author: MbbwiN, J.:

text:
    Catharine C. Ellerson, Appellant, v. Elizabeth P. Westcott and Cora P. Ganung, Respondents, Impleaded with Others.

      Partition — what issues are triable — joinder of causes of action — allegation that a devisee procured the death of the testator joined with one that a devise is void — not a ground of demurrer for misjoinder.

    All questions arising between parties in regard to tlieir respective titles and rights of possession in real property may be determined in an action of partition under the provisions of sections 1587 and 1543 of the Code of Civil Procedure.
    Where an action of partition is brought by an heir of a testator, based upon an allegation that an apparent devise to others is void because the will in question was not properly executed and was not the free act of a competent testator, the court may properly try in the same action the issue presented by an allegation that a devisee under the will procured the death of the testator and is, therefore, not entitled to take under the will.
    The apparent devise is a cloud on the title, and the plaintiff has a right to have it removed, if possible.
    An allegation that a person procured the death of the testator involves only the question as to the capacity of the party to take under the will and is to be treated like any other question of capacity.
    A complaint in partition containing such an allegation is not demurrable upon the ground of a misjoinder of causes of action.
    Appeal by the plaintiff, Catharine C. Ellerson, from an order of the Supreme Court, made at the Chenango Special Term and entered in the office of the clerk of the county of Otsego on the 18th day of February, 1895, denying her motion for leave to serve an amended complaint.

      The denial of the motion was, as stated in the order, “ upon the ground that in this action, which is an action of partition, the plaintiff cannot join therewith a cause of action such as she proposes to introduce by said amended complaint, to wit, an action to declare forfeited defendants’ rights claimed under the will, and because the proposed amended complaint would render the complaint demurrable for misjoinder of cause of action, and the motion is not denied upon the ground that the granting thereof is discretionary with the court.”

      A. D. Wales, for the appellant.

      Gilbert ds Andrus, for the respondents.
   MbbwiN, J.:

In the complaint it is alleged that on the 9th of May, 1891, Munroe Westcott, of Oneonta, N. Y., died, being then seized in fee of a large quantity of real estate, which is in the complaint fully described ; that the plaintiff is the sister of said Westcott, and that she and certain of the defendants, who are the children or descendants of another sister, constitute all of his heirs and next of kin; that soon after his death a paper, purporting to be his last will and testament, was produced by the defendant Elizabeth P. Westcott, in and by which the testator, after devising three pieces of real estate to certain parties, devised the use of all the rest of his real estate to Elizabeth P. Westcott as long as she should live, and at her death directed that all the property left should be under the control of the defendant Ganung for the purpose of establishing and founding a hospital at Oneonta; that the will was afterward admitted to probate by the surrogate of the county of Otsego, and letters testamentary thereon issued to the defendants Westcott and Ganung, two of the executors therein named, and that they have taken possession and assumed the control of the real and personal estate, claiming the right to do so as executors, and claiming rights and ownership in the property individually, as legatees and devisees under the provisions of said instrument; that the paper so admitted to probate is not the last will of the deceased; was not executed in the form and manner required by law, and that the deceased, by reason of mental infirmity, was incompetent to make a will, and that the same was procured by undue influence and frai\d ; tliat the alleged “will is not a valid instrument, but is void for uncertainty, and also in that it unlawfully suspends the power of alienation and attempts to create an invalid trust, and that none of the persons named as devisees acquired any rights in the property by virtue thereof ; that the plaintiff, as lieir at law of the deceased, is seized in fee simple of an undivided one-half of the real estate, and the other heirs at law are seized of the balance in the manner therein specified. Judgment is asked that the alleged will be declared null and void; .that the plaintiff and the other heirs at law be declared the lawful owners of the real property and that partition be made.

The amendment asked for consisted in inserting just before the demand for judgment an allegation that the defendant Elizabeth F. Westcott willfully, wrongfully and unlawfully, for the purpose of realizing under the alleged will, by the use of drugs, medicines, poisons, or other means, the exact particulars of which are unknown Ito plaintiff, caused and procured the death of said Munroe West-cott, and, therefore, is not entitled to take under the will.

The question here is, whether the plaintiff has in any event the right to have the issue, presented by the amendment, tried and disposed of in this action.

If the facts alleged in the amendment are true, the plaintiff in the proper forum has, according to the law laid down in Riggs v. Palmer (115 N. Y. 506), the right to have it adjudged that the devise to Mrs. Westcott is ineffective to pass to her any title, and that the plaintiff and the other heirs at law are, so far as any claim of Mrs. Westcott under the will is concerned, the true owners of the real estate left by the testator. That was the form of the adjudication in the Higgs case, which involved precisely the issue presented here. It follows, therefore, that the ownership and title of the property cannot be fully determined until the issue in question is disposed of.

Section 1531 of’the Code is as follows : “A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died, holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent and possession under such devise. But in such an action the plaintiff must allege and establish that the apparent devise is void.”

Section 1543 is as follows : “ The title or interest of the plaintiff in the property, as stated in the complaint, may he controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty-one of this act. The issues, joined as prescribed in this section, must be tried and determined in the action.” By section 1544 provision is made for a trial by jury of an issue of fact joined in the action.

Under these provisions it lias been said that all questions arising between the parties in respect to the property, as to their respective titles and rights of possession, may be determined. (Weston v. Stoddard, 137 N. Y. 119; Collins v. Collins, 36 N. Y. St. Repr. 591; affd., 131 N. T. 648; Shannon v. Pickell, 2 N. Y. St. Repr. 160; Throop’s notes to art. 2, tit. 1, chap. 14 of the Code.) This would seem to be a rational view of the provisions of the Code. As said in the Weston case (p. 128): Circuity of procedure and a multiplicity of suits are thereby avoided, and these were the primary objects which the Code system of practice had in view.” In the Weston case it was held that a disseized co-tenant might bring the action. The action may be maintained notwithstanding an adverse possession. (Hewlett v. Wood, 1 Hun, 479; 62 N. Y. 78; Maloney v. Cronin, 44 Hun, 270.) In the Mala,ney case an issue was whether the will was procured by undue influence. In the Hewlett case (see 3 Hun, 736; 1 id. 478) the issue was over the mental capacity of the testator as well as undue- influence. A devise to one who is incompetent to take is void. (Hall v. Hall, 13 Hun, 309.) In the case cited it was held that under section 2 of chapter 238 of the Laws of 1853, which was similar to section 1537 of the Code, an action of partition could be brought by the heirs of a testator who had devised the property in controversy to one who was incompetent to take by devise, because of alienage, and the question as to such incompetency be disposed of in the action.

The plaintiff in the present case in her original complaint alleges generally that she and the other heirs at law of the deceased are the owners in fee of the property; that the apparent devise is void, for the reason that the will was not properly executed, and was not the free act of a competent testator. It is also alleged that the residuary devise to Mrs. G-anung is void upon its face for certain specified reasons. By the amendment the .plaintiff seeks to, further allege that the devise of the life estate to Mrs. Westcott is also void by reason of her incapacity to take, the cause of which is set forth. With this amendment the allegations reach the entire ownership as claimed under the will. So that under the complaint, as amended, the validity of the devise of the entire title is attacked on two grounds, first, for reasons going to the whole will, and, secondly, for reasons affecting only the real estate in question.

Under section 1531 the plaintiff must allege and establish that the apparent devise is void. There is no limitation as to the causes or reasons that may be alleged. There is no prohibition against alleging all the grounds that may be claimed to exist. On the contrary, it would seem to be necessary that all should be alleged that the party desires at any time to take advantage of. The final judgment is conclusive (§ 1551), and, in case of sale, it effectually bars each of the parties who is not a purchaser at the sale from all right, title and interest in the property sold. (§ 1517.)

It is suggested that the amendment involves a cause of action not triable in an action of partition. It is certainly novel in its character, but, under the decision of the Riggs case, it involves simply the question of the capacity of the party to take, and is to be treated as any other question of incapacity. The cause of action here is for partition, and, as incident to it, the plaintiff has the right to remove the obstructions or clouds caused by the apparent devise. (Henderson v. Henderson, 44 Hun, 420.) It is said that Mrs. Westcott has not been criminally tried or charged, but her incapacity to take does not, under the Riggs case, depend upon her trial or conviction, but rrpon the existence of the fact itself.

The fact that some of the other parties may not be interested in this question is not an answer to the application for amendment. Yery clearly the Code contemplated that the rights of different defendants may not stand upon the same basis. (§§ 1538, 1543; Townsend v. Bogert, 126 N. Y. 370.)

Ye are, therefore, of the opinion that neither of the grounds, specified in the order appealed from as the grounds upon which the motion was denied, is sustainable. The court had the power to allow the plaintiff to allege another ground on which the devise to Mrs. Westcott was void. The amendment was, under the circumstances of the case, somewhat in the discretion of the court, and as that has not been exercised, the order should be reversed and the proceedings remitted to the Special Term for further hearing.

Hardin, P. J., and MartiN, J., concurred.

Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term for further action.


source: Caselaw Access Project

author: MeewiN, J.:

license: Public Domain

text:
    Sherman B. Mosher, Plaintiff, v. The Supreme Sitting of the Order of the Iron Hall, Respondent. William H. McDonald, Appellant, v. The Supreme Sitting of the Order of the Iron Hall, Respondent. William H. McDonald, Appellant, v. Binghamton Trust Company, Receiver, etc., Respondent.

      JBeceiver — assets in Ms hands not subject to attachment — a judgment creditor, who has not a lien, stands on an equality with simple creditors.

    Where a temporary receiver of a foreign corporation, engaged in mutual benefit life insurance, lias been appointed, in the State of New York, and his receivership is subsequently merged in a permanent receivership, there is no point of time when the lien of an attachment, procured subsequently to the appointment of the temporary receiver by a certificate holder who has recovered judgment against the corporation, can attach to the funds of the corporation.
    Whether or not the temporary receiver has taken actual possession of all the assets of a corporation at the time when an attachment is issued, the property of the corporation must be deemed to be in the custody of the law at all times after his appointment, and, therefore, cannot be attached.
    Unless a judgment creditor of a corporation for which a receiver has been appointed has acquired a statutory lien upon its assets prior to the appointment of the receiver, he is not entitled to a preference over other creditors, and his rights as creditor must be worked out through the receivership.
    Appeal by William H. McDonald, the plaintiff in tlie action secondly above entitled, from an order of the Supreme Court, entered ill tlie office of tbe clerk of tlie county of Broome oil tlie 24th day of July, 1894, denying liis motion to compel tlie Binghamton Trust Company, permanent receiver of Tlie Supreme Sitting of tlie Order of tlie Iron Hall, to pay a judgment recovered against it by Mm in said action.
    Tbe first above-entitled action is tbe one in which the permanent receiver was appointed.

      Soger P. Ciarle and Edward JP. Qla/rk, for tbe appellant.

      Ed/rmmd O' Connor and Tmglor L. Arms, for the respondent.
   MeewiN, J.:

Tbe defendant, “ The Supreme Sitting of the Order of the Iron Hall,” is a foreign corporation, duly incorporated in 1881 under the laws of tbe State of Indiana, and having its legal location at Indianapolis in that State. It was in tbe nature of a mutual and co-operative association, and its object, as stated in its articles of association, was to improve tbe condition of its membership morally, socially and materially, establish a “ benefit fund from which members of tbe said order, who have complied with all its rules and regulations, or the heirs of such members, may receive a benefit in a sum not exceeding one thousand dollars ($1,000), which'shall be paid in such sums and at such times as may be provided by the laws governing such payment, or in the certificate of membership, and when all the conditions regulating such payments have been complied with; ” also-to establish a life fund from which, under certain conditions, a sum. not exceeding $3,000 should be paid upon the death of a member who had been duly admitted to membership in that fund. Benefit certificates were provided for, calling for the payment of a specific-sum out of the benefit fund after a continuous membership of seven years. Provision was made for the organization of branches and the issuance to them of charters. The revenue of the supreme body was derived from charter and registration fees, profits on the sale of paraphernalia and supplies, and from such per capita tax as may be levied at each regular session of this body or at a special session called for the purpose.” The benefit fund was apparently made up from assessments. Each branch was to attend to the collection of' the assessments on its members, and retain in its hands as a reserve fund twenty per cent thereof, of which it had the supervision and management although it belonged in fact to the corporation.

On the 17th day of August, 1885, a benefit certificate was issued to "William H. McDonald m the sum of $1,000, payable on the 17th of August, 1892, less such sums as may have been previously advanced, and at that date McDonald claimed there was due thereon the sum of $500. He thereupon commenced in the Supreme Court an action against the corporation for the recovery, of that amount, and on the twenty-seventh of August obtained in due form an .attachment against the property of the defendant on the ground that it was a foreign corporation. This, at its date, was delivered to the sheriff of Broome county, and he, on the thirty-first of August, in form levied on certain moneys on deposit in the Binghamton Savings Bank to the credit of one of the branch orders of the corporation, and on the 1st of September, 1892, on moneys deposited in like manner in the Chenango Talley Savings Bank. These levies were made by leaving with each bank a certified copy of the attachment and a notice as required by law. The defendant corporation appeared in the action and answered, among other things denying its liability. The case was brought to trial, and upon the decision therein in favor of the plaintiff for the sum of $500 and interest from August 17, 1892, a judgment was entered on the 20th of February, 1894, against the defendant therein for the sum of $690.71, damages and costs. Upon this judgment an execution was issued, and the plaintiff therein and the sheriff are now trying to reach the •deposits upon which it is claimed the attachment was levied, and which were, on the 19th of July, 1893, paid over by the respective banks to the Binghamton Trust Company as receiver of the corporation defendant. This payment was subject to any lien that in fact existed under or by virtue of the attachment.

It appears that on the 23d day of August, 1892, in an action brought in the Superior Court of Marion county in the State of Indiana, by Albert B. Baker and others against the said The Supreme Sitting of the Order of the Iron Hall, for the purpose of dissolving the said corporation on the ground of insolvency and mismanagement and for the appointment of a receiver to take possession of its assets and distribute the same among the persons entitled thereto, an order and decree were made appointing James F. Failey receiver of tbe corporation and directing him to take and bold all the property whether within or without the State which the defendant had at the time of the commencement of the action on the 29th of July, 1892, or had since acquired, and the defendant, its officers and all its subordinate branches were directed to deliver over to the receiver all the property and assets of the corporation, and to make, execute and acknowledge any transfer in writing which the receiver should deem necessary or proper to more effectually vest in him the property and effects of the corporation, and any disposition of any of the property by any member or branch except to the receiver was restrained. (See Supreme Sitting of the Order of the Iron Hall v. Baker, 134 Ind. 293.) Afterwards, and on the 2d of December, 1893, a final decree was made by the same court, continuing the receivership and making it permanent. It was adjudged that the corporation was at the commencement of the action insolvent, and was unable to carry on the business for which it was organized, and that its assets and property should be reduced to money and applied upon its debts and outstanding obligations and liabilities.

On the 26th day of August, 1892, in an action brought in the Supreme Court in the city and county of New York by Moses K. Glines against the said corporation, an order was made at Special Term appointing George E. Glines temporary receiver of the assets and property of the defendant. This was made upon the summons and complaint in the action and affidavits and order to show cause, all of which were served ou defendant by service on one Cooper, who was shown to be the deputy supreme justice of the defendant and one of its managing agents. Mismanagement and insolvency were alleged as the basis of the action. It was brought by the plaintiff therein, who was a member of the order, in his own behalf and in behalf of all members of the order residents of the State, the number of whom was large, and its object was to protect the rights of the members within this State, and in that view obtain the appointment of a receiver of all the property and assets within this State, to hold and distribute the same, subject to the order of the court, among the said members. The order appointing the receiver directed him to take possession of all the property and assets of the defendant, collect and receive all moneys due it, and assume full control of tlie assets witli all the usual powers of receivers in like cases. The receiver duly qualified as such and filed his bond on August 27, 1892, and entered on the discharge of his duties.

On the 24th day of August, 1892, an action was commenced in the Supreme Court in the county of Broome by Sherman B. Mosher against the said corporation for substantially the same purpose as the action of Glines above referred to. The summons, complaint, notice of motion for • the appointment of a receiver and affidavit were on that day served on the defendant by serving at Binghamton ■on a trustee of defendant residing in this State. An injunction pending the motion was granted on August 25,1892, and on the same day similarly served on defendant. In pursuance of the motion at Special Term on September 9, 1892, the Binghamton Trust Company was appointed temporary receiver of the defendant, with power to receive and collect all the property and assets of the corporation within this State at the time of making the motion for a receiver on the 25th of August, 1892, cr since acquired, and hold the same under the order and direction of the court. The question whether the receivership should be ancillary to the receivership in Indiana was reserved for future order. In this action the defendant appeared and answered, a trial was had, and on the 2d of November, 1892, a final judgment was entered, continuing the receivership and making the temporary receiver permanent with the usual powers. A question arose as to the status of the temporary receivership of George E. Glines, and it was held (Glines v. The Binghamton Trust Co, 68 Hun, 511) that it was superseded by the permanent receivership. Accordingly Glines, in June, 1893, in pursuance of an order of the court, duly accounted and jjaid over to the Bing-hamton Trust Company as the permanent receiver, since which time the trust company has continued to discharge the duties of permanent receiver.

It will be observed that the receivership of Glines was prior in time to the McDonald attachment. This priority existed, although Glines as receiver may not have taken actual possession of all the assets. (Beach on Receivers, § 207.) By operation of the receivership the property was in custody of the law, and in such case the rule is that the property cannot be attached. (Drake on Attachment [7th ed.], § 251.) The court in which the receiver was appointed might, perhaps, have given leave to levy the attachment (Webster v. Lawrence, 47 Hun, 565), but that was not clone. The receiver, as the hand of the court, kept the legal custody until it vested in the permanent receivership. There was no point of time at which the lien of the attachment could attach. The property all the time was in the custody of the law. The Glines receivership was not abandoned, but it was asserted until it was absorbed by the permanent receivership.

