author: Johnson, J.

text:
    Butler and Vosburgh vs. Miller.
    It seems, that the question of fraud in a personal mortgage should be submitted to the jury, although no change of possession accompanies the mortgage; and the verdict of the jury in favor of the bonafides of the transaction will be as conclusive as upon any other question of fact.
    A judgment confessed by the mortgagor to the mortgagee for the same debt secured by a personal mortgage, does not merge or extinguish the mortgage, where by agreement the judgment is taken'as collateral merely.
    And even where there is no agreement that the judgment shall be held as collateral qtiere, whether a judgment for the debt can work an extinguishment of the mortgage. The case of Butler and Vosburgh v. Miller, (1 Denio, 407,) referred to and questioned in this particular.
    But where execution upon a judgment confessed for the mortgage debt was issued, and levied upon the chattels mortgaged, which were advertised for sale thereunder, and after the same property was sold upon another execution against the mortgagor, the mortgagees’moved' the supreme court for an order directing the sheriff to apply the proceeds of the sale upon their execution; held, in an action of trover by the mortgagees against the sheriff who made the sale, that these acts were repugnant to any claim under the mortgage, and precluded the plaintiffs from so claiming the property.
    It seems, that a personal mortgage transfers to the mortgagee the whole legal title to the thing mortgaged, subject only to be defeated by the performance of the condition.
    This was an action of trover brought in the supreme court oy Butler and Vosburgh against Miller, for a number of horses, cattle and hogs, and a quantity of farming utensils, and other property. The cause was first tried before Cushman, late circuit judge, at the Columbia circuit, in September, 1843, when a verdict was had for the plaintiffs, which was set aside by the supreme court and a new trial ordered. (See 1 Denio, 407.) A second trial was had before Parker, circuit judge, in March, 1846, and on that trial the case was as follows:
    The plaintiffs gave in evidence a chattel mortgage upon the property in question, executed to them by one Abraham B. Vanderpoel, dated April 19, 1842, which had been duly filed in the proper town clerk’s office. The instrument recited that Vanderpoel was indebted to the plaintiffs in the sum of $498,72, being the amount of three promissory notes made by Vanderpoel, and held by the plaintiffs, and the mortgage was to become void if Vanderpoel should pay the debt by the first day of October then next. Evidence was given tending to show a just consideration for the notes. At the time the mortgage was given the property was on the farm of the mortgagor, and was used by one Mosher, who worked the farm on shares, under an agreement by which Vanderpoel was to furnish teams, stock and utensils. After the mortgage was given the property remained on the farm, and was used as before. On the 15th day of July, 1842, the defendant, as sheriff of the county of Columbia, sold the property in question by virtue of an execulion against Yanderpoel, in favor of the Lafayette Bank, which was delivered to the sheriff on the 5th of May, 1842. The evidence tended to show that the plaintiffs asserted their claim under the mortgage at the sale, and forbid the sale.
    It also appeared that on the 7th of May, 1842, the plaintiffs took from Yanderpoel a bond and warrant of attorney for the amount of the note's secured by the mortgage, upon which judgment was entered in the supreme court on the same day, and execution thereon was, by Yanderpoel’s consent, issued immediately to one of the deputies of the sheriff aforesaid. It was also proved, after objection duly made and exception by the defendant’s counsel, that it was agreed between the plaintiffs and Yanderpoel that the judgment should be taken as collateral to the mortgage. The plaintiffs’ execution, soon after it was issued, was levied upon the property in question, and the prop erf.y was advertised for sale both under that execution and the one above mentioned in favor of the Lafayette Bank.
    It also appeared 'that after the sheriff’s sale above mentioned, the plaintiffs made a motion in the supreme court for an order requiring the defendant, as such sheriff, to apply the proceeds of the sale on the judgment and execution in their favor. This motion was based upon an allegation that the execution of the Lafayette Bank, when first 'delivered to the sheriff, was directed to the sheriff of the county of Hudson, (there being in fact no such county,) and that the error was corrected and the execution redelivered to the sheriff after the execution of the plaintiffs was issued. The motion -was denied with costs.
    The defendant’s counsel requested the circuit judge to decide and charge the jury, 1. That the mortgage -under which the plaintiffs claimed was fraudulent and void as against the judgment and execution of the Lafayette Bank. 2. That the judgment taken by the plaintiffs on the 7th of May, 1842, for the same notes secured by the mortgage, merged the notes and extinguished the lien of the mortgage. 3. That the issuing of execution upon that judgment, the levy upon the mortgaged property, and the motion to the supreme court to have the proceeds of the sheriff’s sale applied upon that execution, were severally acts inconsistent with any claim under the mortgage, and destroyed all right to assert any such claim. The circuit judge ruled, that the question of fraud was one of fact for the jury to decide. That the judgment was not a merger or ex-tinguishment of the mortgage, if it was taken as collateral merely; if not so taken, then that it was a merger. Upon the 3d proposition he refused to charge as requested. The defendant excepted, and the jury gave their verdict for the plaintiffs. The defendant moved in the supreme court for a new trial on bill of exceptions, which was granted by that court. The plaintiffs appealed to this court under the judiciary act of December, 1847.

      K. Miller, for the defendant.

      J. H. Reynolds, for the plaintiffs.
   Johnson, J.

The question of the bonafides of the mortgage was properly submitted to the jury, and their verdict in favor of the honesty and fairness of the transaction is conclusive according to all the cases since Smith v. Acker, (23 Wend. 653.)

The circuit judge was requested to charge the jury that the subsequent judgment on the notes operated as a merger of the notes and consequently avoided the .mortgage. The judge, howéver, charged that the judgment did operate as a merger of the notes and mortgage unless it was satisfactorily shorvn that the judgment was taken as collateral to the mortgage, in which case it was not a merger.

The charge upon this point.Avas in strict accordance with the rule laid down by the supreme court, (1 Denio, 407,) Avlien this cause Avas before it on a former trial, and must be regarded as correct unless that court Avas then in error as to the true rule upon the subject.

It may perhaps well be doubted Avhether the judgment was a security of a higher nature than the personal mortgage; and even if it were, Avhether it Avould operate to extinguish the mortgage and divest the mortgagees of the title they had acquired under it. It will scarcely be contended that in case the notes in question had been secured by a mortgage upon real estate, a judgment upon them would have extinguished such •mortgage. And yet a mortgage upon real estate is a mere security and incumbrance upon the land and gives the mortg .tiee no title or estate therein whatever. Whereas a personal mortgage is more than a mere security. It is a sale of the thing mortgaged and operates as a transfer of the whole legal title to the mortgagee, subject only to be defeated by the full performance of the condition. And if it be conceded that a judgment upon the original indebtedness would not extinguish a collateral security for its payment upon real estate, I do not see how it could divest a title to personal property acquired by purchase. A vested legal title, whether in real or personal property, is the highest of all securities—certainly higher than the mere lien of a judgment upon land, or the right of a plaintiff to personal property acquired by levy under an execution. • •

Although it is clear that the notes were merged in the judgment by operation of law, it does not, as I think, certainly follow that all the collateral securities would be extinguished. The debt is not yet satisfied. The notes may have been cancelled, but the debt was not, and until that is done it seems to me that all mere collateral securities, whether upon real'or personal property, should be allowed to stand; "especially titles to property acquired under instruments- where the parties stand in the relation of vendor and purchaser without fraud. The rule that security of a higher nature extinguishes inferior securities will be found, I apprehend, -only to apply to the state or condition of the debt itself, and means no more than this—that when an account is settled by a note, a note changed to a bond, or a judgment taken upon either, the debt as to its original or inferior condition is extinguished or swallowed up in the higher .security; and that all the meifiorandums or securities by which such inferior condition was evidenced lose their vitality. It has never been applied, and I think never should be, to the extinguishment of distinct collateral securities, whether superior or inferior in degree. These are to be cancelled by satisfaction of the debt or voluntary surrender alone. This most obvious and rational distinction seems to have been overlooked by the supreme court in the opinion to which I have referred.

It is unnecessary, however, to decide the question here discussed, as it was put to the jury substantially to find whether it was agreed or intended by the parties in entering up the judgment to cancel the mortgage; and I admit that if such had been the agreement and intention, there was sufficient consideration to support it, and that the mortgage must have yielded to the superior force of the agreement, whether express or implied.

