text:
    LUCIUS GLEASON, Respondent, v. FANNIE M. HAMILTON, Appellant.

      Alteration of an instrument by an attorney — when the client, not relying upon the alteration, may recover — disrega/rding errors below.

    William T. Hamilton and Fannie M., his wife, executed a mortgage to Lucius Gleason, as security for the payment of all notes of a mining company (in which Hamilton and one Thompson were largely interested) indorsed by Hamilton and Thompson and owned by Gleason, for all renewals thereof, and for all such notes upon which Gleason was an indorser, and for their renewals.
    After the mortgagors had acknowledged the execution of the mortgage the attorney of Gleason inserted a further clause making it a security for all notes or drafts indorsed by Hamilton, then or thereafter owned by Gleason, or on which Gleason might be liable as indorser.
    Fannie M. Hamilton, upon a foreclosure of the mortgage, set up. as a material alteration, the clause inserted by the attorney. Gleason had no knowledge of the alteration until after the commencement of the action of foreclosure, his recovery in which was not predicated upon the alteration, but was based upon the clause as it stood originally.

      Held, that Gleason was entitled to recover.
    That as he did not rely upon the disputed clause; had never intended to commit a fraud; had not procured or consented to the alteration, and as the instrument was still intelligible, there was no equitable reason why he should not enforce his security to the extent to which, as originally drawn, it covered the indebtedness due to the plaintiff.
    That the effect of the alteration, although made by Gleason’s attorney, was, under the circumstances, the same as if it had been made by a stranger.
    That Gleason’s right to recover was further strengthened by an instrument subsequently executed by the parties whose legal effect indicated the defendant’s intention to liave been to assume a liability corresponding with that created by the disputed clause.
    That section 1003 of the Code of Civil Procedure applied to actions in equity, and authorized the appellate court to disregard errors committed on the trial, where it was of opinion that substantial justice was done by the judgment below.
    Appeal by the defendant Fannie M. Hamilton from a judgment of the Supreme Court, as resettled, and after a trial of the action, and of certain issues ordered to be tried by the court and a jury at the Onondaga Circuit, entered in the office of the clerk of the county of Onondaga on the 3d day of July, 1891, adjudging that a mortgage given by the defendant to the plaintiff was not invalidated by the insertion of a clause therein, to wit: “ Also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party (Lucius Gleason), or upon which he may be liable as indorser,” after the first execution of said mortgage, and directing a sale of the premises covered by it; and also an appeal from an order, entered in said clerk’s office on the 24th day of March, 1891, denying a motion for a new trial upon the minutes.
    The action was brought to foreclose a mortgage bearing date January 13, 1885, on property on James street, Syracuse, described in the complaint, executed by the defendant and acknowledged before John C. Keeffe, notary public, whose certificate of acknowledgment bears date 13th of January, 1885. The mortgage was recorded March 23, 1885. The complaint alleged the incorporation of the El Oro Mining Company under the general manufacturing act of the State of New York of 1848; that it executed certain promissory notes, one of June 3,1884, for $14,000; another of June 20, 1884, for $10,000; another of July 3,1884, for $25,000; another of May 15,1884, for $10,000 ; another of July 30, 1884, for $26,000; another of June 20, 1884, for $13,000; another of August 22, 1884, for $20,000 and a draft of August 22, 1884, for $10,624.43; that the several notes and drafts were indorsed, in each case, by 'William N. Thompson and William T. Hamilton, or one of them; that the said notes and draft had been duly presented for payment, and payment had been refused and the said notes and draft were duly protested for nonpayment. It stated that a certain mortgage had been given by Fannie M. Hamilton, on January 13, 1885, to secure the payment of such notes and draft, covering certain real estate described in the complaint and demanded a foreclosure thereof. The consideration named in the mortgage was $30,000. The condition in the mortgage, as recorded, was as follows: “This grant is intended as a security for the payment of any and all notes made by the El Oro Mining Company, and indorsed by "William T. Hamilton and William N. Thompson, and now held and owned by the party of the second part; and of any and all renewals of said notes, and also to secure said second party from all loss by reason of his liability as indorser upon any and all notes made by said El Oro Mining Company, and' indorsed by said Hamilton and Thompson, and any and all renewals thereof; also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser.” Defendant, in her answer, alleges: “ That said plaintiff altered, or caused to be altered, said mortgage, in a material part, after her signature was affixed thereto, and he had obtained possession thereof by inserting at the end of the condition thereof the following words: ‘ Also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser.’ That said alteration was not brought to her knowledge in any manner after the same was made, nor did she ratify the same or acknowledge such mortgage after such alteration; and said plaintiff now claims a benefit and an advantage over defendant under and by virtue of such alteration. That such alteration was made for the purpose of obtaining a benefit for the plaintiff, and was fraudulent as to this defendant; and said mortgage, if any such exists, thereby rendered void and of no effect.” Other defenses are stated in the answer, among others-that the mortgage “ was so executed and delivered wholly without any consideration therefor.” On the 7th of September, 1889, at a Special Term, an ■order was made settling issues, and directing a trial thereof at the Circuit Court. The questions and the verdict of the jury thereon were as follows:

      First. Did the defendant execute and deliver to the plaintiff the mortgage referred to in the complaint ? Answer. Yes.

      “Second. Was any consideration paid, or did any pass to the defendant or any other person, for the execution and delivery by her of the mortgage mentioned in the complaint ? Answer. Yes.

      “Third. After the execution and delivery of the mortgage referred to in the complaint, was said mortgage changed by writing therein in the condition thereof the following clause: ‘Also any, and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser?’ Answer. Yes.

      “Fourth. Was said clause written in said mortgage without the knowledge or consent of the said defendant, Fannie M. Hamilton ? Answer. No.

      “Fifth. Did the said defendant, Fannie ]VI. Hamilton, after the following clause was written in said mortgage, ‘Also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser,’ assent to the same or consent that the same should form a part of said mortgage ? Answer. Yes.”
    A motion for a new trial “ upon the minutes of the court to set aside the verdict of the jury, rendered upon the first, second, fourth and fifth of said issues, and each of them, and that a new trial be granted as to said last-mentioned issues, and each of them upon the grounds ” specified, was made at the circuit and denied. Subsequent to such order denying a motion for a new trial, “ the issues joined in this action were brought to trial at a Special Term of this court, and the following proceedings were thereupon had: The stenographer’s minutes of the evidence and proceedings before the jury upon the trial of the issues in this action, before them, and the exhibits therein referred to, and the verdict of the jury upon said issues, were introduced in evidence; said evidence was received subject to the exceptions and objections in said minutes, the same rulings being deemed made and exceptions taken at Special Term as at the circuit. No further proof was offered by either party, and the foregoing ease contains all the evidence given and proceedings had at the circuit and Special Term upon the trial of this case.”
    The Special Term found the execution of the mortgage and the consideration therefor, and the extent of the indebtedness mentioned in the complaint, and the existence of the several notes and drafts mentioned therein, and further, as follows: “ 10. That on the 13th ■of January, 1885, fora valuable consideration, and for the purpose of securing the payment of the said several notes and drafts, the defendant, Fannie M. Hamilton, executed, duly acknowledged and delivered to the plaintiff a mortgage, whereby she granted, bargained and sold to the said plaintiff the following described premises, with the appurtenances thereto. (Here follows description.) 11. That by the terms of said mortgage it was provided that it was intended as a security for the payment of any and all notes made by the El Oro Mining Company and indorsed by William T. Plamilton and William N. Thompson, and held and owned by the plaintiff herein, and of any and all renewals of said notes, and also to secure him from all loss by reason of his liability as indorser upon any and all notes made by the said El Oro Mining Company and indorsed by said Hamilton and Thompson, and any and all renewals thereof; also any and all other notes or drafts made or indorsed by said Hamilton which were owned at the time of the execution of said mortgage, or which thereafter should be owned by the plaintiff, on which he might be liable as indorser; that the said mortgage contains a further condition that, in case default should be made in the payment of the moneys thereby intended to be secured, or in the payment of the interest thereof,” and that a foreclosure and sale should take place. It was also found that none of the notes or drafts had been paid, and that the defendant had failed to comply with the conditions of the mortgage by omitting to pay any of said notes, and “ there is now due and justly owing to the plaintiff upon the said notes, draft and mortgage the sum of $128,624.43 of principal, and $48,081.66 interest.”
    The court also found: “ After the execution and delivery of said mortgage hereinbefore described, the same was changed by inserting in the condition thereof the following clause, to wit: ‘ Also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said party, or on which he may be liable as indorser,’ and that said clause was written in said mortgage with the knowledge and consent of the defendant, Fannie M. Hamilton, and after the same was written therein she assented to the same, and consented that it should form a part of said mortgage. 16. Said clause was inserted in said mortgage without the knowledge, request or procurement of the plaintiff. After said mortgage had been executed and delivered, he did not learn of its insertion until after the commencement of this action.”