But it is claimed that the appointment of Glines was void for want of jurisdiction. A motion at Special Term to vacate the order of appointment on the ground that the defendant was not properly served with process was denied. (Glines v. Supreme Sitting of Order of Iron Hall, 20 N. Y. Supp. 275; affd. at General Term, 21 id. 543.) In Glines v. Binghamton Trust Co. (supra) the General Term were evidently of the opinion that the appointment was authorized by section 713 of the Code. In some cases it has been held that a court of equity has inherent power to appoint a receiver of property of corporations in order to preserve it for the benefit of the parties in interest and to abide the direction of the court. (Beach on Receivers, §§ 404, 405.) A distinction is made between a receiver of the property and a receiver of the corporation. Be that as it may, we are of the opinion that the view of the court in Glines v. Bing. Trust Co. (supra) should be followed here, and that the appointment of the temporary receiver was valid, so far as the present proceeding is concerned. It follows that the appellant had no lien by virtue of his attachment.

It is further claimed by the appellant that by virtue of his judgment he has an established debt against the coloration (Pringle v. Woolworth, 90 N. Y. 502) and is entitled to have it paid out of assets in this State. If there was a lien by virtue of the attachment that might be so. ( Willitts v. Waite, 25 N. Y. 577; Barth v. Backus, 140 id. 235.) But in the absence of a lien the rights of a creditor must be worked out through the operation of the receivership.

In the papers before us there is a stipulation that at the hearing of the motion upon which the order appealed from was made, “ an 'order was made, upon the petition of the local branches of defendant in the State of New York, in the action of Sherman B. Mosher, for the Binghamton Trust Company, acting as receiver, to turn over to James F. Failey, the Indianapolis receiver, the funds of the defendant in the hands of said trust company, except, and it was then ordered that said trust company retain sufficient funds to pay the above-named judgment creditors in case they ultimately succeed in their motions to compel or obtain payment of their claims out of the funds attached in their above-entitled actions.” The judgment creditors referred to in the stipulation are McDonald and two others similarly situated. The order referred to is not appealed from, and its propriety is not for us here to determine. It is stated in the appellant’s points that the transfer has been made as provided in the order. The stipulation seems to indicate that the claim of the judgment creditors was based solely on their attachments. Assuming that the appellant has a debt payable in preference to the claims of members upon benefit certificates not matured, it is not shown that the fund in this State was sufficient to pay in full all similar claims in this State. Nor is any basis presented from which it can be determined how much they should receive. It is not clear that the maturity of the appellant’s certificate on the 19th of August, 1892, gave him a preference over certificates not then matured. Clearly the corporation was then insolvent. All the members having certificates had contributed to the benefit fund, and as a general rule such a fund will be distributed pro rata among those who contributed in proportion to the amounts respectively paid in. (2 Bacon on Ben. Soc. § 479a.) This question, however, need not be passed upon here. "We must here assume that in the order of transfer above referred to the rights of all parties were properly protected.' The court no doubt in a proper case would have power to' mate such an order (Buswell v. Order of the Iron Hall, 161 Mass. 224; Bacon on Ben. Soc., supra), and we must assume that it was properly made.

We find no good reason for disturbing the order appealed from and it should be affirmed.

HaediN, P. J. and Martin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Clara J. Brown, Respondent, v. Sally Allen and Others, as Administrators, etc., of Emory Allen, Deceased, Appellants.

      Sale of real estate — emotion after timber thereon has been cut — measure of damages — %ohen interest begins to run — insufficient proof of abandonment or surrender.

    In an action brought upon a bond given in 1870, conditioned for the payment of a part of the purchase money of certain real estate conveyed at the time to the obli-gors by the obligee by warranty deed, a defense was interposed to the effect that the title failed subsequent to the said conveyance because the premises were sold for taxes which were assessed upon the premises prior to the conveyance.
    It appeared upon the trial that the principal value of the land was in its timber, a large part of which was cut by the grantees before the tax sale which occurred in September, 1871; that for more than two years thereafter no one was in a position to interfere with thoi possession of the grantees; that the value of the land as timber land did not alter materially ; that there never was an actual eviction, but that constructive eviction resulted in 1886 from the proceedings of the Forest Commission.
    Upon an appeal by the defendants, upon questions relating principally to the measure of damages and the manner in which the payments or deductions were applied, from a judgment directed in favor of the plaintiff,

      Held, that the plaintiff was entitled to recover a sum which bore the same ratio to the purchase price which the value of the land, as the land stood at the time of the eviction, bore to the value of the land when all the timber was upon it;
    That the sum thus credited on the bond should, for the purpose of calculating interest, be applied as of the date of the eviction in 1886 ;
    That a finding of the court that in 1874 the grantees notified the grantor that they had surrendered and abandoned the premises in question because of the tax sale in 1871, not coupled with any finding that they did then actually abandon or surrender them, taken in connection with the fact that no assertion of title adverse to the grantees was made by any one until after the passage of the Forest Commission Act in 1885, made it impossible to hold as matter of law that the eviction took place in 1874 or at any date earlier than the eviction effected by the Forest Commission in 1886.
    Appeal by the defendants, Sally Allen and others, as administrators, etc., of Emory Allen, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 18th day of December, 1894, upon the decision of the court rendered after a trial at the Lewis Circuit before the court without a jury.
    The action was brought upon a bond, dated May 24, 1870, executed by Emory Allen and Newton Northam to Marietta L. Brown, conditioned for the payment of the sum of $2,500, which was a portion of the purchase price of certain real estate that day conveyed to the obligors by the obligee by warranty deed. The defense interposed was that the title to the real estate afterwards failed by reason of the sale of the premises for taxes assessed prior to the conveyance, so that there was a failure of consideration or should be a recoupment for the damages.
    The opinions on prior appeals will be found in 57 Hun, 219, and 73 id. 291.

      Hervry W. Bentley and E. MeOa/rty, for the appellants.

      ü. D. Adams, for the respondents.
   MeewiN, J.:

When this case was last before us we considered the question whether the trial court was justified in finding that the consideration for the boird in suit had totally failed, and, therefore, the plaintiff was not entitled to recover. It appeared that the grantees in the deed while in possession of the property removed from the land a large portion of the standing timber, which constituted the chief value at the time of the sale. Upon this situation it was then said: “We are of the opinion that the eviction in this case was but partial. The most valuable part of the real estate purchased had been enjoyed by the purchasers, and they have reaped the benefit of its removal and sale. Under such circumstances the damages to be allowed them or their representatives should be only those that are commensurate with the eviction and their consequent loss. If allowed such part of the original price as bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber they would receive all to. which they are justly entitled. If some portion of the timber was removed after the title failed, as to that they might be liable to the present owners, and to that extent entitled to be allowed its value in addition to the proportionate value of the land. We think the court erred in holding that the eviction of Allen and Northam was total, that the whole consideration for the bond had failed and that the plaintiff was not entitled to recover thereon.”

In tbe decision now under review it is found tliat the eviction was on or about January 1, 1886; that the whole value of the premises at that time, and in July, 1874, was the sum of $1,011.42; that the whole value at the time of the purchase in May, 1870, was the amount of the purchase price, being the sum of $3,171.40. There was also evidence tending to show, and from which it might have been found, that the value in 1874, and up to 1885 or 1886, with the timber on it as it.was in 1870, would have been about the same as it was in 1870. The court allowed the defendants as damages, for the loss sustained by the eviction, the sum of $1,071.42, and applied it on the bond as of January 1, 1886.

The evidence sustains the finding as to the amount of the value in 1874 and 1886, and its amount as appears from the findings, or may be inferred from the evidence, bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber on. The appellants, however, claim that the amount should be applied on the bond as of its date on the theory that there was a failure of the consideration to that amount. The failure did not occur-or was not complete until eviction, and up to that time the grantees had such enjoyment or use of the whole property as was contemplated by the parties at the time of the grant. A large portion, at least, of the timber was cut by them before the tax sale on September 23, 1871, and for more than two years thereafter no one was in position to interfere with their possession whatever it was. It has been held that without eviction there would be no defense to an action for the price. (Lamerson v. Marvin, 8 Barb. 9; Farnham v. Hotchkiss, 2 Keyes, 9.) In some cases it is said that if the damages recoverable are equal to the purchase money and interest sought to be recovered, there is in substance a total failure of consideration, and it might be so pleaded. (Tallmadge v. Wallis, 25 Wend. 116.) In Cowdrey v. Coit (44 N. Y. 382) the main question was whether there was an eviction, and, if so, the same result was deemed to follow whether the defense was regarded as a failure of consideration or a counterclaim for damages. It was alleged in both aspects. In Dunning v. Leavitt (85 N. Y. 30) the grantee received nothing, as the rents while she was in possession were in law received to the use of the .real owners of the land. 'These cases do not, we think, reach the present one. It is not here a question of the failure of considera-' tion, but what is the proper amount to be allowed for the loss to the grantees, and that being ascertained, from what time should interest be allowed. Assuming the amount was properly ascertained, the interest, was, in effect, allowed from the date of the eviction as found: Interest runs only from the time of the eviction or loss, unless there is a liability to the real owner for mesne profits prior to that time. (3 Sedgwick on Damages, § 981.) There is no claim here that there is any such liability for mesne profits. So that when the defendants were allowed the amount of the loss as of the time it occurred, that would seem to be full compensation.

