author: By the Court. Slosson, J. Bosworth, J.

text:
    Thomas M. Partridge and James M. Goold v. Joseph T. Gilbert, Guy R. Prentiss and Austin S. Tuttle.
    The plaintiffs claimed to recover damages for the wrongful taking down by the defendants of a party wall, and the jury, under the direction of the court, found specially that the condition of the wall was such “ that a just regard to the safety of life and property rendered its removal necessary.”

      Held, that the question was properly submitted to the jury, and their finding thereon conclusive.

      Held, that the condition of the wall, as found by the jury, justified the defendants in taking it down and building a new one, it appearing that the work was done with the requisite caution and skill. The finding of the jury was equivalent to a finding that the wall, in its actual state, was a public nuisance (Slosson, J.)

      Held, that the right of the owner of a building to take down a decayed and ruinous party wall is not affected by the nature of the use and occupation of the adjoining building.

      Held, that in all cases where a general verdict may be given, the judge may instruct the jury to find upon particular questions of fact stated to them in writing.

      Held, also, that when the damages to be given are limited to an indemnity, the judge may instruct the jury to find the particular items of damage and the sums applicable to each.
    (Before Oakley, 0. X, Boswobth and Slossok, X.X)
    Jan. 25;
    Feb. 25, 1854.
    Tilts cause was tried upon the issues raised by the pleadings before Duer, J., and a jury in November, 1852.
    The action was brought by plaintiffs as tenants of the store number 18 Courtlandt street, New York, to recover damages against the defendants, for taking down and demolishing the westerly wall of said store.
    The defendants set up in their answer two distinct grounds of justification, one founded upon the peculiar construction of the wall, and the manner in which it had been conveyed by the original owner; the other upon its alleged dangerous condition.
    The wall in question, it appeared, was the division wall between said store, number 18 Courtlandt street, which belonged to one Jacob Surget, under whom plaintiffs occupied, and number 20, the store next westerly, which belonged to the defendants. The premises were, originally, two dwelling houses, with an arched passage-way between them, about four feet in width, taken one half from each lot, and leading from the street to the yards in the rear. This passage-way had been originally for the common use of both houses. From the crown of the arch rose the division wall in question, which supported the beams of each edifice.
    Prior to November 14, 1791, Peter Stuyvesant was the owner of the ground occupied by both buildings, being 56 feet in front on Courtlandt street by 138 feet in depth; and at that period had erected the buildings which were standing thereon at the time of the acts complained of. On that day he conveyed the said lot and buildings to Theodosius Fowler, describing the premises as above stated, “with all and singular the edifices, buildings, improvements, ways, watercourses, easements, profits, commodities, emoluments, rights, members, hereditaments, and appurtenances whatsoever to the said lot or premises belonging or in any wise appertaining.” On the 25th June, 1794, Fowler conveyed the premises, by the same description, to William S. Smith; and on the 5th October, 1796, Smith conveyed the easterly half of the premises, since known as number 18 Courtlandt street, to William W. Burrowes, describing the premises as bounded “on the west by another house and lot of said William S. Smith,” and as containing “ in breadth in front 28 feet or more, and in the rear 28 feet or more, and in length on each side 138 feet, more or less, being one moiety or half part of a large lot of ground containing 56 feet or more in front and rear, and in length on each side 138 feet, more or less, purchased by Theodosius Fowler of Peter Stuyvesant, together with all and singular, the messuages, edifices, buildings, improvements, ways, watercourses, easements, profits, commodities, emoluments, rights, members, tenements, hereditaments, arid appurtenances to the said lot, piece, or parcel of ground appertaining or in any way belonging.” Jacob Surget, plaintiff’s landlord, took, possessed, and had, May 1st, 1848, all the right, title, and interest, thus conveyed to said Burrowes.
    On the 28th February, 1799, after the said conveyance of the easterly building, said William S. Smith conveyed the westerly building to John Atkinson, describing the premises as bounded “ on the east by a house and lot of ground late the property of said William S. Smith,” and as containing “ in front on Courtlandt street, 28 feet or more,” &c.; together with, “ all and singular, the houses, outhouses, buildings, ways, passages, privileges, advantages, hereditaments, and appurtenances whatsoever to the same belonging, or in any wise appertaining.” On the 27th Hovember, 1849, the defendants acquired the right, title, and interest thus conveyed to said Atkinson.
    The defendants, in that portion of their answer which embraces the first ground of justification or defence, after stating the peculiar 'construction of the passage-way and division wall, allege that by the first deed, conveying the easterly half of the premises (now the store Ho. 18), the grantee became seized thereof, “subject to the rights in said wall and passage-way, and- a portion of the land covered thereby, which formed the then remaining lot, No. 20 Courtlandt street,” and that Jacob Surget-also took, “subject to the rights aforesaid;” that by the subsequent conveyance of the westerly half (now No. 20 Courtlandt street), the grantee became seized in fee of said lot No. 20 Courtlandt street, “ extending to the centre of said passage-way, and the absolute owner of the wall on said last mentioned lot, which formed one of the supports of the said archway, and the absolute owner of one half of the wall extending from the top of said arch to the top of the building.” “ That when the said lot, No. 20 Courtlandt street, was conveyed as a separate lot, there was not granted therewith, nor created by the conveyance thereof, any estate or interest in, or any easement upon, or right to support, from the premises No. 20 Courtlandt street.”
    The defendants then proceed to state that they had determined to take down their building No. 20 Courtlandt street, and gave plaintiffs due notice of their intention, and commenced their work; that plaintiffs thereupon procured an injunction restraining the defendants; that at that time it was evident that the division wall was so unsafe and insecure as to be incapable of standing without the support of the remaining walls and timbers in the tenement of the defendants; that the injunction order was dissolved on the ground that plaintiffs had no right to prevent the defendants from taking down their building, and that they had a right to take down the division wall, and the wall within their lot, which partially supported the arch, and that thereupon they proceeded to do so in a careful and workmanlike manner.
    The second ground of justification or defence was, that the said division wall and arch was, on and after the 1st of Hay, 1850, in a cracked, weakened, and dangerous condition; that previous to that day they had determined to take down their building and erect a new one, and had given plaintiffs notice of such intention; that on proceeding to take down the said wall it was found to be dangerous, and that the said wall was a nuisance, inflicting great injury upon the property of defendants ; whereupon they took down the same carefully..

      The allegations in the answer were denied in the reply.
    Upon the trial the several conveyances under which the parties acquired title were produced and had in evidence. Their contents have already been sufficiently stated.
    The plaintiffs proved their possession of store Ho. 18 Courtlandt street, and the demolition by the defendants of the party-wall in question, and gave evidence tending to show the nature and amount of the damages they had sustained.
    The defendants then gave evidence, by several witnesses, of the insecure and dangerous condition of the wall, showing that the arch on which it rested was cracked and bulged out, and that, for the purpose of supporting the wall, a girder had been run under the crown of the arch, supported its whole length by a row of locust posts.
    The defendants also introduced the summons and complaint on which the injunction had been applied for, the order to show cause, and the order denying the motion, and also proved that they had given the notice mentioned in their answer.
    The plaintiffs gave rebutting evidence as to the security and firmness of the wall, and tending to explain the bulge in the arch, and to show that the premises were in the same state that they had been since 1836, when the buildings were changed into stores, a new story added, the posts put under the arch for support, and the entrance to the passage-way bricked up; and also to show that the stores had been occupied since for merchandising of various kinds, and had given no indications of falling.
    When the testimony was closed, and the counsel had summed up, the court required the jury to answer specially the following questions, which were submitted to them in writing:—
    1. Was the condition of the arch and party-wall between the buildings in question so dangerous on the 1st day of May, 1850, that a just regard to the safety of life and property rendered their removal necessary ?
    2. Had no change been made, were the buildings fit and safe for occupation as stores during the ensuing year ?
    3. If you shall be of opinion that the arch and party-wall in their actual condition would have sustained the buildings for one or more years, was or was not their condition such that in the exercise of ordinary prudence it was expedient to remove them?
    4. Would or would not the removal by the defendants of that portion of the party-wall (including the arch) which was on their premises have occasioned the destruction of the whole ?
    5. Would or would not the same consequence have followed had the defendants removed the front and rear walls of their building, together with floors and beams ?
    6. What damage, specifying the items and the total amount, have the plaintiffs sustained, assuming the acts of the defendants in taking down the party-wall to have been wholly unlawful ?
    The counsel for the plaintiffs objected to this course, and to the manner in which the questions were framed. The court overruled these objections, and the plaintiffs’ counsel excepted.
    The counsel for the plaintiffs further objected to the first and third questions as foreign to the issues involved in 'the action. The court overruled the objection, and the plaintiffs excepted.
    The counsel for the plaintiffs proposed the following instead of the second question
    If both buildings had been undisturbed, would the division wall have been a sufficient support to Eo. 18 for the residue of the plaintiffs’ term, as that store had been occupied during the former part of the term?
    If both buildings had been undisturbed, would they have been safe and fit for occupation during the year 1850, with proper precautions as to the business for which they were used ?
    The court refused to put these questions to' the jury, and the plaintiffs’ counsel excepted.
    The plaintiffs’ counsel objected to the last question, on the ground that the court had no right to call upon the jury to specify the items of damages found by them. The court overruled the objection, and plaintiffs excepted.
    The judge then summed up the evidence applicable to the questions he submitted, and in the course of his observations said that the testimony of one of the plaintiffs’ witnesses, owing to his slight superficial examination of the premises, was in his .opinion entitled to very little, if any, weight, and also said, that in his judgment the possibility or even probability that the "buildings as they then were might have heen safely used for a "considerable time for light merchandise, was by no means sufficient to disprove the allegation that their actual condition was such that a prudent owner would have deemed it his duty to take down and rebuild the division wall. To these observations, as an improper direction to the jury, the counsel for the plaintiffs excepted, and the judge then stated to the jury that they were the judges of the evidence, and were not to be influenced by the comments which he had made further than they might believe them to be reasonable and just.
    The jury returned a verdict as follows: To the first, third, fourth, and fifth questions—Yes; to the second question—Ho; to the sixth question, seven hundred and three dollars, specifying the items as follows:—
    Dust .... $53 "Water .... 95 Loss of rent . 280 Interruption to business . 275 Total .... . $703
    The court thereupon ordered that the case be reserved for argument, that judgment be stayed, and that plaintiffs apply for such j udgment to the general term, on a case to be made by them. Either party to be at liberty to turn the same into a bill of exceptions.