      The court found as conclusions of law:

      “First. That the mortgage executed by the defendant to the plaintiff was not invalidated by the insertion of the clause in question after the first execution of said mortgage by the defendant.
    “ Second. That said mortgage was executed and delivered by the ■defendant to the plaintiff for a valuable consideration, and became, in the plaintiff’s hands, a valid security for the payment of the sev■eral notes and draft set forth in the complaint.”
    Special findings were made at the request of the defendant, as ■follows: “ That when said mortgage was returned, executed by the •defendant to said Doheny, it did not contain the following clause in the condition thereof: ‘Also any and all notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser.’ ” It was also found: “ That said alteration was a material one.” Several other requests to find were made, which were refused by the court. Exceptions were taken to the findings, and to the refusals to find.
    November 11, 1890, judgment of foreclosure was allowed and -entered. Defendant appeals from the order denying the motion for a new trial upon the minutes, and also from the judgment. One •of the defenses contained in the answer was to the effect that the mortgage was given by the wife for a precedent debt of the husband, and that there was no consideration for its execution, * * * the appellant does not claim, therefore, to be entitled to reverse the finding of the jury on that issue because it is against the evidence, •or without evidence to support, but only on the ground of erroneous rulings in regard to that evidence. She claims to reverse the findings on the other issues upon the ground they are without •evidence to support them, and against the evidence.”
    The property covered by the mortgage is a tract of land on James street, said to be worth from twenty to thirty thousand dollars. It appeared in the evidence that the El Oro Mining Company is a corporation having a mine in the [Republic of Mexico, and that its capital stock is $10,000,000, divided into shares of $100 each. William N. Thompson of New York was the president of the company, and owned something over forty thousand shares of the stock; William T. Hamilton, the husband of the defendant, was its vice-president, and held some thirty-seven thousand shares of the stock. The company had issued bonds upon its property, some fifty thousand dollars of which the defendant owned in 1881. Some evidence was given tending to show that the stock held by Hamilton was purchased by him with his wife’s money, and afterwards turned over to her as. collateral for his indebtedness to her. It appears that Hamilton and Thompson, in the fall of 1881, valued the property at something like $2,500,000. In 1881, the Third National Bank of Syracuse held something like $128,000 of the paper of the mining couqaany indorsed by Thompson and Hamilton. The plaintiff became the owner of a large portion of this paper, and indorser upon a large amount of the paper. The mining company was unable to pay the paper when it became due. Mr. Doheny had been counsel for Mrs. Hamilton and Hamilton, and he commenced a. negotiation for an extension of this paper, and made efforts to obtain security to induce the extension. An extension was agreed upon on condition that the mining company pay $5,000 per month on its-indebtedness, and, as part of the arrangement looking to the extension, the defendant made the mortgage in suit. The mortgage was prepared under the direction of Mr. Doheny by Mr. Petit, then a clerk in Doheny’s office. The acknowledgement and certificate thereof was taken and made by John C. Keeffe, a notary public, who for many years was in the employ of the defendant and her husband, and on intimate terms with them. After such acknowledgment it wás delivered to Doheny for the plaintiff.
    At the time the mortgage was given it seems to have been understood that it should not be immediately recorded. After the mining company failed to pay $5,000 a month, pursuant to the extension, the mortgage was recorded. The evidence tends to show, and satisfactorily supports, the finding that the plaintiff had no knowledge of the insei’tion of the disputed clause in the mortgage after the execution of the mortgage, and that he first learned thereof after the commencement of this action. The indebtedness which the plaintiff seeks to enforce in this action is described in the mortgage,, and the language used therein, as the mortgage was first drawn; it is not necessary to resort to the disputed clause in order to apply the language of the mortgage to such indebtedness.

      W. G. Tracy, for the appellant.

      Louis Marshall, for the respondent.
   Hardin, P. J.:

Evidence given before tbe circuit and before tbe Special Term satisfactorily establishes the fact that the plaintiff had no knowledge of -the making of the alleged alteration prior to the commencement of this action; and that such alteration and addition were made without his personal request or procurement, and without any fraudulent intent on his part. The evidence and findings are entirely satisfactory that the plaintiff did not, and does not, rely upon the disputed words to cover the indebtedness for which the mortgage is sought to be enforced. Under such circumstances, if it be assumed that the alteration or additional clause was inserted by Doheny without an original authority from the defendant, or a reacknowledgment of the execution of the instrument by her after the words were inserted, ought the mortgage as first drawn to be destroyed or held for naught ? Clearly the plaintiff never intended any fraud, nor consciously consented to any destruction of the instrument which gave him a lien on the defendant’s property as it was first drawn and executed. Notwithstanding the additional words or alterations, the instrument as first drawn was still legible, and its meaning and purport ascertainable; and the added words should be treated “the same as if such alteration had been made by a mere stranger without the privity or consent of the party interested.” (Henfree v. Bromley, 6 East, 309.) The case last cited was referred to approvingly in Reese v. Overbaugh (6 Cow., 746.) In the latter case the instrument from which the seals were torn had been left with Jackson for safe-keeping, and it was said by the court, in the course of the opinion, that “ he had no power to cancel the contract, or to interfere in any other way with the plaintiff’s right to recover the remaining balance of $500. In tearing the seals from the agreement, therefore, he did not act as the authorized agent of the plaintiff, but as a stranger.” The latter case was quoted approvingly by Andrews, J., in Casoni v. Jerome (58 N. Y., 321), in which case it was held, that the insertion in a bond b ya clerk in the Surrogate’s Court of words unauthorized did not “ relieve the obligors from liability under ’it, .as originally executed.”

In Martin v. Tradesman's Insurance Company (101 N. Y., 498), Huger, Ch. J., said: “ The rule is well established, that an alteration of a contract under wliicb. a plaintiff claims, made by a defendant or some third party, without the plaintiff’s consent, and while the contract is out of plaintiff’s hands, has, no effect, and the contract will remain as it originally stooc], provided the nature and extent of the alteration can be clearly ascertained, and it can be seen what the contract was at the time it was executed.”

In Bigelow v. Stilphen (35 Vt., 521) the plaintiff’s agent received defendant’s note for goods, the agent, without the knowledge or assent of either party, so changed the note as to make it joint and several and payable with interest; and when an action was brought upon the note it was held that its principals could recover upon it as it stood before the alteration took place. In the course of the opinion in that case it was said, clearly it is not just that a man should be deprived of an honest debt, or have the evidence of it destroyed for all beneficial purposes in consequence of the misconduct of a stranger to whose act he did not assent, and of which he had no knowledge; ” and it adds: “ It is the intent that gives the act its character and avoids the instrument, and it is difficult to understand why a man who has done no wrong, nor consented that any should be done, should be punished to the extent of the amount of his demand by having his claim canceled by operation of law, solely because another has been guilty of an act for which he ought to be punished. Public policy does not require any such rule.” And in Robertson v. Hay (91 Penn. St. Rep., 242) it was held that the alterations of a mortgage were to be deemed as those of a stranger, although the alterations were made by Gill, who, as agent and attorney of the party, had possession of it. Similar doctrine was held in Hunt v. Gray (35 N. J. Law, 227), and in Nickerson v. Swett (135 Mass., 514).

Appellant calls our attention to Rogers v. Vosburgh (87 N Y., 228); that was a case where the answer alleged “ that after the making and delivery of said note, and before the commencement of this action, the note was materially altered by plaintiff without the knowledge or consent of defendants,” etc., and it was held that it was error to strike out the answer as sham and frivolous. We think the case does not aid the appellant. And Benedict v. Cowden (49 N. Y., 396), cited by. the appellant, was a case whei’e it was held the material alteration of a note took place by severance of a mem■orandum from the note which was an essential part of it. We see nothing in the ease aiding the appellant.

Our attention is called to Waring v. Smyth (2 Barb. Ch., 119); in that case it appeared that Waring, the mortgagee, “was guilty of the improper acts of altering a bond and mortgage ” and, therefore, he could not foreclose the mortgage, nor could his assignee have any relief to which the assignor would not have been entitled. In that •case, however, it was asserted that “ an alteration by a stranger without the privity or consent of the party interested will not render the deed void where the contents of the same as it originally existed can be ascertained.”

Appellant calls our attention to Marcy v. Dunlap (5 Lansing, 365); when the mortgage in that case wras delivered it did not. describe the defendant’s property; subsequently the description was changed; and in an action to reform the mortgage by changing the description from lot 26 to lot H, and for a foreclosure thereof, it was held that the mortgage was vitiated and was incapable of being enforced by the plaintiffs. The case differs widely from the one before us. In the course of the opinion,'however, it seems to be stated that the modern cases hold that if the alteration is the act of a mere stranger while the deed or mortgage is out of the possession of the grantee or mortgagee, and without his knowledge or consent, it does not work a destruction of it.

When the mortgage was acknowledged by the defendant it contained a clause to the effect “ that the said party of the first part, in consideration of the sum of $30,000, has sold, and by these presents does grant and convey to the said party of the second part,” etc.; and the further clause that, “ this grant is intended as a security for the payment of any and all notes made by the El Oro Mining Company and indorsed by William T. Hamilton and William N. Thompson, and now heljl and owned by the party of the second part, and of any and all renewals of said notes; and also to secure said second party from all loss by reason of his liability as indorser upon any and all notes made by said El Oro Mining Company, and indorsed by said Hamilton and Thompson, and any and all renewals thereof.”

The lien given to the plaintiff by the mortgage secured the indebtedness mentioned in the language we have just quoted; that indebtedness has not been discharged, and it is equitable that the mortgage should remain to the extent of $30,000 as collateral to such indebtedness; in the event of that indebtedness being discharged, or a portion of it discharged, it may be claimed,'in behalf of the defendant, that the lien as originally created should cease, or be restricted to the amount remaining unpaid on that indebtedness. No such question, however, seems to have been presented at the Special Term or provided for in the formal judgment which was entered; perhaps the defendant, if the mortgage is held valid in virtue of the views already expressed, would be entitled to have the judgment qualified in that respect. We may afford her an opportunity to have the judgment modified by an insertion of such additional provision, if she should be so advised.