But the appellants further claim that, although the finding of the fact of eviction January 1,1886, would be correct under our decision on the first appeal, still under the facts as here presented it should be held that, as matter of law, eviction took place as early as July, 1874. It is found by the trial court, that in the month of July, 1874, said Emory Allen and Newton Northam, through their agents, duly notified said Marietta L. Brown and this plaintiff, and her agent and attorney in that behalf, that they had surrendered and abandoned the premises conveyed to them under the Brown deed aforesaid, because of the tax sales thereof, made September 23, 1871, as hereinbefore set forth.” It is not found that Allen and Northam had then in fact abandoned or surrendered the premises. At that time there was no one asserting title adverse to them, and their possession had in no way been interfered with. The premises consisted of six parcels. The tax sale was in September, 1871. A deed of one of the parcels was executed by the Comptroller to one Hungerford on October 30, 1873. A deed of four other of the parcels was executed by the Comptroller to the People of the State on February 1, 1875. No deed of the sixth parcel seems to have ever been executed under the tax sale of 1871. No assertion of title appears to have ever been made under the deed to Hunger-ford, and none under the deed to the People until 1885 by the Forest Commission. It appears that the purchaser of the sixth parcel some time after the fall of 1878, but when it does not appear assumed to sell the hard wood on the lot. In October, 1877 all of the parcels were again sold for taxes that had been assessed in or before 1870; all were bidden in by the State, and deeds under this sale were executed to tbe State in March and April, 1881. Another deed apireare to have been executed to the State, in pursuance of the sale of 1877, on the 31st of October, 1884. The Forest Commission Act was passed in 1885 (Chap. 283), by reason of which, and the acts done under it, a constructive eviction was found to have been perfected on January 1, 1886. Prior to 1885 there was no assertion of title adverse to Allen and Nortliam, and no one, therefore, to whom a surrender could be made that would operate to perfect a remedy on the covenant of the grantors. We fail to see how it can be said that, as matter of law, there was an eviction in 1874, or prior to the action of the Forest Commission.

These considerations lead to an affirmance.

JIaediN, P. J., and MaetiN, J., concurred.

Judgment affirmed, with costs.


author: MbewiN, J.:

text:
    William D. Hemenway, Respondent, v. John S. Keeler, Appellant, Impleaded with Joseph Russell.

      False representations — burden of proof in regard to them.

    Where a party alleges that he has heen defrauded hy false representations, the burden of proof rests upon him to show that the representations were made; that they were made with a knowledge that they were false, for the purpose of deceiving him, and that he was deceived by them.
    Appeal by the defendant, John S. Keeler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 5th day of November, 1894, upon the report of a referee.

      Thompson c& Cha/pmcm, for the appellant.

      Elon E. Brown, for the respondent.
   MbewiN, J.:

From May, 1890, until about February 1, 1891, the plaintiff was engaged in a mercantile business in the village of Alexandria Bay and had in the business contracted debts, four of which, to the amount of $271.83, are the subject of this controversy. On the 1st of February, 1891, lie sold an undivided one-half interest in the business to the defendant Russell, who took it subject to the indebtedness and upon the agreement, which was part of the consideration of the transfer, that the new firm at that time formed, of Hemenway & Russell, should become liable for the debts referred to. The business was continued by the firm of Hemenway & Russell to July 22, 1891, at which date the plaintiff sold his interest to the defendant Keeler with consent of Russell, and thereafter the business was conducted by the defendants under the firm name of Keeler & Russell. At the time of this transfer, and as a part of its consideration, it was mutually agreed between plaintiff and Keeler, with the assent of Russell, that Keeler should take the place of plaintiff in the partnership, and that the new firm of Keeler & Russell should assume and pay all the debts and liabilities which the partnership of Hemenway & Russell had incurred or for which they were liable. Thereafter the business was continued by the firm of Keeler & Russell until March, 1892, when Keeler bought out Russell. The debts in question were not paid, and in January, 1892, the plaintiff was compelled to and did pay them, taking assignments thereof to himself. This action was commenced April 12, 1892, to recover of the firm of Keeler & Russell the amount so paid, and the plaintiff has succeeded before the referee. Russell does not defend.

The defendant Keeler, in his answer, after denying some of the allegations in the complaint, sets up as a defense that at the time of the transfer to him in July, 1891, the plaintiff, with the intent to cheat and defraud him and for the purpose of inducing him to purchase the interest of plaintiff, falsely and fraudulently represented to him that the debts of the firm did not exceed $500, when in fact they exceeded $2,000, and that Keeler, relying on these representations, purchased plaintiff’s interest in the stock and business, and gave in exchange or payment therefor the stage route or line between Alexandria Bay and Redwood and a number of horses, wagons, sleighs, harnesses and a United States mail contract, and assumed and agreed to pay $250 and no more of the debts of the firm, and that he has already paid more than that amount. The same facts are set up as a counterclaim together with the allegation that he has paid $818.25 of the debts of the firm in excess of the amount assumed. The main question at the trial was over this defense and counterclaim, and tlie referee in effect found that they tvere not sustained by the proof. The appellant claims that this lonclusion is against the weight of evidence.

The burden was on the defendant to establish the fraud. It was necessary for him, not only to show that the representations were made, but also that they were made with a knowledge that they were false and for the purpose of deceiving the defendant and that they had that effect. (Pryor v. Foster, 130 N. Y. 171.) The proof on the subject was conflicting. There were surrounding circumstances the bearing and force of which were important to be considered, and we are not, after a careful consideration of the evidence, prepared to say that the conclusion of the referee that the fraud was not established was not correct.

Our attention is called to -several exceptions to rulings on evideüce, but we find in them no sufficient ground for reversal. "What the defendant had paid for a part of the stage property, without a specification of what part or of the time he had purchased it, was not important, nor was it material what the general character of the goods in the store was in August, 1891. Changes had occurred since the transfer. The only fraudulent representations alleged were as to the amount of the debts at the time defendant purchased. The value of the stage property or of the stock, if involved at all, was only collateral. The defendant was allowed to show the value of the stage property and of the stock of goods at the time of the transaction.

HardiN, P. J., and MartiN, J., concurred.

Judgment affirmed, with costs.


author: MebwxN, J.:

text:
    Jennie M. Perry, Appellant, v. John S. Kent and John G. Hughes, Respondents.

      Jwrisdiction, how determined — a court’s control of its process- — power of a court to decide questions of pi'ocedure.

    Jurisdiction of the subject-matter of an action Consists in the power to adjudge concerning the questions involved, and is not dependent upon the state of facts which may appear in a particular case nor upon the ultimate existence of a good cause of action in the plaintiff therein.

      The court has power to vacate its own process and set it aside at any stage of the proceedings taken, and where it vacates an execution against the person of a defendant and orders his discharge from custody, upon whatsoever ground it may proceed, the sheriff is hound to obey the order of the court.
    An action was brought to recover damages for breach of promise of marriage, a judgment was recovered and the defendant in the action was properly committed to jail upon an execution against the person. He gave a bond and was admitted to the liberties of the jail.
    Thereafter, on notice to the plaintiff’s attorney in that action, a motion was made to vacate the execution, upon the ground that the execution against the person was not issued within ten days after the return of the execution against his property, and that under section 572 of the Code of Civil Procedure the defendant was entitled to be discharged from imprisonment. The court so ordered and directed the sheriff to discharge the defendant therein, which was done.
    Immediately upon the defendant’s discharge from the jail the plaintiff began the present action against the sureties upon the bond as for an escape.

      Held, that the question involved upon the motion to vacate the execution was the proper construction of section 572 of the Code of Civil Procedure in a case where no order of arrest had been granted in the action;
    That the court had jurisdiction to determine such a question of procedure, and its order made pursuant to such determination was properly obeyed by the sheriff, and that the present action could not be maintained.
    Appeal by the plaintiff, Jennie M. Perry, from a judgment of the Supreme Court in favor of the defendants, entered in the office bf the clerk of the county of Oneida on the 2d day of March, 1895, upon the dismissal of the complaint directed by the court after a trial at the Oneida Circuit before the court without a jury.

      Howard G. Wiggins, for the appellant.