      S. P. Nash, for the plaintiffs, in moving for judgment upon the verdict, argued as follows.
    I. The acts complained of by plaintiffs having been proved, and the jury having assessed the damages caused thereby, at $703, the plaintiffs, are entitled to judgment for that amount, unless the defendants have established a valid justification. 1. The plaintiffs were 'in rightful possession of store Ho. 18, and unless the defendants have established some right so to do, the taking down the wall oh lot Ho. 18 was wrongful and gave a right of action. (Matts v. Hawkins, 5 Taunt. 20 ; Bradbee v. Christ’s Hospital, 4 Man. & Gr. 714; Newkirk v. Sabler, 9 Barb. 652.) 2. The title of the respective owners was in severalty, and extended to the centre line of the division wall; any disturbance by either owner of that portion of such wall which was within the bounds of the other lot, was prima facie unlawful.
    EC. Neither of the alleged justifications set up in the defendants’ answer, does of itself, nor are they so established by the finding ci the jury, as to constitute a justification for the acts complained of. And first, as to the justification on the ground of the several ownership and common user of the wall and arch. 1. The disposition of the .two tenements by the original owner, the construction of the arch and of the wall resting upon it, followed by the deed of the easterly portion by a description which carried title to the centre of the division wall, with all ways, easements, &c., conveyed to the purchaser the fee in severalty to the middle of the passage-way, and thence upward through the centre of the division wall; and also conveyed to him the right of way through the said passage, and the easement "of support for his half of the arch and division wall by the residue of the original tenement, that is to say, by the westerly half of the division wall and arch, and by the westerly building itself. (Com. Dig. Grant (E. 9, 11); Nicholas v. Chamberlin, Cro. Jac. 121; Canham v. Fisk, 2 Tyrwh. 155 ; Brown v. Windsor, 1 Crompt. & Jerv. 20 ; Hide v. Thornborough, 2 Carr. & Kirw. 250 ; Humphreys v. Brogden, 12 Adol. & El. (N. S.) 739; Story v. Oden, 12 Mass. 157; United States v. Appleton, 1 Sumn. 492; Oakley v. Stanley, 5 Wend. 523 ; Lasada v. Holbrook, 4 Paige, 169 ; French v. Carhart, 1 Comst. 96; Runnels v. Bullen, 2 N. Hamp. 532 ; 4 Kent. Com. 467; Gale & Whatley on Easements, 49, 50.) The incorporeal hereditaments of ways, easements, &c., were granted besides, and in addition to the land itself which was bounded by the centre line of the wall. Smith, the original owner, who first separated the properties, after the conveyance to Burrows (from whom plaintiffs’ landlord derived title), though he .retained the fee of the soil to the westerly half of the passage-way, retained it subject to the right of way he had granted, and could not have so changed or improved his property as to destroy that right of way. So, though he retained the fee including the westerly wall of the arch, and the westerly half of the division wall, he could not take them down simply with a view of improving his property, if he thereby impaired the support of the other half of the wall. These are alleged to be the respective rights of the parties, assuming the walls to have been sound, and the question to have arisen, for instance, immediately after the conveyance by Smith to Burrowes. The plaintiffs had all the right and title conveyed by Smith to Burrowes, and the defendants all the right and title retained by Smith, and subsequently by him conveyed to Atkinson. The easement of support thus conveyed to Burrowes was not simply of support for his beams, as would have been the case if the conveyance had carried title only to the side of the division wall, and not to its centre, but was an easement of support for the easterly half of the division wall. In the former case, supposing the whole of the division wall to have belonged to the westerly lot, its owner might, perhaps, have taken it down, if he furnished a support to the beams of Ho. 18, but as his right was only to take down half of the division wall, and his duty was to support the other half, he could not exercise his right if he thereby destroyed the support which he was under obligation to furnish. (Bradbee v. Christ's Hospital, 4 Man. & Gr. 714.) 2. But assuming that there was no easement of support, that the parties were simply owners each of his side of the division wall, without obligation to leave it in that position for the benefit of the other part, still the defendants had no right to take down the portion on the plaintiffs’ lot, though it was necessary to do so in order to take down safely their own. Had they undertaken to cut down their own side of the wall, and the other had fallen, they would, on the assumption of this point, have committed no wrong, and the damage to plaintiffs would have been dmrmum absque injuria. ( Wigford v. Gill, Cro. Eliz. 269.) By actually taking down plaintiffs’ wall, they were guilty of an invasion of their right, and the injury and damage concurring gave a right of action. (Hay v. The Cohoes Co., 2 Comst. 159; Van Hoesen v. Coventry, 10 Barb. 518, 522.) 3. In either view of the rights of the respective parties, whether the building, Ho. 18, with its half of the arch and division wall, had or not an easement of support from defendants’ building, with its half of the wall and arch, the ruinous and decayed condition of the arch and wall gave no right to the defendants, on the ground of their common interest in the wall, to commit the acts complained of. Their alleged right to abate it as a nuisance stands on a different ground, irrespective entirely of the nature of the wall, as a common or party wall, and will be subsequently considered. The respective owners were owners in severalty to the centre line of the wall. This point is contended for by both sides. There was, therefore, no tenancy in common in the wall, but simply a several right in each owner to use the same wall for the several and distinct support of each building. This right appertained to the wall then in existence, and gave no right to a new one (Sherred v. Cisco, 4 Sand. Sup. Ct. Rep. 480); and, therefore, gave no right to destroy, but simply to uphold and repair the existing wall. But considered as tenants in common of the wall, an action would lie for a disturbance of the plaintiffs’ individual rights consequent on the repair, though the action of trespass was held on technical grounds not to lie in Cubitt v. Porter, 8 B. & C. 257; see Wiltshire v. Sidford, 1 Man. & Ryl. 404, and note (a) at the end of the case. The ease of a repair by a tenant in common of a mill or house is not analogous. In that case there is a common and no several possession, and the right of each tenant is commensurate with that of the other. Here, assuming that the parties are tenants in Common of the wall, they are tenants in common of nothing else, and the taking down of the wall is an invasion and disturbance of the security and protection it affords to the plaintiffs individually, and which is a several and not a common right. Besides, in the case of a pure tenancy in common, the tenant desiring to repair was always bound to call upon his co-tenant to join in the repairs. (Mumford v. Brown, 6 Cow. 475; Doane v. Badger, 12 Mass. 65.) And it may further be safely asserted that there is no case at common law authorizing a tenant in common of a mill or house to take it down and build a new one; the remedy seems to have been confined to repairs strictly. (2 Story Eq. Jurisp. § 1245; Taylor v. Baldwin, 10 Barb. 582, 590; S. C. on Appeal, p. 626.) In this case the wall had not been examined in reference to repairing it; all the witnesses called by the defendants show their first examination was made after the 1st May, when the demolition of the wall had been commenced. Their examinations were made in order to oppose the granting of an injunction. There was no notice to the plaintiffs that the wall needed repair; no request to them to join in repairing it; and no intention or design on the part of the defendants to repair it. Had it been ever so sound, it would not have answered their purposes. They wanted stronger and deeper foundations; and accordingly the notice they gave was, that they intended taking down the wall “ for the purpose of erecting a new building.” The case in chancery of Campbell v. Mesier, 4 John. Ch. 334, can be sustained, if at all, only on its special circumstances. It was a suit for contribution against the party who had objected to the erection of the new wall, but who had subsequently acquiesced, and used the wall. The only common law principle upon which the decision is based, is the right of a tenant in common to repair at the joint expense. The taking down of the wall was preceded by a careful examination of experts, who pronounced the wall incapable of repair, and their certificate was served on the objecting party, who was requested to join in the new erection. A court of law had nonsuited the party erecting the new wall in an action for reimbursement, and the decision of the chancellor was put upon the equitable doctrine of contribution, and as remarked by Justice Story (1 Eq. Jurisp. § 469, note [2]), “ is mainly rested upon principles of equity derived from the civil and foreign law.” The case has been confined strictly to its own circumstances, by the judgment of this court in Sherred v. Cisco, 4 Sand. Sup. Ct. Rep. 480. In the case at bar, the owners of the wall were not tenants in common, but in severalty. The right of common user gave at the utmost a right to repair the existing wall, not to destroy it. It is not found by the verdict, nor is there any evidence in the case, that the wall was incapable of repair, while there is evidence that the wall might have been repaired. The Foreign and Civil Law referred to by Chancellor Kent, gave the right to rebuild the wall, only after notice to the party refusing, and after the judgment of a competent tribunal authorizing the new erection. If the Foreign Law is resorted to for the purpose of establishing the right to take down a division wall, the restrictions imposed by the same law should be also adhered to. Some such restrictions are necessary to protect individual rights, and are provided by statute in those places where party walls have been the subject of statutory regulation. (Stat. 7 and 8 Yict. c. 84, §§ 20 to 24; Purdon’s Dig. [Penn.] 634.) The jury found that the condition of the arch and wall was so dangerous on the 1st May, 1850, that a just regard to the safety of life and property rendered their removal necessary, and that had no change been made, the buildings were not fit and safe for occupation during the ensuing year. These findings were in reference to the ground taken that the wall was a nuisance. The defendants omitted to show that the buildings could not be repaired; nor was that question submitted to the jury. The evidence was principally to the point that the wall was incapable of standing as it was, or if the defendants proceeded to take down their building; but it is evident from the whole case, that a stone wall, built under the arch, in place of the locust posts, would have made the wall safe for the existing buildings. It is, therefore, contended that the defendants have not shown any justification, as set up in the first branch of their answer, for taking down the wall in question.
    HI. The owners of the two tenements had acquired by prescription the right of support each from the other. (Baldwin v. Calkins, 10 Wend. 167; Smith v. Adams, 6 Paige, 435; Lasala v. Holbrook, 4 Paige, 169.) The two buildings, originally supported by each other, were built by one owner of both • the title was severed in 1796, and from that time till the time of the acts complained of, fifty-four years, they had been held by different owners, and acquired their support each from the other.
    IY. The second branch of the defence, that the wall was dangerous and a nuisance, is not so set up in the answer, or established by the evidence or verdict, as to constitute a justification of the acts complained of. (Anon. 3 Atk. 750 ; Earl of Lonsdale v. Nelson, 2 Barnw. & Cressw. 311; Gates v. Blancal, 2 Dana, 158; Moffat v. Brewer, 1 Greene (Iowa), 348.) 1. The wall taken down was the division wall. The front wall on the street, which was the only one that could be dangerous to passers-by, was not disturbed. There is no pretence, therefore, of justification for the defendants’ acts, as being the abatement of a public nuisance. 2. To justify the abatement of a private nuisance not in itself an encroachment on the party’s rights, but simply a nuisance as being dangerous, the danger must be imminent, the evil impending. There is no ground for saying this was the case with the wall in question. Both stores had been safely occupied up to the 1st May, 1850, the day defendants began their work, without indication of danger or insecurity. The verdict is, that on that day the wall and arch were in so dangerous a condition that a just regard for the safety of life and property rendered their removal necessary. This would be sufficient, perhaps, to protect the defendants, had they been acting under any police or other public authority, but not to justify them in taking the law into their own hands. 3. The defendants, as abaters of a nuisance, had no right to go beyond what safety required. All danger must certainly have been out of the question, after the wall was taken down as far as the arch. This would have left plaintiffs’ store undisturbed. Having gone beyond this they were trespassers áb vniUo. (Adams v. Rivers, 11 Barb. 390.) 4. The defendants had no right to abate the wall as dangerous, if it could be repaired. That it was not capable of being repaired, is not shown by the evidence or found by the verdict. 5. The ground that the defendants, in taking down the wall and arch, were abating a nuisance, is wholly an afterthought. They had determined (see their answer) to take down the wall in order to rebuild. The rights of the plaintiffs stood in their way: they determined to, override them, and find afterwards such grounds as they could to. avert the consequences.
    Y. The answer does not state sufficient facts to constitute either defence contained in it, assuming such defences to be established by the verdict. The plaintiffs are, therefore, entitled to. judgment, notwithstanding the verdict.
    YI. The refusal to grant an injunction was no. bar to plaintiffs’’ action. The application was heard on affidavits, and was denied upon the ground, among others, that plaintiffs had a perfect remedy by an action for damages. There was no decree shown in the injunction suit, nothing that can in any way bar this action.
    YH. The- items of damage proved, loss of rent, interruption to business, damage by dust and water, were proper to lay before the jury, and were properly proved.
    YIU. But if the court is of the opinion that the answers returned by the jury to the several questions put to them, establish a defence to the acts complained of, the plaintiffs ask for a new trial, on the ground of improper rulings by the judge presiding at the trial. 1. The judge admitted, improperly, conjectural and irrelevant testimony. 2. The judge had no right, without the consent of counsel, in a naked action of tort, to propound to the jury special questions of fact for them to answer. (Code, §§ 261, 262.) 3. The questions were leading, and not fair to the plaintiffs’ case. 4. The judge improperly refused to put the questions proposed by plaintiffs.