In corroboration of the views already expressed, it may be observed that on the 17th of March, 1885, the defendant and the plaintiff entered into stipulations by an instrument under seal, acknowledged on that day before the same notary who took the acknowledgment to the mortgage. In that instrument, which related to the indebtedness of the El Oro Mining Company, held by the plaintiff, and upon which the husband of defendant was liable, it was agreed, among other things, that, “ as long as the whole of the net proceeds of said mine are applied to the payment of said paper monthly, provided such monthly payments amount to $5,000 each,” no proceedings were to be taken to enforce the payment of the commercial paper of the mining company ; and in that instrument it was further provided, viz.: It is agreed by the subscribers, W. T. Hamilton and E. M. Hamilton, that all property and security held by said Gleason or the said Third National Bank as collateral to the indebtedness or liability of said W. T. Hamilton to said bank or said Gleason shall be held, and the same is hereby pledged to said Gleason as security for the payment of said notes so to be purchased by him, except as hereinafter provided. 5. Upon the completion of the purchase of said notes by said Gleason in the manner aforesaid, the twenty-five bonds of said mining company, and the stock of the Onondaga Iron Company, now held as collateral to said notes, shall be held as collateral, first, to a certain other $30,000 note of the Morris Run Coal Company, on which said Hamilton and Lynch are liable as indorsers, and after said last-mentioned note is paid, then said securities shall be held as collateral to the other indebtedness of said W. T. Hamilton to said Gleason or said bank.” It may be said with considerable force that the effect of these stipulations on the part of the defendant with the plaintiff tend to support the position stated above, that the plaintiff is entitled to hold the mortgage as originally drawn until the indebtedness specified in the original draft of the mortgage is paid. Surely, when the instrument of March 17, 1885, was executed by the defendant, the plaintiff held the mortgage in suit as a security, and it was embraced within the expression “ all property and security held by said Gleason * * * as collateral to the indebtedness or liability of said W. T. Hamilton to said bank or said Gleason, * * * and the same is hereby pledged to said Gleason as security for the payment of said notes.”

It was insisted upon the trial at the circuit, and at the Special Term and in the argument before us, “ that the disputed clause was inserted in the mortgage with the knowledge and consent of the defendant; ” and the Special Term found: “ That said clause was written in said mortgage with the knowledge and consent of the defendant, Fannie M. Hamilton ; and after the same was written therein she assented to the same, and consented that it should form a part of said mortgage; ” however, it is insisted in behalf of the appellant that the finding is unsupported by evidence, and that the same is against the evidence in the case.

Mr. Doheny, who was called as a witness in behalf of the defendant, testified that the mortgage was prepared in behalf of the plaintiff, in his office, under his supervision, he testifies: “It came back to me executed the day that it was drawn, as I remember it, and at that time the clause referred to was not in the mortgage. Sometime after it came back to me this clause was written in; * * * I returned it to Mr. Hamilton, calling his attention to the interlineations, and asking for a re-execution of it; * * * my recollection is that he took the mortgage and went down to Mr. Hamilton’s office, two floors below our own, and called his attention to some language in the addition that had been made; to the fact that we had put it in, and asked that the mortgage be re-executed; and 1 can tell you, if you wish, what I think his reply was ; he said that John (the notary), would go over and take Mrs. Hamilton’s acknowledgment just as soon as he could.” A few days after that, the witness continues, that I went “ up stairs and found the mortgage in my office; I think I found it on my table in my room, but I am not sure about that; I was also the attorney for Mr. Hamilton, at this time, in various matters.” In the course of the examination of the defendant it appeared that she had authorized her husband to transact business for her in respect to the matters involved and inquired into in this action ; she testified: He managed everything; he had everything; ” and she added that he represented her in all transactions relating to her property.

Keeffe, the notary, was called, and while giving his testimony on the subject of whether the mortgage was reaclcnowledged or not, and in answer to the question whether he took a reacknowledgment, he says: “ I don’t think I did; ” and when asked whether he would swear positively, he says: “ I don’t think I did; ” and upon the question being put to him again, viz.: “ Q. Will you swear positively that you did not ? A. No; I would not swear positively that I didn’t; I took a great many acknowledgments about this time.” And when this witness was asked if he did not, sometime after the mortgage bears date, meet Mr. Doheny and inform him as to a second acknowledgment from Mrs. Hamilton, and that the mortgage had been left in Dolieny’s office, his answer was: “ I don’t remember any such conversation he was then asked: “ Do you swear that such a conversation did not take place? A. No; I have no re collection of any such conversation j” and the further question was put to him: “ Will you answer you didn’t have such a conversation ? A. I won’t swear positively that I didn’t, or that I did; I have no recollection of any such conversation; to the best of my recollection I didn’t.” When the witness, William T. Hamilton, the husband of the defendant, was upon the stand, he detailed the circumstances attending the execution of the mortgage, his knowledge thereof and his conversation with his wife in respect thereto. He admits that Mr. Doheny afterwards called upon him and said that he “ wanted 'to add a word to that mortgage,” and he adds, “ There were several conversations of the same kind, similar.”

On the 11th of November, 1884, the defendant executed a power of attorney to her husband, which was acknowledged on the nineteenth of November, wherein she appointed her husband her attorney, with authority as follows: “ For me and in my name, place and stead to conduct, carry on, transact and exercise the general control and supervision over all of the property, business and interests of whatever kind and wheresoever situated that I now or may hereafter own, hold claim or be interested in and to make, execute, sign, seal and deliver for me and in my name all bills, bonds, deeds, mortgages, notes, leases, specialties or other instruments in writing whatever, which shall be necessary to the proper conducting, carrying on and transacting the business aforesaid, and to do and perform all and every act and deed of whatever name or nature in anywise appertaining to said business, property or interests, binding me as firmly and irrevocably by such deed or performance as if I were myself present thereto consenting, hereby ratifying, confirming and allowing whatever my said attorney shall lawfully do in the premises.” This power seems to be very broad, giving him power to execute mortgages and to transact any and all kinds of business for her in respect to all property she then owned or might thereafter own, liold, claim or be interested in. The evidence abundantly shows that she was interested in the Mining Company and that she was affected by its credit, standing and indebtedness. It is not overlooked that she as a witness, and her husband as a witness, gave evidence tending to indicate that the mortgage was not reacknowledged after the clause in question was inserted therein ; however, with all the evidence to which reference has been made before the jury and before the Special Term, we are not prepared to say that the finding of the jury, or the finding of the court that the additional clause in the mortgage was inserted without her assent or subsequent ratification, which is equivalent to original authority. If her agent assented to it, she assented to it. It may not be said that the finding is unsupported by evidence tending to sustain it. As to whether the evidence given by her and given by her husband was sufficient to countervail the evidence to which reference has been made, or not, was a question for the jury and for the trial judge. He saw all the witnesses; heard all the circumstances we have alluded to, and many others ; he witnessed the searching cross-examinations and saw the bearing of the witnesses under the same, and when we give to his finding of fact such influehce as we think, with his better opportunities to judge of the same, it is entitled to, we are not prepared to say the finding of fact made at the Special Term is contrary to the weight of evidence ; we do not, therefore, feel called upon to disturb it.

The court-was authorized to “set aside tbe findings of the juryor use some of them, and to make the finding which is now brought in question.” (Hammond v. Morgan, 101 N. Y., 186; Acker v. Leland, 109 id., 11.)

Numerous exceptions were taken during the progress of the trial before the jury, and apparently were renewed at the Special Term, and numerous exceptions were taken to the findings of fact and law, as made by the trial court, and to the refusals to find, and they have been largely discussed by the appellant before us. We have looked at them; this is an equity action, and section 1003 of the Code applies; and in that section it is provided : “An error in tbe admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion that substantial justice does not require that a new trial should be granted.” The views already expressed, if adopted, seem to warrant the conclusion “ that substantial justice does not require that a new trial should be granted.”

Ye forbear an extended examination of the exceptions, and we are of the opinion that the orders and conclusion reached at the Special Term should be sustained.

Martin and Merwin, JJ., concurred.

Order affirmed; judgment affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    ADDISON J. LYON, Appellant, v. WILLIAM A. MORGAN and Others, Respondents.

      Estoppel — laches — effect of a failure to cut off the equity of redemption — day in court.

    Joseph and Silas Carman, father and son, were, on November 23,1883, the owners of a tract of land, the record title of three-quarters of which was in Joseph and one-quarter in Silas. On that day Joseph, stating that he was the owner in fee of the whole tract, borrowed, upon his bond and a mortgage upon the tract, of Albert Smith, as guardian of an infant, theyum of $10,000. Silas was present, claimed no title in himself, and further stated that he had none, and Smith loaned the money in reliance upon these statements of the Carmans.
    In June, 1888, a bank recovered a judgment against Silas, under which, in October, the sheriff sold his interest in the premises in question to Addison J. Lyon, and in January, 1890, the sheriff executed a deed of the premises to Lyon. In December, 1888, Smith foreclosed his mortgage, but he made neither the bank, nor Silas, nor Lyon a party to the foreclosure suit.
    Upon the foreclosure sale, in February, 1890, William A. Morgan became the purchaser, both Morgan and Lyon knowing nothing when they took their deeds of the representations made by Silas at the time of the loan.
    In an action for partition, brought by Lyon against Morgan:

      Held, that there existed no equitable estoppel as against Lyon.
    That a party setting up an estoppel must be free from laches.
    That an examination of the records would have shown the title of Silas, and also the judgment of the bank, the execution, the sheriff’s certificate of sale and his deed.
    That the representations of Silas were not made in a negotiation for the title, but to acquire a lien by mortgage.
    That as he was not made a party to the foreclosure, his equity of redemption had never been cut off nor that of his successors in interest, and the technical legal title remained in him on which the judgment against him was a lien.
    That before Lyon’s rights could be cut off he should have been given an opportunity in court to claim that the mortgage should be satisfied first out of the parcel of Joseph before resort was had to his own.
    Appeal by tbe plaintiff Addison J. Lyon from a judgment of tbe Supreme Court, entered in tbe clerk’s office of the county of Broome on the 4th day of June, 1891, dismissing tbe complaint upon the' merits after a trial at tbe Broome Special Term by tbe court.
    Tbe action was brought for tbe partition of real estate, consisting of sixteen acres of land in tbe village of Port Dickinson.