      Jones c& Townsend, for the respondents.
   MebwxN, J.:

On the 17th. of March, 1894, the plaintiff recovered in the Supreme Court a judgment against John P. Hughes for the sum of $1,141.79 damages and costs in an action brought by ber against Iluglxes for breach of promise of marriage. The judgment was on that day entered and docketed in Oneida county. On the 17th of April, 1894, an execution was duly issued on the judgment to the sheriff of Oneida county against the property of Hughes, and this was, on the 13th of June, 1894, duly returned wholly unsatisfied. On the 29th of June, 1894, an execution against the person of Hughes was in due form issued to the sheriff, and upon this Hughes was arrested on the 10th of July, 1894, and committed to the common jail of Oneida county, and there detained until July 14, 1894. Upon that day the said John P. Hughes, together with John S. Kent and John Gr. Hughes, as sureties, executed and delivered to the sheriff a bond in the penal sum of $2,500, payable to the sheriff or to the plaintiff in the action, conditioned “that if the above-bounden John P. Hughes, so in custody of the above-named sheriff as aforesaid, shall remain a true and faithful prisoner, and shall not at any time or in any manner escape or go without the liberties established for the jail of the county of Oneida, at Rome, N. Y., until discharged by the due course of law, then this obligation to be void ; otherwise, to remain in full force and virtue.” Upon the execution and delivery of this bond the said John P. Hughes was admitted by the sheriff to the liberties of the jail at the city of Rome, the sureties in the bond having duly justified. Afterwards, and on the 11th of August, 1894, at a Special Term of the Supreme Court held in and for the county of Oneida, and after due notice to the plaintiff’s attorney in the action, a motion was made in the action by the defendant John P. Hughes for an order vacating and setting aside the execution against the person, under section 572 of the Code of Civil Procedure, and after reading and filing affidavits and hearing-counsel on both sides an order was made in and by which, after a recital that it was conceded that no order of arrest was ever granted in the action, and that plaintiff objected to the jurisdiction of the court to grant the application, and objected that the court did not have the jurisdiction to vacate the execution or set the same aside, it was ordered “ that the execution against the person of the said defendant John P. Hughes, now in the hands of the sheriff of Oneida county, and upon which he was arrested and is now confined to the limits of the Rome jail, be vacated and set aside upon the ground that the said execution against the person of the defendant was not issued within ten days after the return of the execution against the property, as provided by section 572 of the Code of Civil Procedure, and that the sheriff discharge the said defendant from further imprisonment under said execution.” This order was, on the 13th of August, 1894, duly entered in the Oneida county clerk’s office, and a copy duly served on the plaintiff’s attorneys in the action. On the same day a copy, duly certified by the clerk, was served on the sheriff, and he on the same day, in pursuance thereof, discharged the said John P. Hughes. Afterwards, and on the same day, after Hughes went from the jail limits, the present action was commenced against the sureties on the bond. It is claimed that there was an escape, and that the defendants as sureties are liable for the amount of the judgment.

From the order of the Special Term above referred to, the plaintiff in the action took an appeal to the General Term, where the order was reversed iu November, 1894 (Perry v. Hughes, 82 Hun, 614), the cases of Sweet v. Norris (12 Civ. Proc. Rep. 175; 45 Hun, 595 ; 110 N. Y. 668) and Redner v. Jewett (72 Hun, 598; S. C., 54 N. Y. St. Repr. 774) being followed.

The defendants in the present action are claimed to be liable by reason of the act of the sheriff in discharging the defendant in the execution, in pursuance of the order of the Special Term. The claim of plaintiff is that the Special Term had no jurisdiction to make the order, and that it was, therefore, void, and no defense to this action. It is not claimed that if the order was simply erroneous it would not be a protection to the sheriff and the sureties. (Wilckens v. Willet, 1 Keyes, 524.) The question, therefore, is, did the Special Term have jurisdiction to act ?

In the motion made by the defendant in the execution the Special Tei’m was called upon, and it was its duty, to construe the provisions of section 572. In People v. Sturtevant (9 N. Y. 266) it is said that the duty to decide is the. test of jurisdiction. In that case, on the subject generally of jurisdiction, it is said, quoting from The State of Rhode Islands. The State of Massachusetts (12 Pet. 718): “ Jurisdiction is the power to hear and determine the subjectmatter in controvei’sy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is whether1, on the case before a court, their action is judicial or extrajudicial; with or without the authority of law, to render a judgment or deci’ee upon the rights of the litigant parties. If the law confers the power to reirder a judgment oi’, decree, then the court has jurisdiction. What shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it.” In Hunt v. Hunt (72 N. Y. 217) it is held: “Jurisdiction of the subject-matter oí an action is a power to adjudge concerning tlie general question involved therein, and is not dependent upon the state of facte which may appear in a. particular case or the ultimate existence of a good cause of action in the plaintiff therein.” In Pinckney v. Hagerman (4 Lans. 374, 377) it is said of ail order-setting aside a body execution “ that the court had power over its own process to vacate it and set it aside, at any stage of the proceedings under it, cannot be questioned; and it is of no consequence to the question under consideration on what evidence or grounds the court proceeded in setting aside the execution and discharging the prisoner under it. On whatever ground it was made the sheriff was bound to obey the order, and is, therefore, justified in obeying it.” In the same case in the Court of Appeals (53 N. Y. 31, 34) it is said : The court had jurisdiction of the action and complete power and control over the proceedings and process in it, and hence-it might set aside this execution as one of the proceedings and as a. process in the action.”

It cannot well be said that there was here an entire absence of judicial authority to act. (People ex rel. Cauffman v. Van Puren, 136 N. Y. 252.) Here was an action in the Supreme Court, and a controversy between the parties over the process issued for the enforcement of the judgment. The construction of section 572 of the Code was in dispute, and judicial utterances on the subject were not in entire harmony. The precise question was whether section 572 applied to the case, there never having been an order of arrest granted in the action, and very clearly that was a matter for the court to decide. It was called upon to act in regard to a matter of procedure in the action, and it had full jurisdiction to determine questions of that kind.

"We are of the opinion that the Special Term had jurisdiction and that the order made was not void. It follows that the judgment appealed from should be affirmed.

HaediN, P. J., and MaetiN, J., concurred.

Judgment affirmed, with costs.


text:
    Lydia Pritchard, Personally, and as Executrix, etc., of William Dickerson, Deceased, Respondent, v. George S. Palmer and Selden Palmer, Appellants. Lydia Pritchard, Personally, and as Executrix, etc., of William Dickerson, Deceased, Respondent, v. George S. Palmer and Others, Appellants.

      A. subscribing witness must become such at the time of the execution of the deed— fraudulent conveyance induced by one occupying a fiduciary relation — a person concerned in a fraud is properly a defendant and is changeable with costs.

    In an action brought by a woman aged seventy-nine and unacquainted with business, to set aside, upon the ground of fraud and misrepresentation, deeds which she had executed, it appeared that the defendant Selden Palmer had long been her agent and confidential advisex’, and was prominent in carrying through the transaction in question; that at the time of the execution of the deeds, about March 1, 1893, no acknowledgment of the instruments was taken, nothing was said about an acknowledgment, and no person signed them as an attesting or subscribing witness; that on March 3, 1893, Selden Palmer signed the deeds as a witness ; that about. March 14, 1893, the grantor refused to acknowledge them, and that May 7, 1893, Selden Palmer, of his own motion, made the usual proof as a subscribing witness, and procured the deeds to be recorded on May 9, 1893.

      Held, that as Selden Palmer did not become a subscribing witness at the time the deeds wei-e executed, he had no right thereafter to make himself a subscribing witness without being requested to do so;
    That as it appeared fi'om the evidence that he principally advised and directed the transactions found by the court to be fraudulent, he was, although not a grantee in any of the instruments, properly made a defendant in the action, and chargeable with costs.
    Appeal by George S. Palmer and another, the defendants in the Erst above-entitled action, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of tbe ■county of Oneida on tbe 16th day of May, 1894, upon tbe decision of tlie court, rendered after a trial at tbe Oneida Special Term, witli notice of an intention to bring up for review upon tlie appeal u,ll intermediate orders.
    Also an appeal by George S. Palmer and others, the defendants in tbe secondly above-entitled action, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of tbe clerk of tbe county of Oneida on tbe 16th day of May, 1894, upon the decision of tbe court rendered after a trial at the Oneida Special Term, with notice of an intention to bring up for review upon the appeal all intermediate orders.
    The actions, which were brought to set aside, in each case, a deed and contract on the ground that they were obtained bjr fraud from the plaintiff, who was seventy-nine years of age and was unacquainted with business matters, were tried as one action.

      Uvans c& Kneeland, for the appellants.
    Sayles, Searle <& Styles, for the respondent.
   MeewiN, J.:

This action was brought in February, 1893, to set aside a deed dated March 1, 1892, from the plaintiff, then Lydia Dickerson, to the defendant George S. Palmer, and a contract or lease of same date from plaintiff to defendant Geoi’ge S. Palmer and Nettie Palmer, his wife. Another action was brought at the same time by the plaintiff against the same defendants and others, the heirs of Nettie Palmer, deceased, to set aside a deed dated March 1, 1892, from the plaintiff to Nettie Palmer, and also the same contract or lease. These actions were tried together, and in each case it was decided and adjudged that the deed and contract described in the complaint were fraudulent and void, and that the same should be delivered up to the plaintiff and canceled of record; that the defendants never obtained any rights by or under the deed or contract, and that the plaintiff is entitled to the possession of the real estate described in the deed and contract and the avails and proceeds from March 1, 1893. Both judgments are appealed from, and the appeals are argued on the same papers, the same questions being in substance involved in each case.