      S. Sherwood and E. Sandford, for the defendants,
    controverted at large the positions on which the plaintiffs’ counsel relied, and insisted that upon the facts specially found by the jury, the defendants were clearly entitled to a judgment dismissing the complaint.
    They cited (inter alia) the followiúg cases and authorities. (Campbell v. Mesier, 2 John Ch. Ca. 334; Lasala v. Holbrook, 4 Paige, 169 ; Palmer v. Wetmore, 2 Sand. S. C. R. 316 ; Thurman v. City of New York, 5 Sand. R. 16 ; 5 Taunt. 20 ; 8 Bos. 284; 8 Ad. & Ell. 138; 9 Bos. 725.)
   By the Court. Slosson, J.

The plaintiffs, who were lessees of the store No. 18 Courtlandt street, seek to recover damages against the defendants, owners of the adjoining lot and premises on the westerly side of No. 18, for taking down the westerly wall of the latter store.

The two lots were originally but one, fifty-six feet in width, and owned by Peter Stuyvesant, who some fifty or sixty years ago erected thereon two buildings each twenty-eight feet in width, or exactly one half the width of the entire lot.

Between the two houses he constructed an arched passageway leading from the street to the yards in the rear, of about four feet in width, taken one half from each lot, and upon the crown of the arch, which served as its support, erected the wall in question, in which were- inserted the beams of each edifice. The dividing line of the two premises ran through the centre of this wall.

By subsequent conveyances, lot Ho. 18 became, in 1848, the property of Jacob Surget, the plaintiffs’ landlord; and in 1849 lot Ho. 20 became the property of the defendants.

The first deed in the series was given by Stuyvesant to Fowler in 1791, by which he conveyed the entire premises, Hos. 18 and 20, with all and singular the easements, ways, rights, hereditaments, appurtenances, &c. In 1794 Fowler conveyed the said premises to Smith by the same description; and in 1796 Smith conveyed Ho. 18 separately to Burrowes, describing the same as bounded “ on the west by another house and lot of said Smith, being one moiety or half part of a large lot of ground containing 56 feet in front and rear by 138 feet in length, with the ways, easements, rights, &c., to the lot belonging.” Surget, the plaintiffs’ landlord, purchased of, or derived title through Burrowes.