      Plaintiff alleges lie is the “ owner in fee simple, and is the holder and is in possession of the equal undivided one-fourth of all that tract or parcel of land, situate in the town of Binghamton, county of Broome and State of New York, containing about sixteeen acres of land.”
    The answer denies the ownership, and alleges the fee and right of possession to be in "William A. Morgan, and also alleges that “ November 23,1883, one Joseph Carman being in possession of, and claiming to be the actual owner in fee of premises described in the complaint, executed and delived to one Albert Smith, as guardian of the property of Frank Albert Smith, his bond to secure the payment of the sum of $10,000, and as collateral security to the payment thereof, at the same time he and his wife duly executed, acknowledged and delivered to said Smith a mortgage upon said premises and other lands.”
    And that the mortgage was taken “ upon the faith and belief of said Smith, that said Joseph Carman was the sole owner of the lands described in the complaint and the other lands described in said mortgage, and that his title was not incumbered or subject to any lien, and the said Joseph Carman at the time affirming that he was the owner of said lands in fee, and that they were not incumbered, which said Smith believed to be true and knew nothing to the contrary.”
    . The answer also alleges “ that Silas N. Carman, the person through and under whom plaintiff claims to have received title, and whom the plaintiff alleged was the actual owner of the premises described in the complaint at the time said money was lent, and said bond and mortgage were executed and delivered, was present and knew of said loan of money, and heard the affirmation of said Joseph Carman that he was owner in fee of said lands, and knew that said money was lent and advanced on the belief that he was such owner; and he, said Silas N. Carman, at that time asserted no title or interest in said premises or claim thereto, but, on the contrary, expressly stated that he neither had nor claimed to have any right, title or interest in and to said premises, and consented and requested that said Smith, as such guardian, loan said $10,000, taking as security said bond and .mortgage. Wherefore defendant alleges that plaintiff and his predecessors in title, said Silas N. Carman, is estopped and barred from asserting any title or interest in said premises as against this answering defendant, and this defendant’s title is superior and paramount to that of plaintiff or his predecessor.”
    The answer alleges the foreclosure of the mortgage, and that William A. Morgan became the purchaser of the premises for $6,800, and became the owner in fee of the said premises and every part thereof.
    The trial court found that “Joseph Carman became the owner of an undivided three-fourths of said sixteen acres * * * and was such owner on the 23d day of November, 1883.”
    Also found that “ Silas N. Carman became the owner of the remaining undivided one-fourth of said sixteen acres * * * and was such on the 23d day of November, Í883.”
    Also found that, “ on the 23d day of November, 1883, the said Joseph Carman applied to one Albert E. Smith, as general guardian of Erank Albert Smith, a minor, through the latter’s agent, William E. Taylor, for a loan of ten thousand dollars ($10,000), to be secured by a mortgage on said 16 acres, with other lands. Said application was made by Joseph Carman in person, and he was accompanied at the time by said Silas N. Carman. At the time of the making of said application, said Taylor, acting as agent as aforesaid, inquired of said Silas N. Carman if he had any interest in the said lands, including the said 16 acres, and Silas replied that he had not any such interest. Joseph Carman also, at that time, stated that he owned the whole of said premises, which statement said Silas N. Carman did not contradict in any way. Said William E. Taylor, as agent for said guardian aforesaid, upon the date last mentioned, loaned to said Joseph Carman the sum aforesaid, and said Joseph Carman, to secure the same, on that day executed, acknowledged and delivered to the said Taylor, acting for said guardian, a mortgage, in and whereby he granted to said guardian, his successors and assigns, said 16 acres, with other lands, which grant was given as security for the payment of the sum aforesaid, and interest thereon. Said loan was made and mortgage taken and accepted by said Taylor on behalf of said guardian, relying upon the aforesaid statement of Silas N. Carman, and he acted and depended on said statement in so doing.”

      From the evidence it appears that a foreclosure of the mortgage was commenced about December 1, 1888, and a judgment of foreclosure was entered in December, 1S89, and a sale thereunder was made by the referee February 11, 1890, and William A. Morgan became the purchaser upon a bid of $6,800, and took the usual referee’s deed. William A. Morgan gave back a mortgage to the defendant Waterman, as guardian of Frank Albert Smith (he having became such guardian), in the sum of $5,000.
    Silas N. Carman was not made a party to the foreclosure action; nor was Addison J. Lyon, the plaintiff, made a party to the foreclosure action.
    The First National Bank of Binghamton on the 16th day of June, 1888, recovered a judgment against Silas N. Cai-man upon a promissory note made by him for $650, and against Wilson Culver, Charles IT. Culver and Addison J. Lyon (the plaintiff here), who were indorsers upon such note. An execution was issued upon that judgment on the 16th day of June, 1888, to the sheriff of Broome county, who, having received the full amount of the execution October, 1888, returned the same satisfied October 24, 1888 By the sheriff’s certificate of sale, it appears that on the twenty-fourth day of October, under the execution, he sold to Addison J. Lyon, for $762.95, all the interest, right and title of Silas N. Carman in and to the undivided one-fourth part of said sixteen acres. The certificate was recorded January 8, 1889, and on the 25th day of January, 1890, the sheriff executed to Addison J Lyon a conveyance of the equal undivided one-fourth part of the sixteen acres of land which was recorded January 26, 1890.
    The Special Term found as conclusions of law: “(1.) That Silas N. Carman and his privies and successors in interest, including the •plaintiff herein, are held and estopped by his acts set forth in the fifth finding of facts, and by the matters set forth in the sixth and seventh findings of fact, from claiming any interest in said sixteen acres as against said mortgagee, his privies, successors in interest, including the defendant Morgan and the defendant Waterman. (2.) That the defendants Morgan and W atenúan are entitled toa judgment dismissing the complaint upon the merits, with two bills of costs.”
    The court also found that Silas N. Carman, after the death of Abram Be vier, which occurred in January, 1871, “entered into possession of said premises with, the other joint owners, and so continued in possession until possession was taken by Addison J. Lyon, the plaintiff in this case as hereinbefore stated.”
    It was also found: “ There is no evidence that said Lyon, prior to his taking said deed from the sheriff, ever had any notice that said Silas N. Carman had stated to said Albert E. Smith, guardian, or to said Waterman, or to any person, that Joseph Carman owned the whole title, or that he, said Silas, had no part of the title.”
    It was also found: “ There is no evidence that said William A. Morgan was informed of the representations made by said Silas N. Carman at the time of the loan of the said $10,000, or that he bid off said premises on the mortgage sale relying upon any representations made by said Silas N. Carman.”
    The court declined to find “ that Addison J. Lyon, the plaintiff, is the owner in fee of the equal undivided one-fourth of said premises.”
    Exceptions were taken to the findings of fact and to the refusals to find.

      Edward K. G I'ark, for the appellant.

      George Bowen, for the respondent Morgan.

      I). S. Bichareis, for the respondent Waterman.
   Hardin, P. J.:

Appellant claims to be the owner of an undivided one-fourth part of the parcel of land known as about sixteen acres described in the complaint. He holds a deed from the sheriff, which was recorded in Broome county on the 28th day of January, 1890, having purchased the interest alleged to be in Silas N. Carman on the 16th day of June, 1888, on which latter date a judgment in favor of the First National Bank of Binghamton was docketed against Silas N. Carman for $668.58 damages, and $24.03 costs. According to the evidence, and to the findings of fact made, on the 16th day of June, 1888, when the judgment was docketed, Silas N. Carman held the record title to the one undivided fourth part of the premises described in the complaint. The proceedings for the sale of that interest upon the judgment, the purchase by the plaintiff, the certificates delivered to him and the deed received by him, seem to be regular in form and sufficient to pass the formal, legal title to the plaintiff. Plaintiff’s bid at the sale was $762.95, and he seems to have paid $57.61 expenses of the sale. However, the respondents claim to defeat the title of the plaintiff by reason of an alleged estoppel. It appears that on the 23d of November, 1883, Joseph Carman, the father of Silas, desired to obtain a loan of $10,000 upon certain other lands adjacent to the sixteen acres, and that in the negotiations and applications for the loan, Silas joined his father, and upon being questioned as to his interest in the sixteen acres, “ denied having any such interest or claim ,• and acting and relying upon this information, and not knowing anything to the contrary, the loan was consummated and a mortgage taken on the 16 acres, as well as others, to secure the $10,000 loan.” The mortgage was recorded. After the docketing of the judgment already mentioned an action to foreclose the mortgage was commenced on the 1st of December, 1888, and the proceedings were had in the action, usual in such cases, resulting in a judgment in foreclosure, and upon such judgment a sale was made on the 11th day of February, 1890. Silas N. Carman was not made a party to that foreclosure; nor was the bank, the judgment-creditor, nor the plaintiff in this action. At the mortgage foreclosure sale on the 11th of February, 1890, the defendant, William A. Morgan, bid off the premises and received a deed from the referee conducting the sale, which was recorded February 20, 1890. If he had, at the time of making his bid, made a diligent search of the record, he would have discovered the record title to have been in Silas N. Carman at the time the bank recovered the judgment against him on the 16th day of June, 1888, and that the premises had been sold, sheriff’s certificate given, and that no redemption had taken place, and that a sheriff’s deed had been delivered and recorded carrying the formal, legal title to the plaintiff. The trial judge has found that “ there is no evidence that said William A. Morgan was informed of the representations made by said Silas N. Carman at the time of the loan of the said $10,000, or that he bid off said mortgage premises on the mortgage sale, relying upon any representations made by said Silas N. Carman.” .