. -.The jury have determined by their verdict that the parties to the mortgage did not intend to cancel it, and that notwithstanding the judgment, it remained a valid subsisting security.

Thus far then it seems to be established by the verdict, that at least up to the time of the execution being placed in the hands of the sheriff by the plaintiffs, the mortgage was a valid instrument in their hands, and vested in them the legal title to all the property it purported to convey, subject to be defeated only by payment and satisfaction, or voluntary waiver or surrender.

It remains to be seen whether the plaintiffs have in anyway divested themselves of their title to the property thus acquired, or been guilty of any acts which would authorize the court to estop them from asserting their rights under the mortgage.

If this was a mere question as to whether a party might pursue one of several remedies or collateral securities to any extent short of actual satisfaction without prejudice to the others, no one I apprehend could entertain any doubt. But that is not the question. The precise question here is whether the plaintiffs in pursuing their remedy under the judgment have not so treated and dealt with the property in question as to preclude themselves from setting u'p their title or claim to it under the mortgage. At the time the plaintiffs’ execution was issued the sheriff as against them had no right to seize the properly and sell it as Tanderpoel’s without first paying their mortgage, and could acquire no such right except through their assent express or implied. And when they voluntarily placed their execution in the hands of Reynolds, the deputy, with directions to him to levy upon this property and sell it, they certainly to that extent unequivocally consented to its being treated as Tanderpoel’s. And had they afterwards stood by and suffered it to be sold without objection, they would have been estopped forever from asserting their title or claim under the mortgage. (Cowen & Hill’s Notes, 200, 201, 203.)

It seems to me, however, that at any time before sale or before any third person was placed by means of such assent in a situation to be thereby prejudiced, it was clearly revocable. (Id. and cases there cited; Wallis v. Truesdell, 6 Pick. Rep. 455; Uffred v. Lucas, 2 Hawks, 214.) It can make no difference, that I can perceive, that the party to whom such consent or permission is given is a public officer whose custody of the goods is the custody of the law, and who is to make a title to third persons by sale under legal process. The right to make or convey a title at all, where the defendant in the execution is not the true owner of the property, must rest upon the assent either express or implied of the person who has the real title, and if that assent may be withdrawn by him and his own title asserted' at any time before the right of selling it as the property of the defendant in the execution has been exercised by the officer, a sale afterwards would be as unauthorized and tortious as though no such assent had ever been given. The rights of the plaintiffs in the execution first in the hands of the sheriff had not as yet been prejudiced or in any manner affected. They were as perfect after the plaintiffs in this suit had forbid the sale, unless their mortgage was first satisfied, as they were before the latter execution was placed in the sheriff’s hands. Nor could the defendant or those whose interests he represents complain that they had been misled or suffered to act in ignorance of the plaintiffs’ claims. They had notice in season to put .them upon inquiry, and proceeded afterwards at their peril.

If the grounds I have assumed are correct, that the authority to the defendant to, dispose of the property as that of Vanderpoel, given by the plaintiffs, when they placed their execution in his hands, was revocable, and that they did revoke it before the sale and in time to preserve their rights under the mortgage,.it follows that they ought to recover unless it can be made to appear that their application for the money in the hands of'the sheriff, subsequent to the sale, was an effectual waiver or relinquishment of the claim asserted by them before the- commencement of the sale, and a ratification of the sale, notwithstanding the dissent at the time.

But how stands the case here ? Having placed themselves in a situation to vindicate their rights as owners under the mortgage, have not the plaintiffs by their subsequent acts entirely abandoned the ground assumed at the opening of the sale, and returned to the one they elected to occupy when they directed the sheriff to levy upon and sell the.property as Vanderpoel’s by virtue of their execution? The bill of exceptions shows that one of the plaintiffs bid off a portion of the property at the sale, and in pursuance of some prior arrangement by which a credit was tobe given to enable the parties to get a decision of the supreme court upon their conflicting claims for the proceeds of the sale, gave his note to the sheriff at ninety days for the amount of his bid. And after the sale, according to their affidavit, and while the money was in the hands of the sheriff’s deputy, they insisted that he should first satisfy their execution still in his hands by applying the money thereon. This the sheriff refused to do. And upon this refusal the plaintiffs, on an affidavit and notice to the plaintiff’s attorney in the other execution, moved the supreme court to have the avails of the sale applied to the satisfaction of their execution in the first instance. The affidavit upon which they founded their motion contains no intimation that the sale was not with their assent and for their benefit. Indeed the application could proceed upon no other conceivable idea than that of their execution continuing in the hands of the officer as a valid process binding upon the property held by him and entitled to satisfaction from the proceeds of the sale It implies the full and unequivocal concession that Vanderpoel was the owner of the property, and that the moneys growing out of the sale belonged to his creditors having executions in the sheriff’s hands at the time of the sale. It can make no difference that I can perceive in principle that their application was denied and their debt remains unsatisfied.

Having abandoned the grounds they assumed at the opening of the sale, and elected to treat the sale as a legal and valid transfer of the property to the purchasers, and asserted their rights as creditors of Vanderpoel to the proceeds of the sale by virtue of their execution, and afterwards compelled the other claimants to come into court and litigate their claim to the same ; they must rest content although judgment passed against them. They are adjudged to stand in the same situation as though they had interposed no objection from the beginning, but had acquiesced throughout in the proceedings of the sheriff. It was said upon the argument that the supreme court in deciding the question upon the motion, held that the plaintiffs were estopped from claiming the moneys arising from the sale, and sent them back to the rights asserted by them under their mortgage. But no such question is presented by.the bill of exceptions, or was before the circuit judge, and cannot be raised and passed upon in this court.

I am of opinion, therefore, that the circuit judge erred in his refusal to charge the jury as requested by the defendant in regard to the plaintiffs’ proceedings to obtain the money after the sale, and that a new trial should be granted.

New trial granted..


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    Ruckman vs. Cowell.
    Where the form of the pleadings is such that a party has had no opportunity of setting up fraud in avoidance of a bankrupt’s discharge, he may give the fraud in evidence on the trial without having pleaded it.
    Accordingly, whe're a party who was sued in trespass for taking goods,.pleaded not guilty and gave notice of justification under a judgment and execution against the plaintiff, and on the trial the plaintiff proved his discharge as a bankrupt obtained after the judgment was rendered; held, that the defendant might give fraud in evidence so as to avoid the discharge.
    In pleading a bankrupt’s discharge, the facts on which jurisdiction depends must be averred; but when the discharge is offered in evidence, jurisdiction will be presumed until the contrary appears. Per Bronson J.
    The circuit and district courts of the "United Statesji though of limited jurisdiction, are not inferior courts in the technical sense 'of the term. Per Bronson, J.
    A valid discharge in bankruptcy extinguishes a judgment, so that the creditor who seizes the bankrupt’s goods by virtue of the judgment and execution thereon, may be charged as a trespasser, even if he have no knowledge of the discharge. Per Bronson, J.
    But otherwise as to the officer making the levy. He is protected by the process regular on its face.
    Error from the supreme court, where Cowell sued Ruck-man in trespass de bonis, &c. The cause was tried at the Albany circuit in October, 1844, before Parker, circuit judge, and a verdict had for the plaintiff. The defendant moved in the supreme court for a new trial on a bill of exceptions, which motion was denied by that court and judgment rendered-for the plaintiff. The facts are sufficiently stated in the opinion of Bronson, J.

      8. 8tevens, for the plaintiff in error.

      H. C?. Wheaton, for the defendant in error.
   Bronson, J.

The case may be stated in few words. Cowell brought" an action of trespass de bonis asportatis against Ruck-man in the supreme court; the defendant pleaded not guilty, and gave notice of justification under a judgment and execu tion in his favor, against the plaintiff. On the trial, the plaintiff proved the taking of the goods by the sheriff of New-York upon an execution in favor of the defendant against the plaintiff ; and there rested his cause. The defendant then gave in evidence th e, fieri facias under which the sheriff'acted, and the judgment on which the execution issued. The judgment was recovered on the 8lh day of February, 1841, upon two promissory notes made by the plaintiff in 1840. The plaintiff then offered in evidence his discharge as a voluntary bankrupt under the act of 1841, granted by the district court of the United States for the northern district of New-Yorlc on the 25th day of July, 1842. The defendant objected to the admission of this evidence on several grounds: 1. The evidence was immaterial, and if admitted, would* not subject the defendant to an action of trespass for taking the property ; 2. The plaintiff must show that the district court acquired jurisdiction to grant the discharge ; and 3. The act of congress under which the discharge was granted was unconstitutional and void. The court overruled all of these objections, and the discharge was given in evidence. It purported to have been granted on the petition of the bankrupt. The defendant then offered evidence to prove that the plaintiff had been guilty of such acts of fraud as would, by the bankrupt act, avoid the discharge. This evidence was rejected by the court, on the ground that the defendant had not given the plaintiff notice of the frauds which he proposed to prove. The defendant excepted to this, and the other-decisions of the court; and verdict and judgment having passed for the plaintiff, the defendant now brings error.