In 1799 Smith conveyed Ho. 20 to John Atkinson, describing the premises as bounded on the east by a house and lot of ground late the property of said Smith, and is 28 feet in breadth, with the ways, passages, and privileges in and to the same belonging.”

The defendants purchased of, or derived title through Atkinson.

In May,1850, the defendants, intending to erect a new building upon their lot, in the place of the old one, began to take the latter down without at first disturbing the division wall, having previously given to the plaintiffs notice of their intention so to do. They were temporarily delayed by an injunction on the part of the plaintiffs, on the dissolution of which they proceeded with the removal of their building, and took down also the entire division wall with the arch on which it rested, and erected a new wall in its place, and as they allege with the consent of the owner of Ho. 18. Such consent, however, is put in issue by the pleadings, and does not appear to be proved.

The plaintiffs claim that the wall in question was a division wall, and not a party-wall; that it was common to both houses, and supported the roof and timbers of each, and that the arched passage-way was also common to both tenements; that by the conveyance to Burrowes he acquired the fee to the middle of said division wall, and the exclusive property in half the wall, with the easement of support from the residue of the wall, and from so much of the arch as stood on the adjoining lot No. 20, and also from the building, which rights became vested in Surget, the plaintiffs’ landlord, who derived title through Burrowes, and they deny the right of the defendants to take down the entire wall.

The defendants claim that the wall was a party-wall; they deny that the owner of No. 18 was entitled, under the conveyances thereof, to any estate or interest in the premises, or that his building was entitled to any easement upon, or right of support from, said premises No. 20, or from any part thereof; and they say in their answer that, in the taking down of their own building, it was discovered that the said party-wall and the said arch, and the wall on their lot which in part supported the same, were so weak and insecure as to be incapable of standing upright without the support of the other walls and the timbers in the buildings so being taken down by them; and that, in its then position, said party-wall was dangerous to the lives of persons employed in and about the premises, and passing upon the streets in front of the same, and that said party-wall was a nuisance, inflicting great injury upon the said property of the defendants.

The buildings, which were originally dwelling-houses, appear to have been changed into stores in 1836, and a new story then added, at which time wooden posts and a girder were placed beneath the arch to support it, and the entrance was blocked up with brick.

The plaintiffs were lessees of No. 18 for a term of three years, of which one year remained unexpired at the time of the erection of the defendants’ new store.

A good deal of evidence was taken as-to the actual condition of the wall in regard to safety, and specific questions on that point were submitted to the jury, and the result of their finding was that the condition of the arch and party-wall was so dangerous on the first of Hay, 1850, the period immediately preceding its demolition, that a just regard to the safety of life and property rendered their removal necessary, and that, in the exercise of ordinary prudence, it was expedient to remove the same; that, had no change been made, the ‘buildings were not fit or safe for occupation as stores during the year ensuing (the remaining year of the plaintiffs’ term).

They also found as a distinct fact, that the removal by the defendants of that portion of the party-wall (including the arch) which was on their premises would have occasioned the destruction of the whole, and that the same consequence would have followed had the. defendants removed the front and rear walls of their building together with the floors and beams.

Objections were taken b.y the plaintiffs’ counsel generally to the submission of these, questions to the jury,, and to some of them specifically as foreign to, the issues- involved; in the action, but the objections were overruled by the court. The plaintiffs’ counsel proposed that in lieu of the second question which bad been submitted to the jury (viz, whether, if no change had been made, the buildings were fit and safe for occupation as stores, during the ensuing- year), the following- should be. submitted, viz, (i Whether, if both buildings had been undisturbed,, the, division wall would: have been, a sufficient support to Ho. 18 (the plaintiffs’ tenement) for the residue of the plaintiffs’ term, as that store had been occupied during the former part of the term, and whether both buildings, if undisturbed, would have been safe and fit for occupation during the year 1850, with proper precautions, as to-the, business fpr which they were used.”

The court refused to put these questions, and the jury having rendered their-verdict upon the questions submitted to them, the ease was reserved for argument, the judgment directed to be stayed, and the. plaintiffs to apply for such judgment at the general term.

That the questions proposed by the plaintiffs’ counsel to be. submitted to the jury were properly overruled by the judge who tried: the cause, we think, does not admit, of a, doubt.

They embraced in. their scope the right of the defendants to the use and control of the entire building, and if they had been-submitted; and- answered affirmatively, the finding, of the jury could not haye, hqlped the plaintiffs except in the assumption,, which, for, the reasons hereafter assigued. cannot, we think, be supported, that the defendants, the owners of Ko. 20, had no right to disturb their own tenement in any respect during the continuance of the plaintiffs’ lease, if by so doing the safety of the wall would be perilled.

The question moreover involves the assumption, which is equally untenable,'that the defendants’ rights are qualified or limited by the rights of the plaintiffs as lessees in the premises Ko. 18, and are to be construed in reference to the character or nature of the business carried on by them in the premises.

The rights which are in issue are rights pertaining to the freehold only, and are neither enlarged nor limited by any term created therein in respect to the plaintiffs’ lot. If the defendants had a right to take down this wall before the plaintiffs took their lease, it was neither taken away nor curtailed by the creation of a term in Ko. 18, nor by the nature or character of its occupancy, and the plaintiffs, if entitled to any redress for the damages consequent upon the demolition of the wall, must look for it elsewhere than to the defendants.

The plaintiffs claim that their" landlord, Surget, acquired under the conveyances by which he derived his title to the lot and premises, Ko. 18, the exclusive property of the easterly half of the wall in question, and also the easement of support from the residue of said wall, and so much of the said arch as stood upon the lot westerly adjoining Ko. 18, and also from the building on said westerly lot.

Their argument is, that the defendants, as owners of lot Ko. 20, possess no greater rights than Smith (the common source of both titles) possessed after his conveyance of Ko. 18 to Burrowes, and before his conveyance of the other lot to Atkinson; that by his conveyance to Burrowes this right of support passed as an incident necessary to the enjoyment of the grant, and that if Smith could not have used or appropriated the premises Ko, 20, while they remained his own, to the detriment of this right (which the- argument assumes he could not), so neither could his grantees.

The argument assumes, that the right of support passed as an incident to the. right of Burrowes, and, the case is likened to that of the conveyance of a house, with doors and windows opening, upon a vacant lot, also owned by the grantor, and without any reservation in the conveyance of the right to stop the lights, &c., in which it has been held that neither the grantor nor his grantee of the adjoining lot conld, by any erection on such lot, obstruct the plaintiff’s light and air. (12 Mass. 157.) It is also likened to the case of a water privilege, which carries the right of overflowing adjoining premises of the grantor, to the extent necessary to the profitable enjoyment of the privilege purchased, and in the manner in which it existed, and had been used previous to the grant, as a necessary appurtenant to the premises conveyed. (5 Wendell, 523.)

Without discussing the question of how far the principle of these cases is applicable to the one at bar, it is certainly safe to say that the easement claimed, if it exists at all, cannot exist to the extent contended for, that is, to the extent of a right of support from the entire westerly building, Ko. 20. To say that the owner of Ko. 20 is obliged to retain his tenement in its exact condition, however ancient, dilapidated, or useless, merely to furnish a support to the division wall, so long as it suited the caprice of the owner of Ko. 18 to maintain his own premises undisturbed, would be carrying the doctrine of easement to an unreasonable extent, and beyond any known precedent, and finds no support in the language or terms of the conveyances. The utmost that can be claimed is, that the westerly half of the wall itself shall not be removed by the defendants, but shall be left to afford such support to the other half as it is capable of giving, without the aid of the westerly building.

Assuming that, to this extent, the plaintiffs are entitled, what are the rights of the parties if either owner, in the exercise of his right of pulling down or altering his own building, finds that the wall, deprived of its accustomed support from the edifice which he is removing, is incapable of standing by itself, and will inevitably become a ruin ? One half of it stands upon his own ground, and to that extent he is the owner of it in fee, subject, it may be conceded, to the right of support from it in the owner of the other half; but that support, as a matter of fact, ceases the moment he removes his own edifice. Is he to stand still, and from the apprehension of committing a trespass, permit the wall to fall of itself, and become a common ruin to his own and his neighbors’ imminent peril and damage ? It was in this practical view of the subject that the judge submitted the question of damage to the jury, and very properly did so.

How the jury have found as a fact, without qualification, that the removal by the defendants of the front and rear wall of their own building, Ho. 20, with \k& floors and learns, would have occasioned the destruction of the whole wall.