He has also found that, at the time the loan was made upon the mortgage, inquiry was made of Silas N. Carman if he 'had any interest in the sixteen acres, and that he “ replied that he had not any such interest; Joseph Carman also, at that time, stated that he ■owned the whole of said premises, which statement said Silas N. Carman did not contradict in any way.”

He also found, Said loan was made and mortgage taken and accepted by said Taylor on behalf of said guardian, relying upon the aforesaid' statement of Silas N.. Carman, and he acted and depended on said statement in so doing.”

As a conclusion of law the Special Term found : That Silas N. Carman and his privies and successors in interest, including the plaintiff herein, are held and estopped by his acts set forth in the fifth finding of facts, and by the matters set forth in the sixth and seventh findings of fact, from claiming any interest in said sixteen .acres as against said mortgagee, his privies, successors in interest, including the defendant Morgan and defendant Waterman;” and thereupon he ordered the complaint dismissed, with costs. Reasonable exceptions were taken to the findings and to the refusals to find.

If the parties taking the mortgage had been vigilant in searching the record for the title or any incumbrance upon the sixteen acres, .they would have learned that the title of one undivided fourth was in Silas N. Carman. So, too, if the party foreclosing the mortgage had, at the commencement of such suit, to wit, the 1st of December, 1888, after learning of the title of one undivided fourth being in Silas N. Carman, they would- have discovered a judgment against him, as the bank judgment was recovered On the 16th day of June, 1888. So that it may be observed that diligence at the time of the loan; diligence at the time of the commencement of the action; diligence pending the foreclosure action and prior to the sale which was in February, 1890, in the mortgage suit, would have disclosed the record title and the facts and circumstances now relied upon by fhe plaintiff. However, it is insisted, in behalf of the respondents, that the estoppel is efficient and precludes the plaintiff from asserting legal title to the undivided fourth in the sixteen acres. We think otherwise. In Thompson v. Simpson (128 N. Y., 270) the doctrine of estoppel, as applicable to real estate, is very extensively •considered, and its effect upon transactions in respect to the real estate; it is there said, “ the doctrine of equitable estoppel, when invoked to bar the legal title to land, should be cautiously applied, and only when the grounds for its application are clearly and satisfactorily established.” In Trenton Banking Company v. Duncan (86 N. Y., 230) it was said: £i The party setting up the estoppel must be free from the imputation of laches, in acting upon the belief of ownership by one who has no right.”

When the representations were made by Silas N. Carman, the parties were negotiating for a loan to be secured by a lien upon real estate; they were not negotiating for the title. A mortgage was. executed which simply gave a lien upon the real estate owned by Joseph Carman, and it was then assumed by the lender, and sucli assumption was justified by the representation made by Silas, that Joseph was capable of creating a lien upon the whole sixteen acres,, giving full force and effect to the representation and binding Silas Carman, by reason thereof, to the full force and effect of the mortgage lien, it may be said that only a mortgage lien was created. Joseph did not undertake to convey the title to the sixteen acres,, and the effect of the representation made by Silas simply induced the lender to take a lien upon the premises. If it be assumed that the full force of the representation is to be given to the mortgagee and those holding under him, still the mortgagee and those holding under him only acquired, in virtue of the representations, a lien upon the premises. If Silas N. had joined in the mortgage, certainly he would have been a necessary party to the foreclosure ; he would have had a right of redemption; and if full force is given to his representation, it only secures to the mortgagee and those claiming under him the right to enforce a lien upon the undivided fourth of the sixteen acres. Silas N. Carman, as before observed, was not made a party to the foreclosure suit; nor was his judgment-creditor made a party, nor was the purchaser at the execution sale upon the judgment against him made a party, and, so far as the equity of redemption which remained in Silas was concerned, it never has been cut off. Silas, notwithstanding the representation made by him, which induced the party to take a lien, was entitled to redeem the mortgage; his judgment-creditor was entitled to redeem, and the purchaser at the execution sale was entitled to redeem. Hence it follows that the plaintiff has never been divested of the legal title which he acquired perforce of ’ the judgment, execution, sheriff’s certificate and sheriff’s deed. It seems that the doctrine of estoppel was carried too far when the conclusion was reached’ at the Special Term that the plaintiff had no standing to maintain partition. In Ackley v. Dygert (33 Barb., 176), it was said: “A person cannot be divested of Ms property by being ignored. He lias a right to a day in court before that power can be rightfully exerted.” The extent of estoppel depends upon equitable considerations. (See 2 Pom. Eq., § 813; Campbell v. Nichols, 33 N. J. L., 81.) And, therefore, each case is governed largely by its own particular circumstances. It cannot be successfully asserted that the mortgagee, in parting with his money upon the representation that was made to him, which is now insisted upon by way of estoppel, acquired any more than a lien upon the premises. For the purpose of acquiring a lien, the mortgagee may be said to have relied upon the representation. If he is considered as the holder of a lien upon the property, he is allowed all that equitably he can claim he acquired by reason of the representation that was made at the time of the loan. It seems reasonable that before such a lien should ripen, a party succeeding to the legal title of Silas —through the instrumentality of the bank judgment, the execution thereon, the sale, certificate of sale, failure to redeem, the deed given in pursuance of the sale — should be given an opportunity to protect his right by requiring the mortgagee to resort to the other property embraced in the mortgage first, and only resorting to the property acquired by the plaintiff for the purpose of recovering any sum necessary to liquidate in full the lien thus acquired. It does not seem appropriate at this time to fully consider and determine all the equities the defendant may be entitled to assert, inasmuch as the evidence upon a new trial may differ from that before us in the present case. Ve forbear further comment, having reached the conclusion that the technical legal title of Silas N. Carman did not pass from him by virtue of the mortgage, but remained in him, and was acquired by the plaintiff in virtue of the deed which he placed upon record before the foreclosure sale, and the deed given thereafter, which was subsequently recorded.

If these views are correct, the judgment of the Special Term should be reversed and a new trial ordered, with costs to abide the event.

Merwin, J., concurred; Martin, J., not sitting.

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


author: Hardin, P. J.: Martin, J.: Merwin, J.:

text:
    GEORGE H. BEATTYS, Respondent, v. THE TOWN OF SOLON, Appellant.

      Hailroads — m'ganimtion of — affidavit relative to payment of ten per cent on the stock — its suffiiciency — past-due coupons — interest thereon.

    An affidavit, relative to the-organization of a railroad under tbe general railroad act, complied with the statute and stated that at least ¡$1,000 of stock for every mile of road proposed had been subscribed, and that ten per cent in cash had been paid thereon.
    Upon the trial of an action involving the validity of the organization of the railroad some of the subscribers to the stock gave evidence tending to show that they had paid nothing.

      Held, that the affidavit was sufficient.
    That if ten per cent had, in fact, been paid, it was not material that some subscribers had failed to pay any part of it.
    Although the coupons of a railroad bond are themselves obligations for the payment of interest, they bear interest after maturity. (Hardin, P. J., dissenting on this point.)
    Appeal by tbe defendant, the Town of Solon, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Cortland on the 21st day of May, 1891, after a recovery by the plaintiff of $3,893.39 and costs on a trial at the Cortland Circuit before the court without a jury.

      Bouton <& Ghamrplvn and Bouis Marshall; for the appellant.

      Edwm'd P. Thomas and H. D. Newton, for the respondent.
   Hardin, P. J.:

It is found that “ The Htica, Chenango and Cortland Railroad Company * * * was a railroad corporation, duly organized under the general railroad act of this State by the due filing of its articles of association April 9,18T0, and that it thereupon became incorporated for the purpose of constructing a railroad from the town of Cortlandville, through the said town of Solon and the said town of Taylor, in the county of Cortland, in the town of Otselic, in the county of Chenango, in the State of New York.”

It is also found: Its articles of association were filed in the office of the Secretary of State April 9, lS'fO, and previous thereto one thousand dollars of stock for every mile of railroad proposed to be made, to wit, thirty-two miles, had been subscribed thereto, and ten per cent paid thereon in good faith; and there was indorsed thereon or annexed thereto an affidavit, made by three of the directors named in said articles, that the said amount of stock as required by law had been in good faith subscribed and ten per cent paid thereon in cash and in good faith.”

TTpon the trial some of the subscribers for the stock were called as witnesses, who gave evidence tending to show they paid nothing on their subscription ; and some of them “ that they had an agreement with the individuals soliciting or taking their subscriptions, that they need not pay their ten per cent;” and some of them testified that they had a like agreement that they need not pay anything ; but they testified “ they knew they were bound by the instrument,” and also “ that they intended to make good articles; ” and they also admitted “that the agreement was a private affair between them and the person soliciting their subscriptions,” and that they subscribed, so far as the articles were concerned, in good faith and honestly.