1. If the discharge was valid, it extinguished the judgment; and the defendant was a trespasser for afterwards acting under it. As the execution was regular upon its face, and issued from a court of competent jurisdiction, it was a protection to the officer who made the levy; but it could not justify the party at whose instance it was issued. He acted at his peril. It is true that he may have been ignorant of the discharge; but that was his misfortune. Having seized the goods without authority, it was a trespass for which he must answer, however innocent he may have been of any intention to dó an illegal act.

2. In pleading a bankrupt’s discharge it has been held neces sary to show that the court had jurisdiction to grant it, by averring the existence of the facts on which jurisdiction depended. (Sackett v. Andross, 5 Hill, 327 ; Stephens v. Ely, 6 id. 607. And see Morgan v. Dyer, 10 John. 161; Jenks v. Stebbins, 11 id. 224.) But when the discharge is given in evidence, jurisdiction to grant it should be presumed until the contrary appears. It would be otherwise if the discharge were granted by a commissioner, or a court of strictly inferior jurisdiction.' But the district and circuit courts of the U. States, though of limited jurisdiction, are not inferior courts in the technical sense of the term. If jurisdiction do not appear upon the proceedings, their judgments and decrees will be reversed on error or appeal. But they are not nullities, which may be disregarded in a collateral proceeding. (McCormick v. Sullivant, 10 Wheat. 192.) In this respect the district and circuit courts of the United States stand on the same footing as courts of general jurisdiction ; and the authority of such courts is always to be presumed, until the contrary is shown. It is true that the bankrupt act does not, in terms, give any effect to the discharge except when duly granted.” (§ 4.) But the law presumes that it was duly granted, until the contrary appears.

3. The rejection of the evidence to impeach the discharge for for fraud was, I think, clearly wrong. True, the 4th section of the bankrupt act says, in effect, that the discharge may be impeached for fraud on prior reasonable notice specifying in writing such fraud. But that means no more than that notice shall be given where the case is such that the fraud may be pleaded; and not that the creditor must plead the fraud at his peril where, as in this case, he had no opportunity to do it. If the debtor, on being sued, pleads his discharge, the creditor must reply the fraud, or he will not be allowed to prove it on the trial: But that rule cannot apply where, as in this case, the discharge is given in evidence without having been pleaded, and consequently where the creditor could not plead the fraud If there had been negative words in the statute, as that the discharge should only be impeached when the fraud was plead ed, they would hardly be construed as applying to a case where the creditor had no opportunity to plead the fraud. But there are no negative words in the statute.

The same question may arise about giving the discharge in evidence in favor of the debtor. The 4th section provides, that the discharge shall and may be pleaded as a full and complete bar to all suits. If the bankrupt, when sued, omits to plead the discharge, he cannot give it in evidence. But where the form of the pleadings is such as to afford him no opportunty of pleading the discharge, there can be no doubt that it may be given in evidence on the trial without notice. It was so given in evidence in this case, though there was about as much ground for rejecting it, as there was for rejecting the answering evidence which was offered by the creditor. There was, I think, no ground for rejecting either of them.

There are many cases in the law where a party must plead or give notice of the particular matter which he intends to prove on the trial, or he will be precluded from proving it; but so far as I can recollect, the rule never applies where the party had no opportunity, in the regular course of pleading, of setting the matter up. I see no good reason why an exception should be made in this case.

I have considered the question as though the defendant knew of the discharge-at the time of pleading. But there is no evidence of that fact, nor any sufficient ground for presuming it. It may well be that he never heard of-the discharge until it was offered in evidence on the trial. The bankrupt law did not require personal service of notice upon creditors, and it often happened that they did not hear of- the application until after the debtor was discharged. I well recollect that in several motions which were before the supreme court while I sat in it, the creditor made affidavit that he never heard of the proceedings in bankruptcy until the discharge was set up in answer to an action. It will be presumed, for the purpose of upholding the discharge, that such notice was given as the statute requires. (Norriss v. Goss, 2 Spear’s Law Rep. 80.) But that is not actual notice; nor is the presumption to be indulged for any other purpose than that of giving effect to the discharge. There are many cases where the publication of a notice in a newspaper is made to supply the place of process to bring the party into court; and such notice will be sufficient to uphold the proceedings. But it proves nothing against the party in relation to any other matter.

My opinion that the voluntary branch of the bankrupt law, un der which branch this discharge was obtained, is unconstitutional, has already been declared; (Sackett v. Andross, 5 Hill, 327 ;) and time and'reflection have only served to confirm me in that conclusion. But as this judgment must be reversed on another ground, it is not necessary that the court should pass upon that question on the present occasion.

I am of opinion that the judgment should be reversed, and a venire de novo be awarded.

Ordered accordingly.


author: Jewett, C. J.

text:
    Bingham, administrator, &c. appellant, vs. Weiderwax and Sutherland, respondents.

    The covenant of seisin, if the grantor has no title, is broken as soon as the deed is executed, and the grantee’s right of action upon such covenant becomes immediately perfect.
    Nor is it any defence, either at law or in equity, to such an action, that the premises have been sold and the grantee dispossessed under a mortgage which tL * grantee assumed to pay, and subject to which he took the conveyance.
    In the action upon the covenant of seisin, for the purpose of ascertaining the measure of damages, the true consideration, and the fact that only part of it has been paid, may be shown by parol, although the deed expresses a different consideration, and acknowledges that the whole of it has been paid; and there is therefore no occasion, in such a case, to resort to a court of equity for relief.
    It seems, that on .the dissolution of a corporation, the title to real estate held by it reverts back to its original grantor and his heirs, unless there is some provision in the charter, or some other statutory provision to avert that consequence.

      Appeal from chancery. Henry Weidenvax and James Sutherland filed their bill in chancery, before the vice chancellor of the third circuit, against Anson Bingham, administrator of the estate of Jacob S. Van Burén, deceased, stating the case in substance as follows:
    On the 15th day of January, 1838, the said Jacob S. Van Burén applied to the President, Directors and Company of the Hillsdale and Chatham Turnpike Road, a body politic and corporate, to purchase certain real estate of which that corporation was seized, situated in the town of Schodack, county of Rensselaer. An agreement was thereupon made between the directors of the corporation and Van Burén for the sale of such real estate for the price of $3850, and articles of agreement, dated on that day, were drawn up and executed between the complainant Weidenvax, as secretary of the corporation, of the first part, and Van Burén of the second, part, whereby it was orovided that the premises should be conveyed to Van Burén on the first day of April then next; and the said Van Burén on his part agreed, in the same articles, to pay for the land the sum of $3800, as followshe was to assume and pay two mortgages which encumbered the premises, one of $2000 and the other of $1000, and the balance of the purchase money, being $850, he was to' pay on the 5th day of May then next.
    On the said first day of April, 1838, the complainants and Story Gott, since deceased, were directors of the corporation, and together constituted a majority of such directors; the said Story Gott being also president, and the complainant Weiderwax being secretary. And on that day the complainants and said Gott, with the advice and consent of the other two directors. executed under their hands and seals to said Van Burén a conveyance in fee of the said premises, purporting to be for the consideration of $3850,' and subject to the two mortgages mentioned in the aforesaid articles of agreement, covenanting in and by such deed that they, the said complainants and Story Gott, “ at the time of the execution of the deed, were the true and lawful owners of the premises in right of the President, Directors and Company of the Hillsdale and Chatham Turn