Under such circumstances, can the defendants be said to have committed a trespass by carefully taking it down, instead of permitting it to fall ? We think not:—if it was a trespass, it was a technical one merely ; it was damnum absque injuriú / it was a trespass which a prudent and humane regard for life and property, and the very necessity of the case, required the defendants to commit, if the plaintiffs refused their assent to it, and for which the latter can have no claim for damages.

The same rule would apply if this easement of support in the westerly half of the wall did not exist (which is one of the aspects in which the case is presented to us), and the owner of the easterly half should refuse to unite in taking it down. ‘ The necessity of the case would furnish a law of itself; and if the defendants found that by taking down their own half of the wall, the destruction of the other was inevitable, they would be justified, in such absence of assent from the adjoining owner, in taking down the whole, doing it carefully and with the least possible disturbance of the plaintiff’s occupation, and rebuilding the wall at the earliest practicable moment.

We also think the finding of the jury conclusive upon the case, in the other aspect in which it has been presented to us— that of a prescriptive right in each house to the support of the other. They have found that the condition of the arch and party-wall between the buildings in question was so dangerous, on the 1st of May, 1850 (the period immediately preceding its removal), that a just regard to the safety of life and property rendered their removal necessary.

This finding is broad enough to embrace the idea of a public nuisance, for the maintenance of which there can be no prescriptive right—(Viner’s Ab. Tit. Prescription, E., 9 Wend., 315)—and the public authorities would, on such a state of facts, have been justified in interfering. This is substantially admitted by the plaintiff’s counsel. It is said, however, that the right of the defendants to interfere as abaters of the nuisance, was limited to the point of actual safety, that this eonfined them to the wall above the arch, and that if they had removed that only, the plaintiff’s store, which did not reach higher than the arch itself, would have been undisturbed.

As we have already shewn, the defendant’s rights are not to be measured by the nature or extent of the plaintiff’s occupation, but apart from this Consideration the pleadings show that the plaintiffs were lessees’ of the entire store-, and a part of their alleged damage- arises from the loss of the tenants of the upper lofts.

The question, therefore, cannot be divided, ñor a different rule invoked for one part of the premises from that which is1 applicable' to another. The finding of the jury Covers' the arch-as well as the wall,- and if the defendants had a right to remove •the one, they had also to remove the Other.

We think they had the right, under this finding of the jury, to remove both. (Viner’s Ab., Tit. Nuisance. S. T. W.)

We are, therefore, of opinion that, in either aspect of the plaintiffs’ claim, the finding of the jury is conclusive against a right of recovery in this action, and that the defendants Were justified, in taking down the entire- wall, including the arch on which it rested-, and are, therefore, entitled to judgment, and that the complaint be dismissed. The defendants were bound, in removing the wall, to do it carefully and prudently, and there is no pretence that they were negligent in- this respect. The whole objection is to their right to interfere with it at all.

We do not deem it necessary to consider the case on the hypothesis of the wall being a party-wall, though it would be somewhat difficult in that aspect of it to distinguish it from the case of Campbell v. Mesier (4 J. Ch. 334).

We have looked- into the several exceptions taken to the ruling of the judge on the trial, and are- of opinion that they are not well founded;

Judgment must be-, for the defendants as-- above.

Bosworth, J.

The.plaintiffs’ lessor owned in fee to the- centre of the division wall, so much of it as stood upon lot Ho. 18, and the residue of the wall was the property of-the-defendants.

The two buildings had been converted into stores, and the passage-way blocked up before either of these parties became owners of either of their lots.

The arch which was built to sustain the division wall bad become unable to support it, A girder had been run under the crown of the arch, supported its whole length by locust posts, for the purpose of sustaining the division wait.

The mere fact that the two buildings were originally so constructed that the division wall was supported by an arch, one foot of which was wholly on one lot and the other foot exclusively on the other, did not give to the plaintiffs’ lessor or to the defendants, by force of the conveyances under which they acquired title, an absolute*right to have the division wall of any two buildings that might at any subsequent time he erected upon the lots so supported.

Whether it gave the right to either party,, whenever the decay of the old buildings should render the construction of new ones necessary, to require the one first, rebuilding to construct a division wall equally upon each lot, to he used in common as a party-wall, or gave the one first rebuilding a right to place half of the width of the wall on the adjoining lot, it is unnecessary to decide,

It is conceded that when the defendants rebuilt they built their easterly wall upon the two lots, one half of its width on each, and this wall is used as a party-wall to support the beams of the building on either-lot.

Each party has the beams of the building, that is on his own lot, now supported at one end by the new wall, the centre of which is the dividing line, between the two lots.

Had the defendants a right to remove their own building, and the part of the wall standing on their own lot (on giving notice to the owner and occupants of the other), in a reasonably careful and skilful manner, without being liable to an action for the inevitable incidental inconvenience and loss resulting to the owner- and occupant of the adjoining building by reason of its enjoyment being temporarily less valuable f

The facts as found by the j ury are, that the condition of the arch and party-wall was so. dangerous that a just regard to the safety of life and property rendered their removal necessary. That the buildings were not fit and safe for occupation as stores during the then ensuing year, even if no change had been made; and their condition was such that, in the exercise of ordinary prudence, it was expedient to remove them.

■ Such a state of facts rendered the rebuilding by the defendants a matter of strict right, and the removal of the division wall a matter of duty to those whose personal safety might be endangered by allowing it to stand until it might fall by the pressure it could no longer resist.

The inconvenience of the repair was inevitable, and as small and temporary as the nature of the case admitted.

If the principle is to obtain that such a wall cannot be removed, by the owner of one lot, tcwrebuild, so long as it supports the adjoining building for any use to which for the time being it may be put, there will be substantially an end to all improvements in those parts of the city which have long been covered with buildings. Such a principle,does not' seem to be founded in reason, would be inequitable and injurious in its operation, and presents no considerations recommending it to favor. It %is in direct conflict with the rule, adjudged and applied in Campbell v. Mesier (4 J. Ch. R. 334), and is not supported by any authority which should control the judgment of the court.

I think the facts found by the jury, in connexion with the other undisputed facts of the case, entitle the defendants to a judgment dismissing the complaint.

The Ohief-Justice concurred. Complaint dismissed with costs.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    James B. Brinsmade, Respondent, v. Lewis Hurst, Appellant.
    Under a judgment of foreclosure and sale upon a mortgage given by J. M. to J. B. the mortgaged premises were sold at public auction, and by the terms and conditions of the sale were declared to be “subject to a prior mortgage of $3000 with interest from the 1st of May, 1851, also a mortgage of $'700 and interest from 10th of August, 1850.” The defendant was the real party in interest, conducted the proceedings unto the terms of sale, and purchased the equity of redemption for $100.

      Held, that, by the fair interpretation of the terms of sale, the title of the purchaser was to be subject to the mortgage of §700 (for the foreclosure of which this action was brought) as a prior incumbrance.

      Held, that the defendant, as such purchaser, and by his acts and declarations proved, was estopped from denying the validity of that mortgage and its right to a prior satisfaction.

