered, &c., and upon production to him (the plaintiff) of a good and satisfactory warranty deed,” &c. The plaintiff stipulates for the right to judge of the sufficiency of the title, aliunde the deed, and also of the sufficiency of the deed in form, and this before he is under an obligation to receive the property.
    It is plain the plaintiff intended to have something more than the covenant of the defendant, that the title should be good. Suppose the title to have been bad, and still a warranty deed to have been tendered, would the plaintiff have been bound to receive it, and pay the consideration ? How, then, can he hold the defendant liable on the original agreement, when, by taking a deed at all, he pronounces the title to be good and satisfactory ?—or satisfactory—that is enough.
    IV. If the plaintiff is correct in his position, he has got more than the agreement called for; for, according to him, the defendant is liable to him under the covenants in the agreement, and the grantor in the deed (Lovejoy) is liable to his wife on the covenant in that instrument.
    We say that by taking the deed irom Lovejoy, every covenant in a warranty deed not in his was waived, and that his personal responsibility was substituted in the place of the defendant’s.
    V. The plaintiff, in paying the alleged tax, did so in his own wrong. He was not the owner of the property, and his act was purely voluntary. He had no legal interest of any description to protect.
    For cases where a party has been allowed to recover money paid under coercion, see De Lavergne v. Morris, 7 Johns. 358. Hall v. Dean, 13 Johns. 105. Stanard v. Eldridge, 16 Johns. 254.
   By the Court. Campbell, Justice.

In Houghly v. Lewis, 10 John. 297, it was said by Mr. Justice Thompson, in delivering the opinion of the Court, that “ parties may no doubt enter into covenants collateral to the deed, or cases may be supposed when the deed would be deemed only a part execution of the contract, if the provisions in the two instruments clearly manifested such to have been the intention of the parties.” And the same learned judge had before said, in Harris v. Barker (3 John. R. 509), that “ the deed cannot be considered as an execution of the contract in part only. If an execution at all, it must be of the whole contract, and the articles of agreement are a nullityand this was the doctrine held by him in HoughI/j v. Lewis. Indeed the general principle is well settled that all negotiations between the parties prior to or contemporaneous with the execution of a deed are merged in it (Patterson and others v. Hull and others, 9 Cowen, 747). I am inclined to think that the true distinction was taken by Justice Welles, in Bull v. Willard, 9 Barbour, 641, that in all cases the execution and delivery of the deed operate as a merger of the contract on the part of the grantor except where the covenants in the contract are collateral and independent, and not such as look to the title, possession, quantity, or emblements of the land.

In this case, as in Bull v. Willard, there was a tax on the property—a lien on the premises to be conveyed. It does not appear that the defendant had any knowledge of it. He had agreed to procure and deliver a good and satisfactory warranty deed. He procured and delivered a deed containing a covenant against the grantor’s own acts, and it was accepted by the plaintiff. It appears to have been satisfactory to him, as no objection was made by him or his attorney who was present at the time of the delivery of the deed.

The counsel for the plaintiff relied upon the case of Bogart v. Buckhalter (1 Denio, 125). But that case simply determines that a conveyance by the vendor does not operate to relieve the vendee from his covenants contained in the agreement. The performance of a contract by one party to it is not in judgment of law a performance by the other. The general principle then deducible from all the cases in this State would seem to be this, that where there is a contract for the conveyance of land and a deed is subsequently executed and accepted by the vendee, it operates, so far as the vendor is concerned, as an execution and merger of the contract, except there may be covenants in the contract which are collateral, and not connected with the title, possession, or quantity of the land. But on the other hand, the acceptance of the conveyance does not discharge the vendee from his covenants in the contract. He may still be liable as in the case of Bogart v. Buckhalter, to erect a brick house on the lot which he had stipulated to do by the terms of his agreement to purchase. ' He might still be compelled to pay the purchase money, if it remained in whole or in part unpaid after the execution of the deed, and this according to the amount agreed upon in the contract. In the case before us there is no hardship in the application of the rule. The defendant, it seems, acted as agent. He was to procure and deliver a deed. The plaintiff was to pay as soon as it “ can be ascertained that the title to said premises is good and unencumbered.” The contract contemplated that the plaintiff should examine and ascertain whether the title was good, and whether the premises were unencumbered. The lien in question was a recent tax, and its existence could easily have been ascertained. It might be a great hardship under such circumstances to hold the defendant liable upon his contract when a deed has been given and accepted without objection, and when the agent may have settled and paid over the proceeds to his principal. It is unnecessary under this view to consider whether the plaintiff having himself no title to the premises, the same having been conveyed to his wife, can bring an action on the contract, he not having been compelled to pay the same.

We think that the. verdict for the plaintiff must be set aside, and a verdict and judgment thereon be entered for the defendant with costs.