It appeared that the corporation, as such, was not connected with the alleged agreement, and that it had twice made calls for the payment upon the stock. There is no proof that ten per cent on the thirty-two thousand dollars subscription had not actually been paid; on the contrary, it appeared in the affidavit of the three directors attached to the articles, in accordance with the requirements of the act of 1850, that ten per cent had been paid upon the thirty-two thousand dollars. It also appeared in the evidence that the corporation had proceeded to grade its road for several miles, building bridges and culverts, and had expended some $200,000 or more on the same, with a view of completing and operating its road. It is contended by the learned counsel for the appellant that “ no valid corporation having been organized the entire issue of bonds was void.” We think' the position untenable.

If any such agreement was made prior to the subscription or contemporaneous with the act of subscribing to the articles as mentioned by the witnesses to which reference has been made, the same was a fraud upon the law and one that could have no effect and could receive no force. (Tuckerman v. Brown, 33 N. Y., 297.) We think the act of 1850, under which the railroad was organized, did not require that each subscriber should pay, before the articles could be deemed efficient, ten per cent upon their subscriptions. (The Eastern Plank Road Company v. Vaughan, 14 N. Y., 546.)

In Lake Ontario, Auburn and New York Railroad Company v. Mason (16 N. Y., 451), it was held, viz.: “ It is not necessary to the incorporation of a railroad company under the general act, that ten per cent be paid upon the amount of each subscription at the time of making the same, or previous to the filing of the articles of association' with the Secretary of State. It is sufficient if the cash payment, by whomsoever made, amount in the aggregate to ten per cent upon one thousand dollars for each mile of road proposed to be • constructed.”

In Farnham v. Benedict (107 N. Y., 159), the subscriptions were less than the amounts required, and no part thereof was paid in cash, and there was not a compliance with the act of 1850; the case therefore differs from the one before us.

Here the affidavit of three of the directors attached to the articles of association states: “ That at least $1,000 of stock for every mile of railroad proposed to be made by the terms of said articles of association has been in good faith subscribed thereto ; that ten per cent in cash has been paid thereon in good faith, and that it is intended in good faith to construct, maintain and operate the road mentioned in said articles of association.”

In Schenectady and Saratoga Plank Road Company v. Thatcher (11 N. Y., 111), it was held that a similar affidavit for a similar purpose was sufficient, and the objections thereto were overruled.

In Buffalo and Pittsburgh Railroad Company v. Hatch (20 N. Y., 161), it was held that such an affidavit “ is sufficient evidence that at least $1,000 of stock for every mile of road proposed is subscribed and paid.” In considering a similar affidavit in that case Grover, J., stated: The affidavit in this case proves these facts. Whether the public interest requires further restrictions is a question for the legislature.”

It appeared here that by chapter 351, Laws of 1872, the legislature recognized the existence of the Utica, Chenango and Cortland Railroad Company; it is competent for the legislature to recognize the coritinner) existence of the corporation. (In re N. Y. Elevated Railroad Company, 70 N. Y., 327, 336.)

In Black River and Utica Railroad Company v. Barnard (31 Barb., 260), Pratt, J., observed: “ But when the proceedings are regular upon their face, and the company while in the actual exercise of all its corporate functions is recognized by the law-making power of the State as a corporation, it becomes by such recognition ipso facto a legal corporation. (9 Wend., 380; 3 Comst., 470.) ”

Upon the argument of the appeal before us it was insisted, in behalf of the appellant, “ the petition presented to the county judge failed to state the jurisdictional fact that the subscribers were a majority of the taxpayers of the town whose names appeared upon its last preceding tax-list or assessment-roll as owning a majority of the taxable property in the corporate limits of the town; ” also, that “ the bonds issued by the railroad commissioners exceeding twenty per cent of the entire taxable property within the bounds of the town, as shown by the last preceding tax-list, was unauthorized and void; ” also, that “ the bonds having been issued without seals did not conform to the requirements of the bonding act, and were, therefore void; ” also, that “ the $24,000 of bonds issued on October 14, 1872, after the entire authorized issue of $44,800 of bonds had been delivered to the railroad company, was without legal authority and void; ” and also, that, “ although the statute fixes tlie term of payment of these bonds at 30 years, the time actually intervening between the date of their issue and the date of payment was twenty-eight years and less, thus violating a material provision of the statute; ” and various considerations and arguments were addressed to us in support of the positions thus taken. We think the questions are not open for further examinations in this court; they are all discussed in the opinion of Follett, J., speaking for this court in the case of the Town of Solon v. Williamsburgh Savings Bank (35 Hun, 1), and the opinion of Bradley, J., delivered in pronouncing an affirmance of our decision, as appears by the report thereof in 114 New York, 122. (See, also, Metropolitan Life Ins. Co. v. Bender, 124 N. Y., 47.)

It was admitted upon the trial “ that the plaintiff is the owner of the coupons set forth * * * and that he purchased them in good faith and paid the par value thereof in cash without actual notice of any defect in the bonding of the town or the issue of the bonds.” The bonds from which- the coupons were cut were put in evidence, and it was conceded that the bonds were made payable to the treasurer of the railroad company or bearer, and that the same had been indorsed by the treasurer in blank. The seventeenth finding of fact is as follows: “ That the following is a copy of the coupons or interest warrants annexed to the bonds of plaintiff, excejit as to number and time of payment, to wit:

“ 17.50.

“ The Town of Solon will pay to Bearer at the National Park Bank of New York, seventeen, fifty-hundredths dollars on the 1st day of............,187. , being six months interest on its bond.

“ No........ “ LYMAN PECK, Jb.,

“ ORKIN RANDALL,

“ JOHN T. BUTMAN,

“ Commissioners.”

In the body of the bonds it was stated, viz.: “ The interest and principal of this bond are payable at the............, the interest upon presentation at said bank of the coupons hereto annexed as they respectively become due, and the principal sum upon presentation at said bank of this bond at its maturity. This bond is one of the series of bonds, in all amounting to $44,800, issued by the said town of Solon under and by virtue of a law of the State of New York, entitled an act to authorize the formation of railroad corporations and to i-egulate the same, passed April 2, 1850, so as to permit municipal corporations to aid in the construction of railroads, passed May 18, 1869.” The several bonds were registered in the office of the clerk of Cortland county and had indorsed thereon, viz.:

“Utica, Chenango and Cortland Railroad Company, pay to the order of............the within bond and coupon attached as they severally become due.

CoBTLANDVILLE,.......'....., 187...

(Signed.) “JAMES S. SQUIRES,

Treasurer of the UUea, Chenango and Cortlcmd Railroad Company.”

And the further indorsement, viz.:

“ State of New York. Town of Solon. .Bond No....., $500.00. Interest payable March 1st and September 1st, at National Park Bank, in the city of New York. -Registered in Cortland county clerk’s office, Book 1, page---- ££ a m PLACE,

Clerk?

In the twenty-first finding of fact it is stated that the sum of $2,681 was due upon the coupons held by the plaintiff upon a recovery as sought in this action; and it is found as a fact, in the twenty-second finding, “ That the interest upon said coupons from their several dates of maturity to the 31st day of October, 1889, the date of the trial of this action, is $963.35, to which sum should be added 44 cents for each day’s interest from said October 31,1889, up to the entry of judgment therein.” It was also found, That none of the aforesaid coupons were signed by the said commissioners, but their names yfere lithographed upon said coupons.”

It was found, as a matter of law, that the plaintiff is entitled to judgment against the defendant for $2,681 of the principal, with interest thereon from the date of maturity of the several coupons comprising such principal, with interest, amounting to $963.35 on the 31st day of October, 1889, to which sum of $963.35 there should be added $.44 for each day’s interest from said October 31,1889, to said entry of judgment, and for the costs of this action.” The defendant took numerous exceptions to the findings of fact and of law, and to the refusals to find, and among the exceptions is one to the conclusion of law that the plaintiff is entitled to judgment as stated. From the evidence and the findings of fact it is manifest that the several coupons held by the plaintiff were attached to the bonds for the convenience of the parties in the collection and payment of interest upon the bonds. The language found in the bonds, read in conjunction with the language found in the coupons, indicates that the coupons represent the several installments of interest accruing upon.the bonds and to become due at the periods referred to in the coupons.

In McClure v. Township of Oxford (94 U. S., 429) it was held: “ Where, upon their face, the coupons refer to the bonds to which they were attached, and purport to be for the semi-annual interest accruing thereon, the purchaser of them is charged with notice of all which the bonds contain.” In City of Lamsen (9 Wall., 482) it was said: “ Besides, the coupons are given simply as a convenient mode of obtaining payment of the interest as it becomes due upon the bonds; there is no extinguishment till payment.”