      Held, that the omission of a reference to that mortgage, in the sheriff’s deed to the defendant, was immaterial, and created no obstacle to the relief sought by the plaintiff.
    To permit a person, who has purchased real estate, declared at .the sale to be subject to an incumbrance of a certain amount, subsequently to dispute, for his own benefit, the validity of the incumbrance, would be, in all cases, to sanction a fraud.
    To admit such a defence, when the sale is made under a mortgage, would operate as a fraud upon the mortgagor or mortgagee, since the price of the property is certain to be diminished by the sum declared to be due upon the prior incumbrance.
    (Before Dube, Campbell, and Slosson, J.J.)
    Feb. 8, 25, 1854.
    Appeal from a judgment at Special Term.
    The complaint charged that on or about the 10th of August, 1850, William McGarvey of the city of New York executed and delivered to John Curry of Troy, in the county of Rensselaer, N. Y., a bond and mortgage to secure the payment in one year of $700 with interest; that the mortgage covered certain premises particularly described in the Seventh Ward of the city of New York, and was duly recorded on the day it bore date, and together with the bond had been duly assigned to the plaintiff for a valuable consideration; that the whole sum secured to be paid thereby, together with interest, was due and unpaid, and that there had been no proceeding at law to recover the same. The complaint further stated, upon information and belief, that McGarvey and his wife had executed and delivered to John Brady of Middletown, Connecticut, a mortgage upon the same premises dated 25th May, 1850, and conditioned to be void on the payment of $400 with interest on the 25th May, 1851, and that the same was properly recorded on the 12th of August, 1850. It was then averred that if the mortgage to Brady was in fact executed before the execution and delivery, or the recording of the mortgage to Curry, yet that he (Curry) had no knowledge or notice of the facts, but took his own mortgage and caused the same to be recorded in good faith and for a valuable consideration. The complaint further showed that in the month of February, 1851, Brady commenced an action in the Supreme Court for the foreclosure of his mortgage, to which McGarvey and his wife and some other persons, but neither Curry nor the plaintiff, were made parties defendant; that, in this action, the usual decreé of foreclosure and sale was made; and that under this decree the sheriff of the city of Hew York duly advertised the mortgaged premises for sale at public auction on the 2d of December, 1851, at the Merchants’ Exchange in the said city; that the said mortgaged premises were sold by the said sheriff, under and pursuant to such decree and notice, and at the time and place in said notice specified therefor; that the terms and conditions upon and according to which the said sale was made were that the said mortgaged premises were subject, and were sold subject, to a certain prior mortgage thereupon, for the sum of three thousand dollars, together with interest from the first day of May, A. D. 1850; and also to a certain other mortgage thereupon, for the sum of seven hundred dollars, with interest thereon from the tenth day of August, A. D. 1850; that the said premises were sold subject to the said two mortgages last mentioned, and that the same were struck off to, and purchased by, the defendant, Lewis Hurst, he being the highest bidder therefor; that the mortgage for $3000, above mentioned, was given by McGarvey and his wife to Isaac T. Ludlam, that it was dated on the 1st of May, 1850, and recorded on the 7th of the same month, and was conditioned to be void on the payment of $3000 with interest half yearly, on the 1st of May, 1855; and that the mortgage for $700, above mentioned, is that which was- given by McGarvey to Curry, and which was held by plaintiff as assignee. The complaint averred that the sheriff had executed and delivered a deed of the mortgaged premises to the defendant, who had since been, and then was, in the possession thereof,, and after other averments, which it is not deemed necessary to notice, prayed for the usual judgment of foreclosure and sale.
    The defendant, in his answer, denied that the mortgage to Curry was given to him or assigned by him to the plaintiff in good faith and for a valuable consideration, and- insisted that the same were fraudulent and void as made with an intent to defeat the creditors of McGarvey. He denied that the premises were subject to the mortgage to Curry as a prior incumbrance or that they were rendered so subject by the terms of the sale, and he denied that he had ever agreed to pay to the plaintiff the amount due upon the mortgage assigned, as was averred in the complaint.
    Upon these pleadings the cause was tried before Mr. Justice Campbell at a Special Term in June, 1853.
    Upon the trial the counsel for the plaintiff, after reading in evidence the bond and mortgage to Curry, which it was admitted were correctly set forth in the complaint, read in evidence the following deposition of Curry.

      City and County of New YorJc, ss. :

    Deposition of John Curry, a witness for the plaintiff in this action, taken by consent, upon the tenth day of May, A.D. 1853, at the city of Hew York. The said witness being duly sworn, and being examined by Mr. Birdseye, of counsel for the plaintiff (Mr. Peabody, attending as counsel for the defendant), doth depose and say :—
    My name is John Curry; I reside in Greenbush, in the county of Rensselaer; I am a clergyman; have been so for more than twenty years; I am acquainted with William McGarvey, lately of the city of Hew York, and now of California; have known him more than ten years ; he gave me a bond and mortgage in 1850 for $700 ; it should have been for $800 ; the consideration of the bond and mortgage was this; first, I gave him three hundred dollars by a draft on one of the banks in Hew York; and secondly, I went collateral security with him to Rev. Mr. John Brady, of Hartford, Conn., for $500, which was advanced by Mr. Brady to Mr. McGarvey, as I understood from them; I consider myself liable to pay the debt to Mr. Brady of $500 whenever he pushes me for it; the whole of the $800 was due to me on the tenth day of August, 1850; and I owed $500 of it to Rev. Mr. Brady.
    At the time of the date of the mortgage to me I did not know that Rev. John Brady, jr., of Middletown, Conn., had any mortgage on these premises; I knew nothing about any mortgage except one for $3,000 or $3,500, which I suppose was the first one on the premises.'
    The mortgage was received by me in good faith, and for a sum less by one hundred dollars than what he justly owed me, as I have explained above.
    Prior to the date of the mortgage it had, of course, been a part of the understanding that he should secure me. (This answer is taken subject to objection.) The note I considered a security at the time; that note was cancelled by the giving of the bond and mortgage, and I subsequently gave it up to him.
    The bond and mortgage were delivered to me in Hew York, I think; I then resided in Troy, H. Y.
    Cross-examined by G. A. Peabody, for defendant: McGarvey had the $300 some time in the month of May, 1850, what time I don’t recollect; I don’t exactly know the date when I became security for him to Mr. Brady, but it was the second time he applied to me for money, when I told him I had not the money, and I wrote to Mr. Brady, saying, I was security with McGarvey for what money he might advance ; whether it was $500 I wrote I don’t know, but it was for what he would advance him. And I told him then if he did not get it of him to go to apply to his uncle, John Brady, in Hartford ; I took the mortgage for $700 instead of $800, the amount he owed me, because I left it with him to make the mortgage, and he made it for $700 ; I understood from Mrs. McGarvey that it was a mistake of the lawyer in drawing it out; I first discovered this mistake at the time I got the mortgage, I suppose; I don’t know the date ; I don’t know when I got it; it was some time in the year 1850.
    It was after it was recorded that I got it, because he got all done himself of that; he got the recording all done himself; I can’t say how short or how long after the date of the mortgage ; I cannot tell how soon after the mortgage was made I knew of its being made; I did not know of it until I got the mortgage; I gave up the $800, or note I have spoken of, to Mr. McGarvey; I think some time last fall; the fall of 1852; until that time I retained it; in fact, I did not know, I forgot that I had it at all; the $500 to Mr. Brady I have not yet paid ; it stands as it did originally. The Mr. John Brady to whom I addressed the letter for McGarvey respecting the $500 >vas Mr. John Brady, of Middletown, a Catholic priest of that place. The Mr. John Brady, of whom as I understood McGarvey obtained the $500, is Mr. John Brady, of Hartford, uncle of Mr. John Brady, jr., to whom my letter was addressed ; he did not get any money from Mr. John Brady, jr., on the strength of my letter; it was from the other Mr. John Brady that he got the money; I don’t know how soon after he got this money I knew of his having gotten it; it was close on the date of the note, however; either McGarvey, or his wife, or both, first told me of it; I suppose that Mr. Brady holds my letter, and that is the only security he has from me ; I considered the note as dead after taking the bond and mortgage, aud this is what I meant when I said it was cancelled. Both the Messrs. Brady and myself are Catholic priests, all of us ; I think I received both of them, the bond and the mortgage, at the same time, and I think it was in the city of New York where I received them; I left the making and execution of them entirely to McGarvey ; I did not authorize any one to attend it for me.
    On a farther direct examination the witness says: I don’t know that the letter addressed to Mr. Brady, of Middletown, contained anything about Mr. Brady, of Hartford; that was sent by word of mouth, I think; what I sent by word of mouth was, that if Mr. Brady, of Middletown, could not let McGarvey have the money, then he should go to Mr. Brady, of Hartford, and give him the letter, to hold it as security, and that I would be security to him for what he should advance; I meant .that whichever of them advanced the money, and held the letter, to that man I was security. I don’t know that I told him by word of mouth that I would be security to Mr. Brady, of Hartford, though I probably may have told him so; I cannot recollect that I did; I can’t recollect the precise words of it; I saw Mr. Brady, of Hartford, about a fortnight ago ; I told him that McGarvey was in California, and likely to do well, and he did not press me for the payment of the debt; we have always expected that McGarvey would be able to pay us both, and consequently he did not distress me for the money. The note was not given up when the mortgage was delivered to me first, because the note was not about me; I think 1 received the bond and mortgage in Hew York, and the note was in Troy; and secondly, I did not think anything about giving up the note; at one time I had forgotten that I had got a note; at first, after a long interval, I forgot I had had the note ; and then whether it was given up or not. The note I got from McGarvey was for $800; I never had any other note from him; it was given for the $300 I sent him, and the $500 I went security for to Mr. Brady, as I have explained ; this note was taken close by the time of my going security; within a week or ten days, I think; I have no recollection, but it is probable that it was within a week or ten days after the money was advanced I knew of its being advanced on that security.
    Ee-cross-examined : I gave up that bond and mortgage to Mrs. McGarvey when she complained of her circumstances, and that if she had the means she could start the millinery business; I gave it up to her to enable her to get money to start the millinery business; I have never received any consideration for it; I intended the delivery to her as for her own and Mr. McGarvey’s benefit, for the good of the family; I don’t know that I intended it for his particular benefit, but for that of his and her family; I have never sold that bond and mortgage to any person ; I still desire that McGarvey and his family should have any benefit that may be derived from it. (The last answer taken subj ect to obj ection by plaintiff.) I heard some time ago from McGarvey that he was doing pretty fairly; I understood Mrs. and Mr. McGarvey sold the mortgage to Mr, Brinsmade ; I gave an acquittal of it, I think, to Mr. Brinsmade or Mr. McGarvey; I don’t know which; I think I made it out in his name; Mr. Brinsmade, the plaintiff’s name. I hope still that McGarvey will be able to and will pay me; if he is ever able to he probably will pay all of us; I believe that he is honest; I have every reason to think so ; of course I consider him bound in conscience to pay me that $800, if he is ever able ; and I have confidence in him that lie will, if he is ever able; I consider the $800 a debt due from him to me, but if he pays Mr. Brady, of course, that will answer my purpose just as well, so far as the $500 are concerned, and the $300 he owes me anyway; and I have the same expectation as to the $300 that I have to the $500, that he will pay me if he is ever able; I have mentioned this once or twice before. (All since the last objection is taken subject to objection by the plaintiff.) I am not positive that I was ever introduced to Hr. Brinsmade until to-day; I may have seen him before, but I never had any intercourse with him until, to-day; I knew him by sight when Hr. HcGarvey lived in his house ; this was a couple of years ago, I think.
    On a further direct examination, he says : I told Hrs. HcGarvey that I would give up the mortgage to her for her to try to sell it, or raise money on it; I meant that she herself should try to sell the mortgage, not I; of course, if she got any one to buy the mortgage, I was to give an acquittal to the one that bought it; I mean by acquittal, that if she got any one to buy the mortgage, 1 was to give up to that person all my right and title to the mortgage. Did you intend that Hrs. HcGarvey should sell the mortgage, and make use of the money obtained upon the sale of it for her benefit, as a loan from you in starting the millinery business ? (Objected to, and answered subject to objection.)
    A. I intended she should try to get a purchaser and sell the mortgage, and if she found any one to give her the money for it, I was to give up to that person all the right and title I had to the bond and mortgage; she was to have the use of the money to start the millinery business; and I told her if she was ever able to pay me to do so, and, if not, then to let it go by the board, or words tantamount to that.
    Q. Is this the only way in which you ever gave up the mortgage to her? (Objected to.)
    A. She got the purchaser, and I gave up all my right and title to him; that purchaser was Hr. Brinsmade, the plaintiff ; and I gave him an acquittal, or transfer of the mortgage.
    Q. How was the giving of the mortgage to be of benefit to her?
    A. Of course by getting the money and making use of it. The transfer to the plaintiff was a printed blank filled up with writing, and signed by me.
    Q. When you say you never sold the mortgage to any person, what do you mean? (Objected to.)