      pike Road, and were seized of a perfect estate therein in fee simple, and had lawful right and aiithority to sell and convey the same in manner aforesaid.” The bill alleged that $3000, being the amount of the two mortgages on the premises, was deducted from the purchase money, and the balance, $850, was paid by Yan Burén to the corporation.
    The bill further alleged, that at the time of the conveyance the title of the premises was in the corporation, that all parties to the conveyance so understood it, and none of them supposed the title to be in the complainants and Gott, but being ignorant of the law they supposed that such conveyance would vest the title in the grantee; that immediately after the execution thereof, said Yan Burén went into possession of the premises, and occupied the same personally, or by his tenants, until his death in 1841, and that after his death, the defendant, as administrator upon, his estate, received the rents and profits^ until July 20, 1843.
    ' The bill also alleged that neither Yan Burén nor the defendant as such administrator, ever paid the two mortgages on the premises, that the owner of the mortgage of $2000 in March, 1842, commenced proceedings to foreclose the same in chancery, and obtained the usual decree of foreclosure and sale in May, 1843, under which the premises were sold on the 20th of July, 1843, and purchased for the sum of $2620 by one Griffith, who took possession under his purchase. In October, 1844, the defendant, as administrator of the estate of Yan Burén, corn-men :ed an action at law against the complainants, (Story Gott having previously died-) upon the covenant of.seisin contained in the aforesaid conveyance, alleging in his declaration, as a breach, that the complainants and Gott were not seized of an estate in fee in the premises, and had not power and authority to convey the same.
    The bill insisted that neither Yan Burén, in his lifetime, nor .he defendant as administrator, since bis death, had sustained any damage or injury by any act or omission of the complainants, that the premises were sold under the said decree of foreclosure, by reason of the mere neglect of said Yan Burén and

      of the defendant as administrator to pay the mortgage ; alsa that the deed was by mistake erroneously drawn in this respect, to wit, that it expressed a consideration of $3850, and yet conveyed the premises subject to the said two mortgages of $3000, which would make the consideration appear to be $6850, whereas the true consideration was as before stated only $3850. The facts stated were claimed by the bill to constitute an equitable defence to the action at law upon the covenant of seisin, and the prayer was for a perpetual injunction against that or any other suit upon such covenant, and for general relief. The defendant demurred to the bill for want of equity, and upon other grounds more specially stated.
    The vice chancellor overruled the -demurrer, and his decision was affirmed by the chancellor on appeal. The defendant appealed to this court.

      H. Z. Hayner, for the appellant.

      J. H. Reynolds, for the respondents.
   Jewett, C. J.

It is assumed by the chancellor that the land was not lost to Tan Burén in consequence of a defect of title; but that if the mortgage was properly foreclosed, the title had been lost by his neglect to pay it. I think there is an obvious mistake in that conclusion. The bill concedes that the title to the lands was not conveyed to Tan Burén, although he as well as his grantors supposed it was, by the deed executed to him. The complainants and the administrator of Tan Burén have since discovered that Tan Buren’s grantors were never seized of any estate in the lands; that the turnpike corporation, at the time of exécuting the deed, was seized of these lands, and so continued, until its dissolution in 1840. How then can it be said that Tan Burén lost the land or the title thereto, (which he never had,) by neglecting to pay the mortgage'? If he had paid it, it would not have invested him or his grantors with the title. Neither lost the land or title to it, by the foreclosure and sale. Payment of the mortgage by Tan Burén in :iis lifetime, or by his administrator after his death, could have had no other effect than to increase the amount of damages .vhich he or his administrator would be entitled to recover of his grantors for the breach of their covenant of seisin contained in their deed to him. Van Buren’s right of action for the breach of that covenant was perfect the instant the deed was executed. (Hamilton v. Willson, 4 John. 72; McCarty v. Leggett, 3 Hill, 134.) It did not arise or depend in any respect upon the foreclosure of the mortgage and sale under it. Nor did the foreclosure and sale in the least affect the complainants’ rights or liabilities.

If Van Burén had paid the mortgages, and then he or his administrator, after his death, had brought an action for the breach of the covenant of seisin, it would not have been a good ground in equity for relief against their covenant, that he could have compelled the corporation before its dissolution to convey the title tó him. He would have the right to rely on his covenant and take his remedy by action upon it.

Van Buren’s grantors agreed with him that they were seized of the land, and it was their business to see that their covenant in that respect was kept, when they executed the deed. Equity may compel parties to execute their agreements, but has no power to make agreements for them, or to substitute one for another. And besides, it appears from the bill that the corporation even did not lose the land or its title by the foreclosure and sale under the mortgage. It had lost its title nearly or quite three years before, in 1840, by its dissolution. At that time, and for that cause, the title reverted back to its original grantor or liis heirs, there being no provision in its charter or in any other statute to avert that consequence upon its dissolution. (Angel & Ames on Corp. 128, 129 ; 2 Kents Com. 305.)

At all events the bill shows the dissolution of the corporation at the time mentioned, without showing that the title to their lands was saved in such manner as that Van Burén, or his representatives, could by any means have acquired it under the agreement and deed, even if he had paid the mortgages subsequently and before foreclosure ; and it is not set up that he had agreed to pay, or that the holders of the mortgages were bound to receive, or would have received payment of the mortgages, or either of them, prior to the time of the dissolution of the corporation, or prior to the time of the death of Van Burén; or that he at any time knew or had notice that he could compel the corporation, or any other person, to convey to him the title to said land; or even that he knew or was informed that his grantors were not seized when they executed the deed. Therefore it seems to me that there is no. ground upon which to sustain this bill, founded upon the neglect of Van Burén to pay the mortgages, or either ofthem.

But the chancellor held that even if the bill could not be sustained' to the whole extent claimed, the demurrer was properly overruled on the ground that the complainants were entitled to relief so far as to restrict the defendant’s, claim upon the covenant to the amount of the purchase money actually paid by Tan Burén, with interest thereon. I take it that the principle is settled, that if the complainants can avail themselves of this branch of their defence at law, and that objection is raised by the demurrer to the bill they should be left to make it in the suit at law; and the decree overruling the demurrer cannot be sustained on that ground. (Colton v. Ross, 2 Paige, 396, 400.) And I think it is well settled, that for the purpose of ascertaining the damages to which a plaintiff may be entitled in an action at law for the breach of the covenant of seisin in a deed, the true consideration, and that all or any part remains unpaid, may be shown, notwithstanding a different consideration is expressed in the’ deed-, and although it contains an acknowledgment on the part of the grantors that it has been paid at the time of or before’ the execution of the deed. (McCrea v. Purmont, 16 Wend. 460; Shephard v. Little, 14 John. 210; Morse v Shattuck, 4 N. Hamp. R. 229; Greenvault v. Davis, 4 Hill, 647 ; Beldon v. Seymour, 8 Conn. R. 304; Cowen & Hill’s Notes, 1441, 1442.)

My conclusion therefore is that the decisions of the court below are erroneous and should be reversed, and the bill dismissed with costs.

Ordered accordingly.


text:
    Van Leuven vs. Lyke and Dumond.
    The owner of a domestic animal is not in general liable for an injury committed by j such animal, unless it be alleged and shown that the defendant had notice of its vicious propensity.
    But if the animal is unlawfully in the close of another and commits the mischief there, the owner is liable without alleging or proving a scienter. Per Jewett, C. J.
    And in such cases the declaration should be for breaking and entering the close, and the particular mischief, e. g. the killing of another domestic animal, should be alleged in aggravation of the trespass.
    The declaration in a justice’s court alleged that the defendants’ sow and pigs mangled and tore a cow and calf of the plaintiff So that they died. ThS evidence tended to show that the injury was committed as alleged, and that it' was done while the sow and pigs were trespassing in the plaintiff’s close. Hdd that the plaintiff could not recover for the reason that there was no allegation or proof of a scienter, ‘ and no allegation of a breach of the plaintiff’s close.
    Van Leuven sued Lyke and Dumond in a justice’s court and recovered judgment, which was affirmed by the common pleas on certiorari, and reversed by the supreme court on error. (See 4 Denio, 127.) The plaintiff brought error to this court. The case is sufficiently stated in the opinion of the court, as delivered by Jewett, ú. J.