William Dickerson, of Rome, N. Y., died on May 2, 1891, then being the owner of a farm of 250 acres and upwards in the town of Ava. He left a will, afterwards duly proved, by which his widow, now the plaintiff, either became the owner of the farm or had the right, individually or as executrix, to convey the same. The farm was then occupied by a tenant by the name of Castle under a written lease with William Dickerson, commencing March 1, 1891, for the term of one year, with the privilege of five years, if both parties agreed. The plaintiff, just prior to March 1, 1892, had made an arrangement with Castle that he should leave at the end of the year,

The three instruments in controversy were drawn by the defendant Selden Palmer, the father of George, and were signed by the plaintiff, then Lydia Dickerson, at a house near the farm. By the terms of the contract the party of the first part, Mrs. Dickerson, agreed to give to George Palmer and his wife warranty deeds of that portion of the farm north of a certain road included in lots Nos. 3 and 4, and to lease the. remainder of the farm during her natural life, not exceeding twelve years, at an annual- rent of $300 a year, she reserving the right to go and live with the parties of the second part upon the farm whenever she chose, by paying a reasonable compensation for her board. The deeds were absolute conveyances with warranty, and each covered about 100 acres of the value of about $2,500. None of the instruments were read over at the time. The deeds were not acknowledged and nothing was said about it at the'time, nor did any one then sign as an attesting witness. All the papers were taken away by the defendants or one of them. The defendant Selden Palmer after his return to Rome, and on the third of March, signed them as a subscribing witness, and he on the 7th of May, 1892, as a subscribing witness, acknowledged the deeds and they were recorded on May 9, 1892. Previous to this, and on the fourteenth or fifteenth of March, as the defendant Selden Palmer testifies, the plaintiff refused to acknowledge them. Nettie Palmer died on March 27, 1892. The defendant George has been in possession since March first, and he has paid one year’s rent. The plaintiff was then nearly seventy-eight years old.

It is found by the Special Term that the plaintiff at the time she signed these papers did not know their contents, and that none of them were read or described to her; that the deeds and contract were executed and came to defendants without any consideration; that the defendant Selden Palmer was then, and for a long time prior thereto had been, the agent, and confidential adviser of the plaintiff, and the execution of the papers was procured by him and the defendant George without knowledge on the part of plaintiff as to their contents or purport; that by the acts and conversation of the defendants the plaintiff was led to believe, and did believe, when she executed the instruments, that she was only executing a lease sucli as bad been entered into between her former busband and Castle, and did not intend to execute, and did not know that she was executing, papers of tlie character of those in controversy, but relied solely on the defendant Selden Palmer to properly transact the business of making a lease of the farm similar to the Castle lease; that the defendant Selden Palmer was never requested to witness the papers or sign as a subscribing witness, and his signing as such was without plaintiff’s knowledge or consent, and he had no right or authority to acknowledge as subscribing witness; that the defendants were guilty of fraud, misrepresentation and deceit in procuring from the plaintiff the deeds and contract.

The appellants claim that these findings of fact are not in their main features sustained by the evidence ; that the deeds were executed in pursuance of a promise made in 1885, in consideration of the marriage of the said George and Nettie, and that the plaintiff knew of the character of the papers and intentionally executed them. The existence of a promise in 1885 is based on a letter claimed to have been then written by William Dickerson or by his authority to the defendant George. The court, however, declined to find that any such letter was written, and there is evidence which tends to support that conclusion. Besides, there is evidence tending to show that if there was any promise or agreement of that character it was afterwards abandoned. The trial court, in effect, found that prior to the execution of the papers in controversy there was no obligation or duty on the plaintiff that furnished any valuable consideration. This conclusion is fully justified by the evidence.

Assuming then, as I think we' must, that there was here, if these deeds are good, an absolute gift to George Palmer and his wife of property to the value of $5,000, the question arises whether plain- ’ tiff intended to make it, or in other words whether she understood the character of the papers she signed. The trial court after seeing all the parties and hearing them testify has found that she did not.

The fact that at the time of the transaction nothing was said or done about any acknowledgement of the execution of the deeds is quite significant in favor of plaintiff’s theory. No satisfactory explanation is furnished by the defendants of the entire silence on the subject. The fact that one of the defendants afterwards, without the request or knowledge of plaintiff, signed as witness and as such, after plaintiff refused to acknowledge, proceeded to acknowledge and have the deeds recorded, does not help the defendants’ situation. He had no right to make himself a subscribing witness. (Hollenbach v. Fleming, 6 Hill, 303; Henry v. Bishop, 2 Wend. 575.)

Concededly the papers were not read over at the time, but the defendants claim that they were previously read to the plaintiff. Whether they were so read that the plaintiff understood their character was a question of fact for the trial court to determine, and in view of the surrounding circumstances, and such light as might be furnished by the situation and appearances of witnesses, we are not prepared to say that the conclusion of the trial judge is against the weight of the evidence. W e are of the opinion that the findings of fact by the trial court should not be disturbed.

It is claimed by the defendant Selden Palmer that he was not a proper party and that as to him the complaint should have been dismissed. He w'as an actor in the transaction, and in similar cases it has been held that a person in his situation was a proper party and chargeable with the costs. (Brady v. McCosker, 1 N. Y. 214; Huggins v. King, 3 Barb. 619; Hammond v. Hudson River Iron & M. Co., 20 id. 378, 384; Story’s Eq. PL § 232.)

Our attention is called' to a number of rulings on evidence. These we have examined, but we find no sufficient ground for reversal. It follows that the judgment should be affirmed.

HardiN, P. J., and MartiN, J., concurred.

Judgment affirmed, with costs.


author: lÍERwiN, J.:

text:
    Albert P. Fowler, as Administrator with the Will Annexed, etc., of George F. Comstock, Deceased, Appellant, v. Union Coarse Salt Company, Respondent.

      Action for money had and received — receipt of the money must he shown — ratification established by accounts stated.

    George F. Comstock, who died in September, 1892, was the treasurer of the Union Coarse Salt Company and of the Western Coarse Salt Company, and was the president of the American Dairy Salt Company. His administrator brought an action for moneys alleged to have been advanced by him to the defendant, the Union Coarse Salt Company, and the latter interposed a counterclaim. Upon, the trial of the action it appeared that, on the 14th day of November, 1887, a bank loaned the defendant §10,899.12, by its check payable " to the order of Geo. F. Comstock, Treas.” This check was indorsed by “Geo. F. Comstock, Treas,” then by “ Geo. F. Comstock, Jr.,” who was president of the defendant, and then by “ Thomas Molloy, Treas.,” who was treasurer of the American Dairy Salt Company, and was then credited by the latter company to the defendant. After that time ■ and up to March 5, 1888, the defendant received from the American Dairy Salt Company §10,551.62, of which amount only §4,655.51 appeared in the account of the treasurer of the defendant, the balance being found in the treasurer’s account of the Western Coarse Salt Company.
    The defendant, by its counterclaim, first claimed as for money had and received, and separately alleged a conversion of the loan of November 14, 1887, in that, without right, Comstock loaned the money to the American Dairy Salt Company, knowing it to be insolvent and that the corporation failed, and that the money was lost.
    Upon an appeal by the plaintiff from a judgment entered upon a decision to the effect that the facts stated constituted a conversion,

      Held, that, as it was not shown that George F. Comstock personally ever had any of the moneys represented by the check of November 14, 1887, an action for money had and received would not lie;

      Semble, that, as the books of the defendant showed a settlement of the treasurer’s account on February 15, 1892, at which time a balance was due by the treasurer of §151.64, while on February 20, 1893, they showed a balance due him of §5,076.75, the amount which the plaintiff claimed, the silence of the defendant, until the latter date, implied a ratification of the act of the plaintiff or prior authority to him to act as he did;
    That, as the books showed that, on or before March 5, 1888, the full amount due by the American Dairy Salt Company had been repaid to the defendant, the latter had not been damaged, and a finding that Comstock had converted the check was erroneous;
    That the fact that, by some arrangement, a part of the repayment had been turned over to the Western Coarse Salt Company did not affect the state of the account between the defendant and the American Dairy Salt Company.
    Appeal by the plaintiff, Albert P. Fowler, as administrator with the will annexed, etc., of George F. Oomstock, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 25th day of February, 1895, upon the decision of the court rendered after a trial at the Onondaga Circuit before the court without a jury.
    The American Dairy Salt Company, Limited, the "Western Coarse Salt Company and the Union Coarse Salt Company were domestic corporations, organized .for the manufacture of salt.
    George F. Comstock was the president of the American Dairy Salt Company, and was the principal owner in all three corporations.