      A. I mean that I never sold it individually, or except through her agency.
    Q. 'When you say you desire that McGarvey and his family should have any benefit that may be derived from the mortgage, what do you mean ? do you mean that he or they have any interest in the termination of this suit? (Objected to.)
    A. They have no interest in the termination of this suit that I know of; I mean that they should have the whole amount of that mortgage; if they have had it once, I don’t wish they should have it again ; the whole thing may be summed up in three words, I gave Mrs. McGarvey the bond and mortgage, and told her to sell them and use the money, and if she could ever pay me to do so ; if not, to let it go.
    John Curry.
    Sworn before me, this 12th day of May, 1853.
    H. S. McCall, Commissioner of Deeds.

    Counsel for plaintiff then read the assignment by Curry to plaintiff, of the mortgage made by McGarvey, which is in the usual form, and bears date on the eighth day of April, 1851, and was acknowledged in Bensselaer county, on the 14th day of April, 1851, and was recorded in the office of the Register of the City and County of Hew York, on the 20th day of September, 1851, in Liber of Mortgages, 323, page 8.
    Plaintiff then called, as a witness, Elliott T. Farr, who, being sworn, testified, that he lived in the city of Hew York.
    (The following was objected to, and taken subject to objection, and exception taken by defendant.)
    That in December, 1852, he called on defendant before the sale on the Brady mortgage; he thought it was on the day before, or on the morning of the day of sale; asked Hurst the terms or conditions of the sale. He said Brinsmade need not trouble himself about it nor attend the sale; I asked him if the property would be sold subject to the mortgage held by Brinsmade; he said it would be ; I called on behalf of Brinsmade ; I told him so.
    Being cross-examined he said : I spoke of the mortgage assigned to Brinsmade-; I don’t know that Hurst knew anything about the mortgage to Brinsmade ; I think I described it as a mortgage Mr. Brinsmade had an interest in ; I don’t recollect in what language this was referred to; I knew the name of Curry, the mortgagee ; perhaps I might have described it as a mortgage from McGarvey to Curry, but I don’t recollect it; at any rate I supposed Hurst knew from the- answer he made me; I have no knowledge, further than from this conversation, that Hurst knew of Brinsmade having an interest in it; nothing more passed than I have told my object in calling upon Hurst was to ascertain the conditions of the sale. .

      William H. Stodgill was then called by plaintiff, who, being sworn, said: I officiated as agent for the sheriff at the sale under the foreclosure of the mortgage to Brady ; the sheriff was also present at the sale. (This evidence objected to, and admitted by the judge, subject to objection, and exception taken by defendant.) The terms of sale were drawn by me; here are the terms. (Objected to by defendant, admitted by judge, and exception taken by defendant.)
    The terms and conditions of the sale were then read, the 7th paragraph of which is alone material, and is as follows:
    7. Subject to a prior mortgage for $3,000, with interest, from May 1st, 1851; also a mortgage for $700 and $370 interest from 10th August, 1850.
    Witness then said that the clause stating that the sale was subject to a prior mortgage for $3,000, and also a mortgage for $700, &c.,- was inserted by direction of Hurst, the defendant in this suit, who was the attorney for the plaintiff in that foreclosure suit; I saw the plaintiff in this suit at the sale ; there was only one bid on the premises; the price bid was $100 ; it was bid by Hurst, the defendant herein ; the sale was on a decree of foreclosure of the Brady mortgage. These terms of sale were proclaimed and read at the sale by the auctioneer; Brinsmade was present at the sale.

      E. L. Brinsmade was then called for plaintiff, and being sworn, testified : I am a son of the plaintiff; am an auctioneer; in December, 1852, my office was at No. 8 Wall street, with Henry H. Leeds; defendant’s office was at No. 6 or 8 Wall street; he called on me in December, 1851, or January, 1852 ; it was after the sale. (This evidence was objected to by defendant and admitted by judge, subject to objection, and exception taken by defendant.) He called on me in reference to the mortgage held by the plaintiff; he said he had purchased the house in Cherry street, on which plaintiff had mortgage for $700; he said his object in calling was to see if plaintiff would be willing to have his mortgage renewed; I told him he was not, that he wanted his money: he then asked if I thought he would wait till the latter part of the next month ; he said that if he would, he would then have the money, and would settle the mortgage ; 1 told him I did not know, he had better see Mr. Brinsmade.
    I didn’t think he would wait; this is all I remember; I. don’t think I saw defendant again on this subject; I knew before this conversation with Hurst of the sale on the mortgage.
    Being cross-examined, he said: I did not attend the sale ; I saw the sale advertised; I don’t recollect the language Hurst used, but I have stated the substance; I understood that he wished to give a new mortgage, to renew the mortgage held by Brinsmade.
    It was here admitted that this suit was commenced June, 1852.
    Plaintiff here rested. Counsel for the defendant then moved that the complaint be dismissed, which motion was denied, and counsel for defence excepted.
    Defendant then offered and read in evidence a list of judgments recovered against the mortgagor, William McGarvey; and also read in evidence the deed, executed by the sheriff to the defendant, which was in the usual form.
    The judge decided that the plaintiff was entitled to the relief demanded in his complaint, upon the ground that the defendant having bought, according to the terms of sale subject to the mortgage to Curry, held by the plaintiff, was estopped to deny it validity or priority over that under which the sale was had.
    Judgment for the plaintiff, with costs, was accordingly given, fixing the- amount due on the mortgage, at $839 39, and the costs at $107 13.
    The cause was now heard upon the appeal from this judgment.