      M. iSchoonmalcer, for the plaintiff in error.

      T. R. Westbrook, for the defendants in error.
   Jewett, C. J.

It is alleged in the plaintiff’s declaration “ that on the 27th day of November, 1844, at &c. the defendants were the owners of a certain sow and pigs, which sow and pigs, to wit, on the day and year aforesaid, to wit, at the place aforesaid, bit, damaged and mutilated and mangled a certain cow and calf of the plaintiff, while the said cow was in the act of calving, so that said cow and calf both died, to the plaintiff’s damage $50.” To which the defendants pleaded, the general issue. There was evidence given on the trial, sufficient to warrant the jury in finding that the plaintiff’s cow and calf were destroyed by the defendants’ sow and pigs in the manner set forth in the declaration, upon the land of the plaintiff, where the sow and pigs were at the time of committing the said injury. But there is no allegation in the declaration, or evidence given on the trial, that swine possess natural propensities which lead them, instinctively, to attack or destroy animals in the condition of the plaintiff’s cow and calf. Nor is there any allegation or evidence that the defendants previously knew or had notice that their swine were accustomed to do such or similar mischief, or that the swine broke and entered the' plaintiff’s close and there committed the mischief complained of. ¿

It is a well settled principle that in all cases where an action of trespass or case is brought for mischief done to the person or personal property of another by animals mansueta natura, such as horses, oxen, cows, sheep, swine, and the like, the owner must be shown to have had notice of their viciousness before he can be charged, because such animals are not by nature fierce or dangerous, and such notice must be alleged in the declaration ; but as to animals fera natura, such as lions, tigers, and the like, the person who keeps them is liable for any damage they may do without notice ; on the ground that by nature such animals are fierce and dangerous. (9 Bac. Abr. tit. Trespass, I, 505, 6; Jenkins v..Turner, 1 Ld. Raym. 109; Mason v. Keeling, id. 606; S. C. 12 Mod. 332; Rex v. Huggins, 2 Ld. Raym. 1583; 1 Chit. Pl. ed. 1812, 69, 70; Vrooman v. Lawyer, 13 John. R. 339; Kinkley v. Emerson, 4 Cowen, 351.) But this rule does not apply where the mischief is done by such animals while committing a trespass upon the close of another.

The common law holds a man answerable not only for his own trespass, but also for that of his domestic animals; and as it is the natural and notorious propensity of many of such animals, such as horses, oxen, sheep, swine, and the like, to rove, the owner is bound at his peril to'confine them on his own land, and if they escape and commit a trespass on the lands of another unless through defect of fences which the latter ought to repair, the owner is liable to an action of trespass quare clausum fregit, though he had no notice in fact of such propensity. (3 Bl. Com. 211; 1 Chit. Pl. 70.) And where the owner of such animals does not confine them on his own land, and they escape and commit a trespass on the lands of another, without the fault of the latter, the law deems the owner himself a trespasser for having permitted his animals to break into the enclosure of the former under such circumstances,^ And in declaring against the defendant in an action for such trespass, it is competent for the plaintiff to allege the breaking .and entering his close by such animals of the defendant, and there committing particular mischief or injury to the person or property of the plaintiff, and, upon proof of the allegation, to recover as well for the damage for the unlawful entry as for the other injuries so alleged, by way of aggravation of the trespass, without alleging or proving that" the defendant had notice "that his animals had been accustomed to do such or similar mischief. The breaking and entering the close in such action is the substantive allega-' tion, and the rest is laid as matter of aggravation only.

This principle is recognized as sound by several adjudged cases. In the case of Beckwith v. Shordike and Hatch, (4 Burr. 2092,) the action was trespass for entering the plaintiff’s elose with guns and dogs and killing his deer. The evidence showed that the defendants entered with guns and dogs, into a close of the plaintiff adjoining to his paddock, and that their dog pulled down and killed one of the plaintiff’s deer. It was held to be sufficient evidence to prove the defendants trespassers, and they were held liable for the injury done by their dog, although it was not shown that they had any knowl edge or notice of the propensity of the dog to do such or similar injury.

In Angus v. Radin, (2 South. Rep. 815,) the action was trespass for the defendant’s oxen breaking into the enclosure of the jhaintiff and there goring his cow, so as to kill her; and upon the ground that the defendant had neglected to confine his oxen on his own land and that they were trespassing on the land of the plaintiff, he was held liable for the injury done, although it was not alleged or proved that he knew or had notice of the propensity of his oxen to commit such an injury. And so in Dolph v. Ferris, (7 Watts & Serg. 367,) where the action was trespass before a justice of the peace and there tried without any declaration having been filed ; therefore the couit held that the case must be considered as if the case had been tried on the most favorable declaration for the plaintiff, which the evidence would have warranted. The evidence was that the bull of the defendant, which was running at large, broke and entered into the enclosure of the plaintiff, where his horse was feeding on the grass growing therein, and gored him so that he died by reason thereof in a few days. The court held it to be clear from the evidence, that the defendant might have been declared against for having broken and entered the close of the plaintiff, and the grass and herbage of the plaintiff there lately growing with his bull eaten up, trod down and consumed, and plight.also have been charged in the same declaration with having killed or destroyed the plaintiff’s horse or colt with his bull.

But in the case under consideration, there is no allegation, charging the defendants’ swine with doing any act for which the law holds the defendants accountable to the plaintiff without alleging and proving a scienter.fj-Had the plaintiff stated in his declaration such ground of liability, or had chargecTlhat the swine broke and entered his close and there committed the mischief complained of, and sustained his declaration by evidence, I am of opinion that he would have been entitled to recover all the damages thus sustained; but as he has not stated in his declaration either ground of liability, the defendants ought not to be deemed to have waived the objection by not making it specifically before the justice. I think the judgment should be affirmed.

Judgment' affirmed.


text:
    Worrall vs. Parmelee.
    The declarations of a former owner of personal property are not admissible in evidence to prove a sale of such property to a party claiming under him.
    And where such evidence was duly objected to, and the party objecting afterwards called as a witness the person whose declarations had been given in evidence, and examined him in regard to the alleged sale; held, no waiver of the objection.
    An error in the court below, which on its face could do no possible injury, is no cause for reversing a judgment. But where the error is in the admission of illegal evidence which bears in the least degree on the result, it cannot be disregarded. Per Jewett, C. J.
    Accordingly, where illegal evidence tending to establish certain fact was received after objection duly made; held, that the error could pot be disregarded, although the party objecting afterwards introduced evidence.«which tgnded to establish the same fact. ••• h -

    On error from the supreme court. Richard W. Parmelee sued William H. Worrall, in July, 1846, before a justice of the peace, and declared in trespass for entering his close and cutting down and carrying away a field of rye. The defendant pleaded not guilty, and gave notice that he would show a license to enter from the grantor of the plaintiff, and that the rye was his property.
    On the trial the plaintiff proved that he was in possession of the premises at the time of the alleged' trespass, which was about July 1, 1846, and that he had been in possession since the 1st of May previous; also that the defendant entered and cut and carried away the rye after being forbidden so to do. The plaintiff then rested.
    The defendant proved that the rye was sown by one Brower, who had been a tenant of the premises under one Grid ley from whom the plaintiff received the possession, and that as such tenan Brower was entitled to the crop. The defendant then offered to prove certain declarations of Brower .to the effect that he had sold the rye to the defendant. This was objected to, but the justice overruled the objection, and the evidence was thereupon given.
    The plaintiff then called fhe said Brower as a witness, and proved by him that he sold the rye to the plaintiff after the first of May, 1846. The plaintiff also examined the witness in regard to the alleged sale to the defendant, and his evidence on that subject tended strongly to show that before the lsi of May he had sold the rye to the defendant: The justice rendered judgment for the defendant, which being removed into the common pleas by certiorari, was affirmed in that court. The plaintiff brought error into the supreme court where the judgment was reversed. The defendant brings error to this court.

      J H. Weeks, for the plaintiff in error.

      C. W. Swift, for the defendant in error.
   Jewett, C. J.

It may be inferred from the facts proved, that prior to April or May, 1846, Gridley was the owner of the land on which the trespass is alleged to have been committed by the defendant, and that while thus being the owner, Brower had occupied the premises as his tenant until some three months prior to May, and had sowed it with rye; to whom the crop belonged at the time Gridley sold arid'delivered possession of the premises in April or May to Parmelee. It does not seem, from the justice’s return, that Parmelee claimed to have become the owner of the rye as purchaser of the land on which it was then growing. But he, as well as Worrall, respectively claimed the crop as purchasers from Brower.. Parmelee showed that prior to and at the time of the alleged trespass he was in the actual possession of the premises, that the defendant entered upon the land, cut and carried away the rye, of the value of from $30 to $40; and then rested ; having clearly shown a prima facie right to recover for the injury sustained.