      W. S. Andrews, for tbe appellant.

      Framlt Hiscoola, for the respondent.
   lÍERwiN, J.:

The defendant is a domestic corporation, duly organized under the laws of this State prior to 1887, and having its office and place of business at Syracuse, N. Y.' George F. Comstock, at the time of his death on September 27, 1892, and for many years prior thereto, was its treasurer and also one of its directors. In the complaint it is alleged that Comstock, at certain dates from June 6, 1892, to August 16, 1892, advanced moneys to the defendant to the amount of $5,076.75, no part of which has been paid, and for this amount, with interest, judgment was demanded. Upon the trial these advances were not disputed, but the controversy was over the counterclaim or set-off set up in the answer. It was alleged that on the 14th of November, 1887, the decedent became, and he or his estate is still indebted to the defendant upon account for money had and received in the sum of $5,729.31 and interest. In another count it was alleged that on the 14th of November, 1887, the decedent was the treasurer of the defendant, and on that day, as such treasurer, he received $10,500, the property of defendant, which it was his duty to apply to the payment of the then existing debts of the defendant, and deposit the balance, if any, in some safe and proper bank to his credit as such treasurer until needed by the defendant, but that instead of doing so he, without right or authority so to do, converted the same to his own use and loaned the same to the American Daily Salt Company, a domestic corporation, which soon thereafter failed, whereby $5,275.46 of said money was lost; that at the time of such loan Comstock knew that the American Dairy Salt Company was insolvent, and it was soon thereafter so adjudged and a receiver appointed, and no part of its debts have been paid. In its decision the trial court found that on the 14th of November, 1887, Comstock, as treasurer of the defendant, “received $10,399.12 of the property of the defendant which it was his duty to deposit to the credit of the defendant in its proper bank account, but instead of so doing said Comstock, without right or authority so to do, converted to his own use and loaned the same to the said American Dairy Salt Company, Limited, whereby $3,275.46 of said money was lost, which, witb interest to tbis date, amounts to $4,303.94,” and that at the time of such loan Comstock knew the said company was insolvent. The amount of $4,303.94, together with several small items not here in controversy, was deducted from the claim of the plaintiff, leaving a balance of $510.80 in favor of"plaintiff, for which judgment was ordered.

The question on this appeal is whether the item of $3,275.46 and interest was properly deducted from plaintiffs claim. It is claimed on the part of the plaintiff (1) that there is no evidence in the case that would justify the finding that any money of the defendant was had and received by the decedent; (2) that in any event there is nothing in the case that tends to show that the $10,399.12 was used in an unauthorized manner by the decedent; (3) that even if the deposit or loan in question was made by the decedent and was unauthorized, no damage resulted to the defendant.

It appears that on -the 14th of November, 1887, the Syracuse Savings Bank, in payment of a portion of a loan made by it to the defendant, made its check for the sum of $10,399.12 payable to the order of George F. Comstock, Treas.” This was indorsed by “ Geo. F. Comstock, Treas.,” then by “ Geo. F. Comstock, Jr.,” who was the president of the defendant, then by “ Thomas Molloy, Treas.” Molloy was treasurer of the American Dairy Salt Company, Limited. The check was then credited to the defendant on the books of the American Dairy Salt Company. On the books of the defendant under date of November 14, 1887, there is an entry of the loan from the savings bank, and of the deposit of the check for $10,399.12 with the American Dairy Salt Company. Thereafter from time to time, up to and including March 5, 1888, the defendant, as indicated by receipts in the name of the defendant by officers other than the treasurer, received in the aggregate from the American Dairy Salt Company the sum of $10,551.62. All these receipts are stated to be “ on special account,” and all are charged to the defendant on the books of the American Dairy Salt Company. Only a portion of the amounts of 'these receipts appear in the treasurer’s account of the defendant, being the sum of $4,655.51, and the balance of $5,896.11 appear in the treasurer’s account of the Western Coarse Salt Company, another corporation doing business at Syracuse of which George F. Comstock was treasurer, and whose solvency is not here questioned. The arrangement under which tnese receipts or payments were divided does not appear. Afterwards, and on March 17, 1888, the defendant received credit on the books of the American Dairy Salt Company for the sum of $5,972, being a check of the Syracuse Savings Bank of that amount payable to the order of the Western Coarse Salt Company and indorsed by George F. Comstock, treasurer, and Thomas Molloy, treasurer. After this the American Dairy Salt Company continued to pay to the defendant, mostly on receipts similar to those above referred to, until October 9, 1S88, at which time the total amount of such payments was $13,391.20, of which there appeared on defendant’s books $5,700.78, and on the books of the Western Coarse Salt Company $7,630.42. The total credit to the defendant on the books of the American Dairy Salt Company, including an item of $65.13 of the same date as the original check and an item, of $230.41 for interest, was the sum of $16,666.66. That left a balance of $3,275.46 due to the defendant, and this is the amount which the court below charges to the plaintiff. It seems that the Western Coarse Salt Company afterwards settled with the defendant for the balance it had received in the transaction over and above the amount of $5,972 paid March 17, 1888.

It is not shown that George F. Comstock personally ever had any-of the moneys represented by the check of November 14, 1887. So that, according to the ordinary rule in such cases, an action for money had and received would not lie. (Nat. Trust Co. v. Gleason, 77 N. Y. 400; Rosenberg v. Block, 118 id. 334.) No conspiracy is charged or proved. If the defendant’s only remedy is an action for damages for breach of trust or for negligence, it is to say the least quite doubtful whether it is in a position to have the benefit of it as a counterclaim in this action.

The fact of the deposit in question was entered on the books of the defendant. Evidently the three corporations had mutual transactions and their affairs seem to have been largely managed by the same individuals. Under what arrangement the deposit was made does not appear. It is shown that three out of five directors participated in it. It also appears that the books of the defendant show a settlement of the treasurer’s account on February 15, 1882, at whicb time there was a balance due from the treasurer of $151.64 ; that after that down to September 27, 1892, there were entries on both sides of the account, and that on February 20,1893, the books show a balance due George F. Comstock, as treasurer, of $5,076.75, which is the amount the plaintiff sues for. Comstock died September 27, 1892. In view of th.e actual or presumptive knowledge which the defendant had of the transaction of November, 1887, and its apparent silence until after February, 1893, it is not clear that the defendant is in a position to say that the deposit of November, 1887, was without its authority.

But, passing these questions, we come to another claim of the plaintiff, which is, that the defendant was not damaged by the deposit of November, 1887. It is shown that on or prior to IVIarch 5, 1888, the full amount of it had been drawn by or paid to the defendant. At that date nothing was due from the American Dairy Salt Company to the defendant. The fact that by some arrangement a portion of the money had been passed over to the Western Coarse Salt Company did not change the stale of the account between the defendant and the American Dairy Salt Company. The latter had safely kept and returned the whole of the money represented by the check of $10,399.12. Afterwards a further deposit is made with it of $5,972, and a portion of that is lost. This deposit is not challenged by the defendant’s answer, and the arrangement or circumstances under which it was made are not put in issue by the allegations of the counterclaim. We see no answer to this view of the case, and as the case now stands it must, therefore, be held that the finding of the trial court that the check of, November 14, 1887, was by George F. Comstock converted to his own use to the defendant’s damage is not sustained by the evidence.

HardiN, P. J., and MartiN, J., concurred.

Judgment reversed on the law and the facts and a new trial ordered, costs to abide the event.


author: MebwiN, J.:

text:
    John C. Trolan, Appellant, v. Leroy S. Rogers, Respondent.

      Doctrine of eoMates'al wa/rranty, abolished — estoppel does not a/rise from kinship alone ■— privity of estate — a elaima/nt under an independent title.

    The doctrine of collateral warranty, to the effect that, although the title of an heir may not he derived from a warranting ancestor, yet the heir is estopped from claiming title to the land hy any collateral title, and this upon the presumption that the heir may subsequently acquire assets by descent from or through the ancestor, has no existence in this State.
    It was expressly abolished by section 141 of article 4 of title 2 of chapter 1 of part 2 of the Revised Statutes (1 R. S. 789), and was not continued in force by any expression contained in section 148 thereof.
    Where the heirs of a warranting ancestor do not take the property from her nor claim under her, but claim as remaindermen by an independent title, there is no privity of estate between such heirs and their ancestor and no estoppel against them can arise upon her covenant.
    Kinship alone, whether by affinity or consanguinity, cannot create a privity which can be made the basis of an estoppel; this can arise only where the heir represents the ancestor and continues the ancestor’s estate.
    Under the provisions of the will of William Gill, who died in January, 1857, as construed by this court on a former appeal, his widow, Hannah Gill, took a life estate in his real property, and at her death her children, Julius Gill and Julia Wiggins, each took a life estate in one-half of the property in severalty, and at the death of either the half of the party dying passed to his or her children, while the fee vested in the grandchildren of the testator immediately upon his death. In May, 1857, the widow and Julius Gill conveyed, by quit-claim deed, their interests to Julia Wiggins. In 1875 Julia Wiggins conveyed the premises in question to Leroy S. Rogers by a warranty deed in the usual form. Subsequently to the execution of this deed, and in October, 1875, I-Iannah Gill died, and in 1881 Julia Wiggins died intestato, leaving four children, one of whom, Ada E. Wiggins, became the wife of John C. Troian. In 1884 Ada E. Wiggins died intestate, leaving issue of her marriage with John 0. Troian. Julius Gill is still living.
    In an action brought by John 0. Troian to recover of Leroy S. Rogers, grantee of Julia S. Wiggins, the possession of one-fourth of the premises in question, upon the ground that as tenant by the curtesy he was entitled to the use during his life of the share given his wife under the will of her grandfather, and of which she was entitled to the possession upon the death of her mother. Julia Wiggins,

      Held, that Ada E. Wiggins, subsequently wife of the plaintiff, did not take title by descent from her mother, nor did she claim under her mother;
    That as her claim was by an independent title which vested at the death of her grandfather, William Gill, she was not estopped by the warranty deed given by her mother to the defendant, and that as tenant by the curtesy the plaintiff was entitled to recover.