In City of Lexington v. Butler (14 Wall., 296) it was said: “ As the coupon, if in the usual form, is but a repetition of the contract in respect to the interest for the period of time therein mentioned which the bond makes upon the same subject, being given for interest thereafter to become due upon the bond, which interest is parcel of the bond and partakes of its nature and is not barred by lapse of time, except for the same period as would bar a suit on the bond to which it was attached. Coupons are substantially but copies of the stijralation in the body of the bond in respect to the interest, and are so attached to the bond that they may be cut off by the holder as matter of convenience in collecting the interest, or to enable him to realize the interest due or to become due by negotiating the same to bearer in business transactions without the trouble of presenting the bond every time an installment of interest falls due.” Beading the bonds and coupons together, the same force and effect is to be given to the language used as though the parties had jraovided in the bond that semi-annual payment of interest should be made upon the bond. If the bond had provided that thirty years from their date the principal was to be paid, and the interest was due and payable every six months at the rate of seven per cent, the contract, in effect, would have been the same as the contract between the parties evidenced by the bond and the several coujions. In the case supposed the language would all have been found in one instrument; the equivalent language is now found in the bonds and in the resjiective coupons. (Bailey v. County of Buchanan, 115 N. Y., 297.) No evidence was jiroduced upon the trial of a new jiromise to jiay interest upon the coujions or the sum rejiresented by them; nor is there any finding of fact that there was a new jraomise or agreement to J3ay interest upon the interest accruing upon the bonds and represented by the coupons. Nor was there any new consideration passed between the lender and the borrower to give force and effect to a new agreement if one had been made since the original loan. It. seems, then, the plaintiff is not entitled to recover interest on the coupons from the date of their maturity, and, so far as the finding and judgment allow interest from the date of the maturity of the several coupons down to the. date of the decision, the same was erroneous. (Stewart v. Petree, 55 N. Y., 621; Young v. Hilt, 67 id., 162.) Such interest so improperly allowed should be eliminated from the judgment. Interest is allowable from the date of the decision, to wit, October 31, 1889, according to .the provisions found in section 1235, Oode of Civil Procedure.

However, as a majority of the court are of the opinion that interest was allowable, the judgment will, therefore, be affirmed, with costs.

Martin, J.:

The only doubt I have as to the correctness of the presiding justice’s opinion in this case is as to that portion relating to the interest.

While it must be admitted that the general rule in this State is that compound interest can only be recovered upon some new and independent agreement after simple interest has accrued, and upon sufficient consideration, still, even to this rule, there are some acknowledged exceptions.

In Connecticut Mutual Life Insurance Company v. Cleveland, etc., Railroad Company (41 Barb., 9), it was held that if interest coupons annexed to a bond issued by a railroad company are not paid when due, interest should be allowed, by way of damages, for non-payment. It is said in Sedgwick on Damages (8th ed., § 345): “ Interest is almost universally allowed on the •overdue coupons of a coupon bond, though they are obligations for the payment of interest,” citing among other cases the following: Gelpcke v. Dubugue (1 Wall., 175); Aurora v. West (7 id., 82); Genoa v. Woodruff (92 U. S., 502); Koshkonong v. Burton (104 id., 668); Pana v. Bowler (107 id., 529); Scotland County v. Hill (132 id., 117); Rich v. Seneca Falls (19 Blatch., 558); Fauntleroy v. Hannibal (5 Dill., 219); Huey v. Macon County (35 F. R., 481); Harper v. Ely (70 Ill., 581); Humphreys v. Morton (100 id., 592); Jeffersonville v. Patterson (26 Ind., 15); Forstall v. Consolidated Association of Louisiana Planters (34 La. An., 770); Virginia v. Chesapeake and Ohio Canal Company (32 Md., 501); Welsh v. First Division of St. P. and P. R. R. Co. (25 Minn., 314); McLendon v. Anson Country (71 N. C., 38); Northern Pennsylvania Railway Company v. Adams (54 Pa., 94); Langston v. South Carolina Railway Company (2 S. Car., 248); Nashville v. First National Bank (1 Baxter, 402); San Antonio v. Lane (32 Texas, 405); Arents v. Com. (18 Gratt., 776); Gibert v. Washington C. V. M. and G. S. R. R. Co. (33 id., 598); Mills v. Jefferson (20 Wis., 50). These cases seem to hold that doctrine which is directly opposed to the opinion of the presiding justice in the case before us. I am of the opinion that the judgments in that respect were right and should be affirmed.

Merwin, J.:

I concur in the opinion of the presiding justice, except on the question of interest. The authorities cited by Justice Martin show conclusively that in a case like the present the rule is settled, so far as it can be without a direct decision from the Court of Appeals, that interest is allowable. As said in Town of Genoa v. Woodruff (92 U. S., 502), it is in entire accordance with the decisions generally of the State courts and of the United States Supreme Court. (See, also, 2 Daniel on Negotiable Inst. [4th ed.], § 1513, and cases cited.) This rule was distinctly laid down by the General Term of the first district in 1863 in Connecticut Mutual Life Insurance Company v. Cleveland, etc., Railroad Company (41 Barb., 9), and does not seem to have been questioned since in any reported case in this State. In Young v. Hill (67 N. Y., 162), which is relied on by the counsel for the appellant, the question, as it is here presented, was not involved or considered. In Bailey v. County of Buchanan (115 N. Y., 301) it is said by Judge Earl : “ It is true that past-due coupons, payable to bearer, when detached from the bonds are, for many purposes, independent, separate instruments. They may be negotiated and may be sued upon by the holder without the production of the bonds.” If so, it would seem to follow, as a matter of course, that they would draw interest like any other written obligation for the payment of money. The present action is not upon the bonds, but upon the coupons. It is not alleged in the complaint that the plaintiff is the owner of the bonds. It was conceded at the trial that he was the owner of the coupons set forth in the complaint and had purchased them in good faith and for value.

The statute under which the bonds were issued contemplated that the bonds would have attached separate instruments representing the several payments of interest, and I have no doubt the bonds and coupons or interest warrants attached are substantially in the form authorized and contemplated by the statute. The fact that the names of the commissioners, instead of being actually signed to the coupons, “ were lithographed upon said coupons ” does not make the coupons invalid. The commissioners adopted and delivered as their own the signatures in that form. (Brown v. Butchers and Drovers’ Bank, 6 Hill, 443; Pennington v. Baehr, 48 Cal., 565; McKee v. Vernon County, 3 Dill., 210; Schneider v. Morris, 2 Maule & S., 286; Daniel on Neg. Inst., § 74; 4 Am. and Eng. Encyl. of Law, 431.)

Under the authorities, I think the judgment, as it stands, is correct and should be affirmed.

Judgment affirmed, with costs.


author: Martin, J.:

text:
    DORMAN WALRADT, as Assignee for the Benefit of Creditors of FRANK M. PECK, Respondent, v. PHŒNIX INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant.

      Insurance policy — “unconditional ownership” — levy by sheriff — its effect on title and possession ■ — •increase of hazard — a question of fact — who is an “occupant”. of personal property.

    A policy of insurance upon the stock in a store provided that it should be void if the interest of the insured was other than the unconditional and sole ownership, or if any change, other than by the death of the insured, should take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or voluntary act of the insured, or otherwise.
    A judgment was recovered against the insured, execution was issued thereon, and on April i, 1890, the sheriff levied, as alleged, upon the stock insured. The sheriff made no inventory at the time, nor any indorsement upon the execution, but he closed the store, took the key and made a note of the transaction in his memorandum-book.
    A few hours later, and on April fifth, the store burned.

      In an action brought against the insurance company, by the assignee of the insured, to recover the loss under the policy:

      Held, that the clause in the policy, relative to unconditional and sole ownership, must be taken to refer to the ownership as it stood when the policy was issued, and not to any subsequent change or condition of the title.
    That, assuming the levy by the sheriff to be good, it gave to the sheriff only a lien, and that this did not, within the meaning of the policy, change the interest or title of the insured in the property.
    That, assuming that the sheriff, in aid of his levjq had taken possession of the goods, such change of possession did not avoid the policy, by its terms, unless it increased the hazard.
    That the question whether it did so increase it was one of fact, and that it was proper to submit that question to the jury.
    That, within the meaning of the policy, the sheriff became “ an occupant,” although the policy related only to personal property.
    Various uses of the word “ occupant,” stated.
    Arpe at. by tbe defendant, the Phoenix Insurance Company of Hartford, Connecticut, from a judgment" of the Supreme Court, entered in the office of the clerk of Jefferson county on the 20th day of December, 1890, upon a verdict for the plaintiff for $1,533.25 after a trial at the Jefferson Circuit before the court and a jury ; also from an order, made on the 11th day of December, 1890, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes of the court.
    The complaint alleged the issuing to the plaintiff’s assignor of a policy for $1,500 for the term of one year from April 13, 1889 ; that, on April 5, 1890, a fire occurred by which the insured property was entirely destroyed; that after the fire the assured, Prank M. Peck, executed and delivered to the plaintiff a general assignment of all his real and personal property, and that payment of the amount of the policy had been duly demanded and refused.
    The answer denied any knowledge or information sufficient to form a belief as to the destruction cf the property by fire or the assignment to plaintiff; admitted the service of notice of proofs of loss, and alleged, by way of defense, that prior to the fire the sheriff of Jefferson county had levied upon and seized the stock of goods covered by the policy of insurance by virtue of a judgment and execution in his hands, and was in possession of the same at the time of the fire; and that a change in the interest, title or possession of the subject of insurance had taken place prior to the fire ■without any consent therefor indorsed upon the policy, as required in such case, and that' the policy was, therefore, void at the time of the fire.
    On the 18th of February, 1890, John O. Hieber and others recovered a judgment against Frank M. Peck, the plaintiff’s assignor, for the sum of $1,019.13. The judgment-roll was on that day filed and judgment docketed in Oneida county. On the 19th of February, 1890, a transcript thereof was filed and judgment was docketed in the office of the clerk of Jefferson county.
    On the 2d of April, 1890, an execution upon this judgment was duly issued to the sheriff of Jefferson county, and was received by him on the third of the same month. On the next day the sheriff went to Theresa, where the plaintiff’s assignor resided, arriving there at about ten o’clock in the forenoon, and went to the store of the plaintiff’s assignor, to whom he exhibited the execution and informed him that he should make a levy under it upon the stock of goods in the store, but that he would not return to "Watertown until night, and he could have the day in which to pay the execution if he could. The sheriff claims to have made a levy upon the entire stock of goods in the store, and at the same time made an entry in his memorandum-book, which was as follows: “ April 4th, 1890. This day levied on stock of goods in store of F. M. Peck, Theresa, consisting of dry-goods, groceries, ready-made clothing, boots and shoes, hardware, etc., etc. John C. Hieber, David C. Wallace, J. F. Day and J. C. Roberts vs. F. M. Peck. T. J. Barrows, Attorney.” No indorsement was made upon the execution, nor was there any inventory made or possession of the goods taken, except that the sheriff remained in and about the village until between four and five o’clock in the afternoon, when, the execution not having been paid, he informed the clerk in the store that he should have to close the store. The clerk closed up the store, fastening the doors and locking the outer door, gave the key to the sheriff, who put it in his pocket and went to the railroad station. There he found Mr. Peck, and asked him for the other key of the store. Peck informed him he was trying to arrange for the payment of the execution, and did not want to give up the key just then, but wanted the sheriff to stay over night, assuring him that he would be able to get the money and close up the matter. This the sheriff finally consented to do and went to a hotel, informing Peck that they would find him there if they succeeded in getting the matter fixed up. About nine o’clock Mr. Yost, a banker residing at Theresa,, from whom Mr. Peck was trying to procure the money, went to the hotel, found the sheriff and delivered to him the other key, which had been in Peck’s possession, which the sheriff put in his pocket. The fire occurred a little before one o’clock on the morning of April fifth.
    At the close of the evidence a motion was made by the defendant that the court direct a verdict in its favor, or nonsuit the plaintiff upon the ground that prior to the fire there had been such change of interest, title and possession in the property by the levy of the sheriff as rendered the policy void from that time, and that there could be no recovery. The court, in effect, held that the words “ unconditional and sole ownership ” in the policy referred to a condition existing at the time when the policy was issued, and not to any subsequent or changed condition; also, that the condition in reference to change of interest, title or possession should be read in connection with the words “ except change of occupants without increase of hazard,” and it was for the jury to say whether the change of interest, title or possession, effected by the levy of the sheriff, increased the hazard. The defendant excepted to the refusal of the court to nonsuit the plaintiff.
    The question whether the hazard was increased by reason of the sheriff’s having levied upon the property of the plaintiff’s assignor was submitted to the jury. The jury found a verdict for the plaintiff for $1,533.25.