The defendant then attempted, in his defence, to show that he was the owner of the rye by purchase from Brower. To do this he proposed to give in evidence the declarations of Brower to that effect. The plaintiff objected to such evidence as incompetent ; but the justice overruled the objection and admitted the evidence. The defendant then proved by two witnesses that Brower on two different occasions in effect said that he had sold the rye to the defendant, and then rested his defence. The plaintiff introduced Brower as a witness, who testified that the bargain which he made with the defendant for the sale of the rye, was a conditional one, that is, he was to pay him a certain sum for it the first of May, which he failed to do, and had not at any time paid him; that after the first of May he sold the rye to the plaintiff, who paid him for it.

The decision of the justice upon- the objection taken to the admission of the evidence of Brower’s declarations, was clearly erroneous. Such evidence is nothing more than hearsay (Paige v. Cagwin, 7 Hill, 361; Beach v. Wise, 1 id. 612.)

' But it is insisted in behalf of the defendant, that the plaintiff waived his objection to such evidence, by introducing Brower as a witness in the cause; upon the principle that the case shows that there is enough, exclusive of the illegal evidence, to sustain the judgment of the justice. There are many cases which hold that an error in the court below, which on its face and by legal necessity, could do no injury, is not cause for a reversal of the judgment. But where the error is in the admission of illegal evidence which bears in the least degree on the question in issue, it cannot be disregarded. (The People v. Wiley, 3 Hill, 194, 214.) So also where the sole question on a bill of exceptions turned on the competency of a witness produced to testify to a fact fully proved by two other witnesses, it was held that the court could not reject the evidence of such •witness as unnecessary, on the ground that it was impossible to say that the jury disregarded it; and the witness being adjudged incompetent, the judgment in the court telow was reversed. (Marquand v. Webb, 16 John. 90.) And to the same effect is the case of Osgood v. The President and Directors of the Manhattan Co. (3 Cowen, 612.) The judgment of the supreme court should be affirmed.

Judgment affirmed.


author: Gardiner, J.

text:
    Hill and Sanford vs. Covell.
    A special verdict should state facts and not merely the evidence of facts, so as to refer to the court only the consideration of questions of law.
    To authorize a judgment for the plaintiff upon a special verdict in an action of trover, the verdict should either find a conversion of the property, or state such facts as to leave the question of conversion one of law merely.
    A demand and refusal are only evidence of conversion, and may be repelled by proof showing that a compliance with the demand was impossible.
    Therefore, where in trover the special verdict stated a demand and refusal, but did not show that the property was in the possession of the defendants at the time of such demand, there being also other evidence stated in the verdict tending to show that the property was not then in their possession; held, not sufficient to entitle the plaintiff to judgment on the verdict.
    And although the special verdict also found that the defendants had sold the property, yet it appearing that they had authority to sell it on account of the plaintiff, and the fact not being negatived that the sale was for the purpose and in the. manner authorized; held, that the court could not adjudge that there had been a conversion.
    Covell sued Hill and Sapford in the supreme court, in trover, for 52,900 feet of pine lumber. The cause was tried at the Chemung circuit in May, 1844, when the jury found a special verdict, assessing the plaintiff’s damages contingently at $500, . on which the supreme court gave judgment for the plaintiff For a statement of the case and the opinion of the supreme court, see 4 Denio, 323. The defendants bring error to this court.

      S. Stevens, for the plaintiffs in error.

      N. Hill, Jr. for the defendant in error.
   Gardiner, J.

In the action of trover the jury may undoubtedly refer the question of a conversion to the court as a question of law. But in order to do this, the record must state every fact necessary to the legal conclusion which will then be declared by the court. The difficulty in the present case is that the special verdict neither finds a conversion in terms, nor the facts that will enable us to determine it as a question of law in favor of the plaintiff.

To maintain this action the plaintiff must establish property in himself, and a tortious conversion by the defendant. In this case the special verdict has not found in- terms that the plaintiff was the owner of the lumber, and if this fact is to be implied against the defendants from the agreement between Covell and Potter, it appears from that instrument that although the title was to be held by the plaintiff, yet Potter was constituted his agent to deliver the lumber to the defendants, to employ them to sell it, and to account for the avails to him and the plaintiff respectively, according to the agreement. The defendants, therefore, upon the receipt of the lumber from Potter, acquired by the assent of the plaintiff a rightful possession coupled with- an authority to dispose of the property.

The sale of the lumber subsequently by the defendants was consistent with the rights of the plaintiff as general owner, and of itself, consequently, would not constitute a conversion. Now the jury have found that the defendants disposed of the greater part of the lumber in 1842, without stating the time more particularly or the quantity, and the residue in 1843. Their verdict does not state however whether any of the property was sold in a manner or for a purpose not authorized by the agreement set forth, or even by the express directions of the plaintiff contained in his letter of the 8th of October. These are all facts which we must presume in order to determine the question of a tortious conversion.

It is true that the special verdict set forth a demand of the lumber by the plaintiff in April, 1843, and a refusal by the defendants to deliver the same, unless the advances made by the latter to Potter were first paid. But the jury have not found the fact that any part of the lumber was then in the possession or under the control of the defendants; on the contrary it appears affirmatively from the verdict that the greater part of the property had been sold, and that all might have been, prior to the demand. A demand and refusal are but evidence of a conversion. As evidence it may be met and repelled by proof that a compliance with the demand was impossible. (5 Burr. 2825 ; 1 Cowp. 439.) It is sufficient to say that' we have only evidence in this case tending to prove a conversion. We are first to presume certain facts, and then declare the law applicable to them. The first is the exclusive province of the jury. The office of a special verdict is to present facts, and not merely the evidence of facts, (8 Cowen’s R. 413, 414.) It was observed by C. J. Dallas, “ that sufficient facts must be stated on the record to refer to the court the consideration of the question of law.” (8 Price’s R. 383.) This is an intelligible rule which obviously has not been complied with in this case. The defects in the special verdict were not alluded to in the supreme court. They present, however, an insuperable obstacle to a decision by this court of the questions intended to be presented by these parties. There must be a new trial upon which the facts may be ascertained and properly presented upon the record.

Ordered accordingly,


text:
    Pitts vs. Wilder.
    The declarations of a person in possession of lands are competent evidence against himself and all persons claiming Under him, for the purpose of showing the cha-, racter of his possession, and by what title he claims.
    Where A. being in possession of lands and claiming to hold under a contract from •the Holland Land Company, executed to B. an instrument purporting to grant the absolute right to flow the lands by means of a mill dam, B. knowing the manner in which A. claimed to hold; held, in an action on the case for flowing the lands, that such instrument was not admissible in evidence to lay the foundation of a user adverse to the plaintiff who had acquired the title of the Holland Land Company.
    On error from the supreme court, where Wilder recovered judgment against Pitts in an action on the case. The facts are stated in the opinion of Jewett, O. J.
    & Stevens, for the plaintiff in error.

      N. Hill, Jr. for the defendant in error.
   Jewett, C. J.

Wilder brought an action upon the" case against Pitts for flowing his lands by means of a mill dam, maintained by him across the Oak Orchard creek, in the town of Ridgeway, in the county of Orleans. The suit was commenced in July and tried in October, 1843.

On the trial it was admitted that the defendant took possession of the mill and dam in question in the spring of 1838, under a deed bearing date the 8th of May in that year. The plaintiff, to show title in himself of the' premises claimed to be flowed, gave in evidence a deed from William Willink and others, constituting the Holland Land Company, to him conveying sixty-five acres of land, part of the premises in question, bearing date the 3d of January,, 1834; and also another deed from the same grantors to him, conveying one hundred acres, also part of the premises in question, bearing date 13th of January, 1832, both of which were acknowledged and recorded at about the time of their respective dates. The plaintiff also proved possession of the premises described in both deeds, and that a portion of these lands being wild and uncultivated had been flowed a number of years by reason of the defendant’s dam, and the amount of the damages sustained.