      Appeal by the plaintiff, John 0. Troian, from a judgment of the Supreme Court in favor of the defendant, entered in the officé of the clerk of the county of Jefferson on the 26th day of November, 1894, upon the dismissal of the complaint directed by the court after a trial at the Jefferson Circuit before the court and a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office in November, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.
    The plaintiff in his complaint alleges that he is the owner for his own life, and is entitled to the possession of, an undivided one-fourth of certain real estate in the village of Antwerp. The defendant admits that he is in possession, and denies all the other allegations of the complaint, and alleges that he is the owner in fee of the entire property under a warranty deed given to him by Julia "Wiggins on the 8th day of April, 1875.
    The report of a former appeal appears in 79 Hun, 507.

      Henry Purcell, for the appellant,

      Rogers <& AUoell, for the respondent.
   MebwiN, J.:

The property in question was owned by William Gill at the time of his death on the 2d of January, 1857. He left a widow, Hannah Gill, and two children, Julius Gill and Julia Wiggins, the wife of Sullivan G. Wiggins. By his will, as construed by this court, his widow had a life estate in the whole property. At her death the two children had each the use during life of the one-half in sever-alty, and at the death of either, the half that the party dying was entitled to the use of, passed absolutely to his or her children. It was said that the fee vested in the grandchildren at the testator’s death. On the 23d of May, 1857, the widow and Julius Gill executed to Julia Wiggins a quit-claim deed of the property in question with other property. On April 8, 1875, Julia Wiggins, with her husband, executed to the defendant a warranty deed of the premises in question for the consideration of $800, and defendant went into possession. The form of the covenant in the deed is as follows : “And the said Julia Wiggins and Sullivan G. Wiggins do hereby covenant and agree to and with the said party of the second part, his" heirs and assigns, that the prejnises thus conveyed in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, they will forever warrant and defend against any person whomsoever lawfully claiming the same or any part thereof.”

Hannah Gill died October 25, 1875. Julia Wiggins died intestate on the 21st of May, 1881, leaving four children, one of whom, Ada E., became the wife of the plaintiff on the 20th of May, 1875, and died February 21, 1884, intestate and leaving two children, the issue of the marriage. Julius Gill is still living. The plaintiff claims, as tenant by the curtesy, to be entitled to the use during his life of the share given to liis wife by the will of her grandfather, and of which she was entitled to the possession on the death of her mother.

Upon the motion for a nonsuit several grounds were stated, but, in view of our former decision, the eighth ground is the only one now relied on by the respondent to sustain the nonsuit. That is as follows: “Eighth. That it appears that the heirs of Julia Gill have inherited from her real estate in excess of the value of the land in question, and to that extent they are' bound by her warranty deed to the defendant, and are estopped from committing a breach of their own covenant to the extent of the property inherited by them of the deceased Julia Wiggins.”

It was shown that Julia Wiggins at her death left real estate that descended to her heirs to the value of about $2,500. The value now of the land deeded to defendant was shown to be about $3,000.

The claim of the defendant is that the heirs at law of Mrs. Wiggins, including the plaintiff and his wife, are bound by the covenant of warranty in the deed to defendant and are estopped from claiming title. Undoubtedly the heirs are bound by the covenant to the extent that they are liable under the statute (Code, § 1843 eb .seq.), by reason of property descending to them from the decedent. If Mrs. Wiggins, after the conveyance to defendant, had acquired the fee, her heirs, seeking to claim it under her, would be estopped. (Tefft v. Munson, 57 N. Y. 97.) But here a different question is presented. The heirs of Mrs. Wiggins do not take this property by descent from ber, or claim under her, but by independent title,* that vested at the death of their grandfather. As to this property there was no privity between Mrs. Wiggins and her heirs. “ The term jprivity denotes mutual or successive relationship to the same rights of property.” (1 Greenl. Ev. § 189.) The doctrine of estoppel as applicable to the different classes of privies, “ applies to them under one and the same principle, namely, that a party claiming through another is estopped by that which estopped that other, respecting the same subject-matter.” (Stacy v. Thrasher, 6 How. [U. S.] 59.) In 1 Freeman- on Judgments (4th ed., § 162) it is said that except to the extent which one person has succeeded to an estate or interest formerly held by another, there can be no privity between them, no matter what were or are their relations to each other or to the same piece of property. * * * Kinship, whether by affinity or consanguinity, does not create privity, except where it results in the descent of an estate from one to another.” When an heir represents the ancestor and continues his estate, an estoppel may arise. (Bigelow on Estoppel [2d ed.], 337.) That is not the case here, as the héirs do not hold under the ancestor, but by an independent title accruing before the deed. We are referred to no case in this State where an heir in such a situation was estopped from claiming the land. In Tefft v. Munson (supra) and Mygatt v. Coe (142 N. Y. 78) the question here involved did not arise. Nor does Thompson v. Simpson (128 N. Y. 270) help the defendant. There, the heirs at law of a tenant by the curtesy, who had given a warranty deed purporting to convey the fee, were held to be precluded from asserting their title because, with full knowledge of the facts, they had received the proceeds of the sale. In Van Rensselaer v. Kearney (11 How. [U. S.] 297) the life tenant after the deed and before his death became the owner of the fee. So his heirs were held to be barred. In Carbrey v. Willis (7 Allen, 364, 368) the rule laid down was that a conveyance with full covenants of warranty would estop the grantor and those claiming under a title subsequently derived from him from claiming any interest in the premises.

The defendant in effect seeks to apply here the ancient doctrine of collateral warranty. That was. where the heir’s title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon tlie presumption that he might thereafter have assets by descent from or through the ancestor, and it imposed upon Mm the obligation of giving the war-rantee other lands in case of eviction, provided he had assets. (4 Kent’s Com. 469; 2 Greenl. Cruise, 738.) This kind of warranty was deemed a grievous one (Rawle on Covenants [4th ed.], 382) and does not exist in our law.

Section 141, 4 Revised Statutes (8th ed.), 2452, is as follows: “ § 141. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who shall have made any covenant or agreement shall be answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.” Of this and the provision of the statute that no covenant shall be implied in any conveyance of real estate, it is said in 4 Kent’s Commentaries, 470 : “These provisions leave the indemnity of the purchaser for failure of title, in cases free from fraud, to rest upon the express covenants in the deed, and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions.” The remedy referred to in section 141 was regulated by other provisions of the statute, which have been in substance incorporated in the Code of Civil Procedure. (§ 1843 et seq.)

Section 143, 4 Revised Statutes (8th ed.), 2452, is as follows: “§ 143. No greater estate or interest shall be construed to pass by any grant or conveyance hereafter executed than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent.” The last clause of this section the defendant claims the benefit of, but it does not seem to apply here, as the plaintiff and the children of Mrs. "Wiggins do not claim the property by descent from Mrs. Wiggins, defendant’s grantor. The effect to be given to this section is considered in the Thompson case (page 285), and it is quite evident that the interests of remaindermen were not designed to be affected, nor was it designed to continue in such a case the doctrine of collateral warranty.

In tlie Thompson case the claimants were in the position of heirs to an ancestor who had given a warranty deed ; still it does not seem to have been suggested that an estoppel could be based on the warranty in such a case, the heirs taking from an independent source.

It is claimed on the part of defendant that the case of Carson v. New Bellevue Cemetery Co. (104 Penn. St. 575) is in point. There it was held that a warranty by a tenant by the curtesy is a bar to the heir taking by descent from his warranting ancestor assets of equal value to the land warranted. There seems to be in Pennsylvania no statute like the one in this State and above referred to. In Indiana there is a statute similar to ours and it was there held, in Hartman v. Lee (30 Ind. 281) that a warranty deed by a tenant by the curtesy did not bind the heirs and that the remedy of the grantee was for damages for breach of the covenant.

We are of the opinion that the plaintiff is not, by reason of the warranty deed to defendant, estopped from asserting his rights. It is hardly claimed that the defendant is in a position in this action to get the benefit of the statutory provisions making heirs and devisees liable for the debts of the decedent. (Code, § 1843 et seq.; Selover v. Coe, 63 N. Y. 438.) Such action must be against all the heirs (§ 1846), and certain conditions must exist (§ 1848) which are not shown here, and the amount recoverable depends on the amount of the assets, and other claims are to be taken Into account.

It follows that the nonsuit was improperly granted.

HaRDIN, P. J.. and Martin] J., concurred.

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