      A. 3. Sawyer, for the appellant.

      Thompson & Chapmam,, for the respondent.
   Martin, J.:

The controversy between the parties arose over a policy of insurance issued by the defendant to the plaintiff’s assignor. The latter was a merchant doing business at the village of Theresa, N. Y. The property insured consisted of goods of the kind usually kept for sale in country stores, and was contained in a three-story brick building owned and occupied by the insured. At the time of the fire tbe value of the property insured exceeded eleven thousand dollars. The policy in suit was for $1,500, and $5,500 concurrent insurance was permitted.

That the policy in suit was duly issued, the premium therefor fully paid and the property mentioned therein properly insured, are undisputed; nor does there seem to be any doubt that the property insured was destroyed by fire before the expiration of the time for which the policy was issued, and the value of the goods destroyed greatly exceeded the total insurance thereon. So far as appears on this appeal, the only ground upon which the defendant at the trial sought to avoid its liability was, that the sheriff of Jefferson county, before the fire, had levied upon the goods insured, by virtue of an execution against the plaintiff’s assignor. The claim of the appellant is, that when this levy was made the policy became void by reason of the conditions contained therein. The conditions relied upon were: “ This entire policy, unless otherwise provided by agreement endorsed' hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership, * * * or if .any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or otherwise!”

The trial court held that the condition in the policy that it should be void if the interest of the insured be other than the unconditional .and sole ownership related to the title of the property when the policy was issued, and not to any subsequent change or condition of the title. The whole policy, when read and construed together, tends to justify that construction. (Haight v. Continental Ins. Co., 92 N. Y., 51.) Yet, if it were to be held otherwise, it would be difficult to see how it could properly be claimed that the title of the assured to the goods in question was other than unconditional and sole ownership.

In examining this question, as well as in examining the question if any change had taken place in the interest, title or possession of the subject of insurance, except change of occupants without increase of hazard, we are disposed to hold that the sheriff made a valid levy •as between the parties. While his manner of making a levy was loose and quite uncertain, still we think it was, perhaps, sufficient. (Dean v. Campbell, 19 Hun, 534; Roth v. Wells, 29 N. Y., 471; Bond v. Willett, 1 Keyes, 377; Barker v. Binninger, 14 N. Y., 270; Elias v. Farley, 8 Keyes, 398.)

Assuming the levy to have been valid, the question is presented whether it changed the title so that it became other than unconditional and sole ownership, or produced any change in the interest, title or possession of the assured which rendered the policy void. Thus we are led to examine the effect of a valid levy upon the title of the i>roperty which is the subject of the levy.

In Miller v. Adsit (16 Wend., 349) the question as to the effect of a levy upon the title to property was somewhat discussed, and it was said: The sheriff lias, in fact, no property in the chattel levied upon, either general or special; he has no right to sell it at private-sale, nor to exercise any of the powers over it, which one having a property in it may exercise; his control or power over the chattel is of a peculiar character, perfectly sui generis, which the law has given him as an executive officer in order that the judgment of the court shall be enforced or carried into effect, and that the ends of justice shall be attained by satisfying the plaintiff’s demand out of the property of the defendant.”

Again, in People v. Hobson (1 Den., 578), in delivering the opinion of the court in that case Bronson, Oh. J., said: “ The mere levy neither gives anything to the creditor, nor takes anything from the debtor. It does not divest a title; it only creates a.lien on the property.”

In Tiffany v. St. John (656 N. Y., 319) it is said: “After the action is over, and judgment obtained and execution levied, the case becomes clearly assimilated to that of an ordinary lien, and if tender is made and not accepted the lien will be extinguished.”

In Green v. Homestead Insurance Company (82 N. Y., 517) the policy, which was on real and personal property, contained a condition that the company should not be liable for any loss if, without written consent, the interest of the insured in the property was changed in any manner, whether by the act of the insured or by operation of law; and it was held that the filing of a mechanic’s lien did not effect any change of interest in the property insured. -

Under the authorities in this State we think it must be held that, if valid, the levy upon the goods in question, at most, merely created a lien tliereon which gave the sheriff the right to retain the possession until sold, or until the levy was discharged by payment or otherwise, and that neither the sheriff nor the creditor thereby acquired any title or interest in the property within the true intent and meaning of the provisions of the policy under consideration.

The sheriff, however, became entitled to the possession of the goods levied upon. Whether he had taken actual possession under his levy when the fire occurred is not entirely free from doubt. The court held that if the possession was in the sheriff, still the change did not render the policy invalid, unless it increased the hazard, and that question was submitted to the jury, and it found for the plaintiff. The correctness of this disposition of the question involves the consideration of that condition in the policy which provides that it shall be void if any change of title, interest or possession take place, except change of occupants, without increase of hazard. The single question presented is, whether the words change of occupants ” relates exclusively to real estate, or to personal property as well. The appellant contends that they relate only to real estate. In determining this question it may be well to remember that the subject of insurance in this case was personal property only, and hence, if the construction contended for by the appellant is to obtain, the words except change of occupants without increase of hazard ” are superfluous and meaningless. In construing contracts, as in construing statutes, effect must, if possible, be given to all the language employed. Applying that rule in this case, it becomes obvious that the words of the exception related to the property in question.

Moreover, the contention that the words change of occupants ” can relate only to real estate, and that the term applied to personal property would be absurd, does not seem to be sustained when we consider the ordinary meaning of the word “ occupant.” The word occupant,” as defined by Webster, is: One who occupies or takes possession; one who has the actual use or possession, or is in possession of the thing.” By Anderson: One who has the actual use or possession of a thing.” By Abbott: “ One who has possession or controls things actual; ” he then adds : “ In the vernacular these words are used with a shade of meaning of being within the thing spoken of; one is said to occupy a house or a tract of land, but not often to occupy ordinary chattels. In law such a distinction is less noticed; occupy may be used like ‘possess ’ in respect to chattels; especially in the expression 1 title by occupancy.’ ” By Bouvier: “ One who has the actual use or possession of a thing.” Thus we see that the meaning ascribed to the word “ occupant ” by lexicographers includes the possession of personal as well as real property. (See, also, Pierson v. Post, 3 Caines, 115.)

In construing this, as in construing any other contract, the language employed must be taken in its ordinary and popular sense, unless it appears to have been used in a technical sense, or custom or usage has impressed a different meaning upon it. Applying that rule to the questions before us, it becomes quite manifest that the exception in the policy, which permitted a change of occupants where there was no increase of hazard, applied as well to personal as real property, as it was in no way limited to the latter; and that the court, therefore, properly held that the change of possession did not render the policy void unless the hazard was thereby increased. The jury having found for the plaintiff upon that question, he was entitled to the judgment awarded.

As there is no question of waiver involved on this appeal, no examination of the question is necessary, although it was discussed by the appellant. The trial judge, in considering whether the appellant’s motion for a nonsuit should be granted, referred to, and somewhat discussed the question of waiver,, but that question was in no way submitted to the jury or referred to in the charge of the court. That the court properly denied the appellant’s motion we have already in effect held. The ruling having been correct, any reasons for the decision that may have been stated by the court would not render it erroneous. As there are no other questions that need be considered, we think the judgment should be affirmed.

Merwin, J., concurred.

Judgment and order affirmed, with costs.