The defendant proved that one Gilbert Howell erected the first dam in 1816, and built a"saw and grist mill, and occupied them until the year 1836; that the dam had been maintained ever since, except when carried away by floods, and then had been rebuilt in a reasonable time; and that said Howell and one Isaac Bennett entered into a written agreement, which was produced, bearing date the 10th day of October, 1815, which the defendant’s counsel offered to read in evidence, in and by which agreement the absolute right to flow the land claimed by the plaintiff, and proved to have been flowed, purported to have been granted and conveyed by Bennett to Howell, his heirs and assigns; offering to show at the same time a regular claim of title and possession from Howell to the defendant of the mill dam and mills, and the right so attempted to be conveyed. The plaintiff’s counsel objected to the evidence, which objection the judge sustained and the defendant excepted. Howell had previously testified that Bennett told him that he occupied the flat lands, (the lands overflowed,) by an article of agreement from the land office at Batavia. As to the evidence of what Bennett told Howell about his title, the counsel foi the defendant, objected as irrelevant, but the judge overruled the objection and the defendant’s counsel excepted.

The evidence given by the parties upon the question whether the plaintiff’s land had been always flowed to the same extent since the erection of the dam in 1816, or whether within six or eight years prior to the commencement of the suit, the dam had been raised higher by the defendant, and that since that time the said lands had been flowed to a. greater extent by reason thereof, was conflicting. The plaintiff had a'verdict and a bill of exceptions was signed, upon which a new trial was moved for but denied, and judgment rendered for the plaintiff upon the verdict. Two questions are made in this case, 1st. The defendant insists that the declarations made by Bennett to Howell, that he occupied the flat lands by an article from the land office at Batavia, were irrelevant, evidence. They were made to Howell at the time Bennett was in possession of the premises, and at the time he entered into the agreement with Howell conveying, or purporting to convey to him, a right or privilege to flow the lands. The defendant claims under Howell, who claims through Bennett that right. To show the character of his possession, those declarations would have been good as against Bennett, and of consequence against all who claim under him. (Jackson v. Bard, 4 John. 230.) I think the objection was correctly disposed of.

2. The defendant insists that the judge erred in sustaining the objection to his offer to read the agreement made between Howell and Bennett in evidence, accompanied by evidence showing that there had been a regular claim of title and possession from Howell to the defendant of the mill dam, mills, and the right so attempted to be conveyed. As the evidence stood, no title to the premises or any portion of them had ever vested in Bennett; and for more than twenty years before the suit was commenced he had not been in possession. All the right which it was shown Bennett had or claimed to have, to occupy as he did, for six or eight years subsequently from 1815, was under an article of agreement from the office of the Holland Land Company at Batavia.' The plaintiff succeeded to the title of the Holland Land Company to the premises, in part, in 1832, and to the residue in 1834, and went into possession. The agreement between Bennett and Howell, which was offered in evidence, was wholly irrelevant. It did not convey to Howell a title sufficient to vest an adverse possession, or adverse user, (Jackson v. Frost, 5 Cowen, 346,) because Bennett, at the time he entered into the agreement, did not pretend to have any title to the premises himself, and this was known to How-ell. And besides, the defendant did not pretend that he derived title to the right to flow in any other way than by an uninterrupted adverse user of twenty years ; and whether Bennett executed such an agreement or instrument was a matter of no sort of consequence. The evidence offered in connection with reading the instrument, could not aid the defendant; and if it had been offered or so considered, independent of the agreement or instru ment, I do not see its relevancy or competencjr. That branch of the offer was to show a regular claim of title and possession from Howell to the defendant of the mill dam, mills, and the right so attempted to be conveyed. Now a claim of title and possession would amount to nothing, and therefore the evidence of it was irrelevant. The offer was not to show an uninterrupted user from Howell to the defendant of the mill dam, mills, and the right to flow the plaintiff’s lands.

Evidence of that character had been given, and was pertinent. My conclusion is that there is no error in the judgment of the court below, and that it should be affirmed.

Judgment affirmed.


author: Wright, J.

text:
    Gardner vs. Heart.
    In an action on the case for an injury to real property, the- plaintiff must show either title or actual possession in himself at the time tile injury was committed.
    And if no one was in the actual possession, it will not be sufficient proof to authorize a recovery, to show that the premises were conveyed to the plaintiff at some period prior to the injury by a person not shown to have been in possession or to have title.
    This was an action .on the case brought in the supreme court by Gardner against Heart for an injury to three lots of land which the plaintiff claimed to own in the city of Troy. The defendant was the owner of a hill called Mount Ida in the vicinity of the lots, and the injury complained of was occasioned, as alleged, by the defendant carelessly and negligently undermining the hill, so as to cause a slide precipitating the earth upon the plaintiff’s lots. The cause was first tried before Willard, circuit judge, in 1843, when the plaintiff was non-suited. The supreme court on bill of exceptions set aside the nonsuit and ordered a new trial. See 1 Denio, 466, where the case, as it then appeared, is stated. Another trial was had before Parker, circuit judge, in April,1847, when a verdict was had for the plaintiff The defendant moved the supreme court for a new trial on bill of exceptions, which motion was denied. See 2 Barbi Sup. Court Rep. 165, for a statement of such questions as arose on the last trial, and the opinion of the supreme court. Among those questions was the following: The plaintiff gave in evidence a deed from Charles M. Baker to himself for the lots which had been injured, dated in 1829, but he neither proved that the grantor had any title, nor that either Baker or himself had been in possession. The defendant moved for a nonsuit, and urged as one of the grounds, that the plaintiff had not shown title to the lots claimed to have been injured. The motion was denied. The defendant appealed to this court under the judiciary act of December, 1847.

      J. Pierson, for the defendant.

      D. L. Seymour, for the plaintiff.
   Wright, J.

After the plaintiff had rested, the defendant’s counsel moved for a nonsuit on the ground that the former had shown no legal title to the lots in question. At this time the plaintiff had only introduced and read in evidence a deed from Charles M. Baker, dated July 24, 1829, purporting to convey to him the lots in fee. No evidence had been given, nor was it subsequently supplied, of title in his grantor; yet the judge refused to nonsuit the plaintiff, and affirmatively charged the jury that “ enough had been made out to show that the plaintiff was the owner of the lots.” They were unoccupied city lots. The plaintiff was bound to show either a regular paper title or actual possession. The barely giving in evidence of a deed to him of the premises, fell short of proving a title; yet the judge must have acted upon the assumption that it did prove such title, both in denying the nonsuit and in charging the jury. After the nonsuit had been denied, considerable evidence was incidentally given tending to show an actual possession of the lots by the plaintiff, insomuch that had the question of possession, upon such evidence, been submitted co the jury, and they had found for the plaintiff, we would haidly have disturbed their verdict on that ground. Bik no question of actual possession was made or submitted; and the judge seems to have continued to the end the error into which he had fallen on the motion for the nonsuit.

A new trial must be granted ua winch this error may be cor rected, costs to abide the event.

New trial granted.


author: The Court,

text:
    Houghtaling vs. Kilderhouse.
    In an action for slander, it is not competent for the plaintiff to introduce evidence of his good character in reply to evidence introduced by the defendant tending to prove the truth of the chárge.
    On error from the supreme court, where Houghtaling sued Kilderhouse in slander for charging the plaintiff with having killed the defendant’s horses by administering poison to them. The defendant pleaded not guilty and gave notice of justification. ' On the trial, after the plaintiff had proved the speaking of the words, the defendant gave circumstantial evidence tending to show that the charge was true. The plaintiff also introduced evidence upon that issue in reply, and in connection with such evidence offered to prove that his general character was good. This was objected to by the defendant and excluded. The plaintiff excepted. The jury having found a verdict for the defendant, the plaintiff moved in the supreme court for a new trial, which was denied by that court, and judgment rendered for the defendant, (See 2 Barb. Rep. 149.) -

      H. G. Wheaton, for the plaintiff in error,
    insisted that the issue on the trial involved simply the question of guilt or innocence of a crime, amounting to felony and involving gross moral turpitude. In such cases the general good character of the party accused is always a circumstance to be submitted to the jury to repel the presumption of guilt; particularly where the evidence to sustain the charge is, as in this case, purely circumstantial. (Ruan v. Perry, 3 Caines, 120; Townsend v. Graves, 3 Paige, 453; Harding v. Brooks, 5 Pick. 244 ; Greenl. Ev. § 426; 2 Starkies Ev. 216, 217, n. 4; Powell v. Harper, 5 C. & P. 590; Petrie v. Rose, 5 Watts & Serg. 364.)

      R. W. Peckham, for the defendant in error,
    cited upon the question, Goff v. St. John, (16 Wend. 646;) Fowler v. The Ætna Fire Ins. Co. (6 Cowen, 673;) Humphrey v. Humphrey, (7 Conn. R. 116;) Potter v. Webb, (6 Greenl. Rep. 141;) Anderson v. Long, (10 Serg. & Rawle, 55 ;) Nash v. Gilkeson, (5 id. 352;) Woodruff v. Whittlesey, (Kirby, 60;) Attorney General v. Bowman, (2 Bos. & Pull. 532.)
   The Court,

after advisement, were of opinion that the point had been properly decided in the courts below, and therefore the judgment' was affirmed.


text:
    Lyme vs. Ward, survivor, &c.
    It is irregular to serve an assignment of errors before' one has been filed; and where the assignment was not filed until the next day after it was served, the rule to join in error and all subsequent proceedings set aside.
    Where the judgment of the court below is reversed by default in not joining in error, the remittitur should not be sent to the court below until ten days have elapsed.
    Where the action was commenced before the code of procedure took effect, this court may grant costs on a special motion; and the amount is to be settled by taxation.
    But where the suit is commenced after the code took effect, this court cannot graxj costs to the party who makes a special motion.

      Writ of error by Lyme to remove a judgment against him in favor of Ward and Goadby, in the New-York C. P. The writ of error was returned and filed with the clerk of this court on the 30th of June last. On the same day the plaintiff in error served an assignment of errors, with notice that the defendant Ward, who had survived Goadby, was required to join in error within eight days, or be precluded : but an assignment of errors was not filed until the next day, the first of July. On the 11th of July, the plaintiff in error entered an order precluding the'defendant in error from joining in error. On the 13th of July, the plaintiff in error entered an order reversing the judgment of the court below with costs; and on the same- day a remittitur was issued.

      N. Hill, Jr. for the defendant in error,
    moved to set aside the order precluding the defendant from joining in error, and all subsequent proceedings, for irregularity.

      S. Stevens, for the plaintiff in error.
   Bronson, J.

The plaintiff in error was irregular in serving an assignment of errors before one had been filed: (Rule 4.) and the orders precluding the defendant from joining in error, and reversing the judgment, were therefore unauthorized. We are also of opinion, that the remittitur should not have been sent to the court below until the expiration often days from the reversal of the judgment. (Rule 20.)

As the defendant in error has been obliged to come here at considerable expense to get rid of an irregular proceeding, he ought to have costs on the motion, if we have any authority to give them. The 270th section of the code of procedure forbids the allowance of costs to the party who makes a motion. But originally, that section did not apply to this suit, which was commenced before the first of July. (Code, § 8,391.) And although it has since been applied to proceedings in such suits subsequent to the first of July in certain specified courts, this court is not among the number. (Supp. Code, § 2.) We, therefore, have power to allow costs. The amount must be settled by taxation. The statute authorizing the supreme court to make rules regulating the amount‘of costs on special motions does not apply to this court. (Stat. 1840, pp. 333, 336, §§15, 39: Stat. 1847, p. 321, § 8.) If the suit had been commenced since the first of July, the defendant in error would have been obliged to bear the expense of getting rid of the irregular r - feedings of his adversary.

Motion granted, with costs to be taxed.


text:
    Van Dewater, appellant, vs. Kelsey, respondent.

    It rests in the discretion of the court of original jurisdiction to grant, continue, or dissolve a temporary injunction; and therefore a determination upon such a matter is not the subject of appeal to this court.
    On a bill filed by Van Dewater, a temporary injunction was issued, restraining the defendant from selling the property in controversy pending the litigation. In December last, after the defendant had answered the bill, the supreme court made an order dissolving the injunction; from which order the complainant appealed to this fcourt.

      S. Mathews, for the respondent,
    moved to dismiss the appeal, on the ground that an appeal would not lie in such a case. He cited 16 Wend. 369; 1 Comst. 43; 4 John. 510; 4 Wend. 173; 1 Paige, 97; 3 John. 566; 2 Story's Eq. §§ 863, 959,(a.) ; 3 Daniel's Ch. Pr. 1833, ch. 35, § 3.

      N. Hill, Jr. for the appellant, cited 16 Wend, 373; 26 id. 152
   Bronson, J.

The granting, continuing and dissolving ot temporary injunctions rests in the discretion of the court of original jurisdiction; and we think an appeal will not lie from the order dissolving this injunction.

Motion granted.


author: Bronson,. J.

text:
    Selden, appellant, vs. Vermilya and others, respondents.

    Under the provisions of the code of procedure, there is no right of appeal to this court from an interlocutory determination of the supreme court, e. g. an order ditf solving a temporary injunction.
    On a bill filed, a temporary injunction was granted restraining the sale of the property in controversy pending the litigation; Pending the suit, in September, 1847, the supreme court in special term made an order dissolving the injunction; which order was confirmed by the supreme court on a re-hearing in general term, in September last. From the order made at the general term the complainant appealed to this court.

      G. F. Comstock, for the respondent, moved to dismiss the appeal.

      P. Y. Cutler, for the appellant.
   Bronson,. J.

Although this suit was commenced prior to the first of July, yet as the order of the general term dissolving the injunction was made since that day, the right to appeal depends on the code of procedure. (Mayor of New- York v. Schermerhorn, ante, p. 423.) And it is quite clear that the code does not give an appeal in such a case. (§§ 282,11.)

Motion granted.


text:
    Marvin and others vs. Seymour and others.
    An appeal will not lie to this court from an order of the supreme court in genera, term, denying an application to rehear an order made at a special term, where the order of the special term would not be the subject of appeal to this court, if it had been affirmed by the general term.
    A motion to compel a party to appear before a master and submit to an examination is addressed to the discretion of the court of original jurisdiction, whose decision, therefore, cannot be reviewed in this court.
    The defendants made a motion before the supreme court in special term, for an order to compel one of the complainants to appear and submit to an examination before a master to whom the cause had been referred. The motion was denied. The defendants then applied to the supreme court in general term for a rehearing, which was denied in May last. From the order denying the rehearing the defendants appealed to this court.

      N. Hill, Jr. for the respondents, moved to dismiss the appeal

      II. Denio, for the appellants.
   Bronson, J.

We held in Grade v. Freeland, (ante, p. 228,) that a party had a right to a rehearing at the general term, after a matter had been decided against him at the special term; and we have acted upon that decision by reversing orders denying a rehearing. But it has been in cases where the order made at the special term, if it had been confirmed by the general term, might have been reviewed by this court on appeal. In this case we think the order made at the special term would not have been appealable, if it had been confirmed by the supreme court in general term; and in such a case, although a rehearing may be improperly denied by the supreme court, we are of opinion that there can be no appeal from the decision to this court.

Motion granted.


text:
    Grover, appellant, vs. Coon, respondent.

    Where a writ of error was pending in the supreme court when the code of procedure took effect, and that court afterwards rendered judgment of affirmance, there is no right of appeal to this court, the determination of the supreme court being final under the provisions of the code.
    A statute, which takes away the right to a future appeal in an action pending and undetermined when the statute takes effect, is not unconstitutional.

      C. P. Kirkland, for the respondent,
    moved to dismiss the appeal. Before and on the first day of July last a writ of error was pending in the supreme court, on a judgment of the common pleas affirming a judgment rendered by a justice of the peace, in an action commenced before him. On the 20th of July last, the supreme court, after argument, affirmed the judgment of the justice; and Grover appealed to this court from that determination.

      John Clarke, for the appellant.
   Bronson, J.

The 282d section of the code of procedure applies to proceedings subsequent to the first of July, in suits which were pending on that day. (Supp. Code, § 2.) The writ of error in this case was pending in the supreme court on the first of July, and was, we think, a suit within the meaning of the statute. The judgment of affirmance was subsequent to the first of July; and as the action was “ originally commenced in a court of a justice of the peace,” there was no right of appeal to this- court. (§§ 282, 11.) The judgment of the supreme court was final.

We see no force in the objection urged by the appellant’s counsel, that the statute is unconstitutional. The legislature did not take away a right of appeal which had already attach ed: they only said that for the future, no appeal to this court should be allowed in such cases.

Motion granted.