      C. A. Peabody, for the defendant, appellant, made and argued the following points.
    1. The terms of the Sheriff’s sale, under the decree of foreclosure of Brady’s mortgage, determine nothing concerning the rights of plaintiff by virtue of his mortgage. That was a sale by the Sheriff, pursuant to a decree of the court, and transferred to the purchaser only the rights of the parties to that suit, whatever they were, and did not alter or in any way affect the rights of others, not parties thereto, having liens on the premises. (Vanderkemp v. Shelton, 11 Paige, 28.) 1. Plaintiff was not a party to that suit. And whether his mortgage was prior or subsequent to that to Brady, it remained after the sale as it was before, unaltered by it, whatever the terms of the sale may have been. 2. The defendant herein, by his purchase under the decree, acquired the rights of the holder of that mortgage, whatever they were: and whether prior or subject to the mortgage held by plaintiff, discharged of all the rights and equity of redemption of the defendants in that suit, their rights having been foreclosed therein. (Ya/nderkemp v. Shelton, 11 Paige, 28.) 3. The mere fact, that by the terms of the Sheriff’s sale, the premises were said to be subject to the mortgage held by plaintiff, did not, and could not, change the position of that lien, and make it prior, if it would otherwise be subsequent: could not make the Brady mortgage void, as against Curry’s, if it was not so previously for other reasons. 4. To hold that it'did this, would be to hold that the Sheriff had power to, and did charge the property with the payment of plaintiff’s mortgage, in a manner different from that in which it was charged by the mortgagor; a proposition which will scarcely find an advocate. 5. The object of that notice was to inform purchasers that such a lien existed, or was claimed, and for this purpose it was necessary. The priority or validity of that lien was not determined or even asserted by it; but purchasers thus notified were put upon inquiry, and could ascertain for themselves whether it were valid or not, and if valid, whether prior to that of defendant. It was not stated to be prior in the terms of sale, but the purchaser was to see and examine for himself. Thus forewarned, “ cmeat ernptor.” If it was prior, its existence was of importance to the purchaser at that sale, and if subsequent, it was important, for the holder of it could redeem the premises from the purchaser. In either case its existence was of importance to a purchaser at that sale. This being the case, the question of priority is to be determined by a reference to the relative position of the mortgages anterior to the foreclosure of that to Brady. The cases which establish the doctrine, that a party taking property, expressly subject to the payment of a prior incumbrance, cannot repudiate or deny the validity of that incumbrance, all proceed on the idea that the parties so contract—that the grantor in such a case so granted—that he conveyed the premises in that state or condition, subject to that charge—'that grantee took them only in that condition; in short, that he conveyed only the equity of redemption—that he conveyéd only the estate or property, which he had therein after deducting therefrom the payment of the prior incumbrance, together with the right, by paying that, to relieve the property from it, and having paid it, to hold the premises discharged of that lien; that he waived his right to defend, and put funds into the hands of the purchaser, with which to pay off the incumbrance. This case would be' analogous, if the mortgage to Brady had been later in date than that to Curry, and expressly subject to it, neither of which is pretended. (Morris v. Floyd, 5 Barbour, 130, 138.) Cases are here cited and reviewed. (Green v. Kemp, 13 Mass. 575.) Here the Court called it a mortgage of the equity of redemption. (Jumel v. Jumel, 7 Paige, 591; Wells v. Chapman, 13 Barbour, 564; Eagle Fire Ins. Co. v. Lent, 6 Paige, 638.)
    H. The mortgage to Brady under which defendant holds, bears date the 25th May, 1850. The mortgage to Curry held by plaintiff, bears date the 10th August, 1850. The Brady mortgage was recorded August 12th, 1850. The one to Curry held by plaintiff, was recorded Aug. 10th, 1850. 1. The Brady mortgage is therefore prior to that of Curry in its creation,, and must remain so, unless the priority was lost under the operation of the recording statute. 2. The mortgage to Brady, having been executed and delivered first, could only lose its priority in favor of a “ subsequent purchaser in good faith and for a valuable consideration,” whose deed should be first recorded. (1 Rev. Stat. p. 746, sec. 1, 3d ed.) To be such a purchaser Gurry must have parted with value, or relinquished security for a pre-existing debt, before he had notice of the prior mortgage. Taking a mortgage for a prior debt, is not sufficient. (Dickinson v. Tillinghast, 4 Paige, 215 ; Wyckoff v. Remsen, 11 Paige, 564.) 3. Curry was not a subsequent purchaser in good faith, for a valuable consideration, within the meaning of the statute. (1 Rev. Stat. 746, § 1, 3d ed.) His testimony shows, that he parted with no value on the faith of it, but at best received it as security for a pre-existing debt, and a liability as surety for McGarvey; parting with no security for it. Such a mortgage is not within the statute. To be such a purchaser, he must have parted with value or relinquished security, for a pre-existing debt, before he had notice of the prior equity of Brady’s mortgage. (Dickinson v. Tillinghast, 4 Paige, 215; Wyckoff v. Remsen, 11 Paige, 564; Jackson v. Campbell, 19 Johns. Rep. 282, 283; Churchill v. Green, 1 Ch. Cases, 35, 36.) 4. Moreover, plaintiff is affected with notice of the prior equity of Brady’s mortgage. 1. Curry had actual notice. (See Curry’s deposition.) He knew of a prior incumbrance for $3,500 which is the amount of Ludlam’s and Brady’s together, and which is all there was, admitting the priority of Brady’s mortgage; he thought the amount was in one mortgage instead of two, but that makes no difference. 2. Brady’s mortgage was recorded prior to the purchase by plaintiff, and plaintiff therefore had notice of it from the record when he bought. The assignment by Curry to him bears date 8th April, 1851, and is recorded 20th September, 1851. The mortgage to Brady was recorded 12th Aug., 1850, bears date 25th May, 1850. 3. The mortgage to Brady, under which defendant holds, was recorded 12th Aug., 1850, prior to the date of plaintiff’s purchase, and long before the registration of his title. Plaintiff took his mortgage with full notice by the record of the prior mortgage to Brady. (Fort v. Burch, 5 Denio, 187; Jackson v. Post, 15 Wend. 588 ; Van Rensselaer v. Clark, 17 Wend. 25.) 4. Defendant by his purchase acquired the rights of at least one judgment creditor, whose lien was confessedly prior to that of plaintiff.

      For instance, Wintersteins, whose judgment was docketed June 24,1850, anterior to the mortgage of plaintiff, though after the execution of Brady’s. ( Vanderkemp v. Shelton, 11 Paige, 28.) To enable plaintiff to succeed, the rights under this judgment unquestionably prior to plaintiff’s mortgage must be overridden.
    HI. The proof shows plaintiff’s mortgage to have been executed and placed on record by McGarvey in failing circumstances, without the knowledge of Curry, under circumstances which impeach its validity, as to creditors, and as to them, it should be declared fraudulent and void.
    IY. But waiving the fraud in its creation, it was only capable of being enforced to the extent of $300; to this extent it was given for a prior debt. 1. As to the other $400 it was only given as security against loss by reason of Curry’s having become surety for McGarvey to John Brady; but Curry’s testimony fails to show that any liablity was incurred by him as surety, and shows at most only a fancied assumption of one. As to that part, the mortgage to Curry was absolutely void. ■ 2. But if there was a liability incurred by Curry, his surety-ship had not resulted in loss at the time, and has not yet, and this part of it, therefore, cannot now be collected.
    Y. Brinsmade takes it subject to all the equities to which it was liable in the hands of Curry, and can have no greater or better rights under it, than he had. (Ellis v. Messervie, 11 Paige, 467.)
    YI. The complaint should be dismissed because of the nonjoinder of defendant’s wife, and also all the judgment creditors, subsequent to the mortgage to Curry, as party defendants. They are necessary parties, in order to a complete determinación and settlement of the questions involved in this action. (Amended Code—Voorhies Ed.—sec. 188; Denton v. Nanny, 8 Barb. S. C. R. 618.)

      C. P. Kirkland, for the plaintiff, contended that the judgment ought to be affirmed upon the following grounds.
    I. The proof establishes that the mortgage to Curry was founded on valuable consideration, and was given to secure a just and bond fide demand. It was given pursuant to. the agreement made contemporaneously with the loan; and so far as is necessary for the respondent’s protection is to be deemed as then given.
    II. The delivery of this mortgage was perfect and consummated when it was left for record: and at that time Curry had no knowledge or notice whatever of the Brady mortgage. (Rathbun v. Rathbun, 6 Barb. 98; Elsey v. Metcalf, 1 Den. 323; McCrea v. Dunlap, 1 John. Ca. 114; Church v. Gilman, 15 Wend. 656 ; Jackson v. Phipp, 12 J. R. 421.)
    III. Under these circumstances, the Curry mortgage had preference, under the recording acts, to the Brady mortgage. (2 R. S. 40, §§ 1, 44, 3d ed.; 1 R. S. 756, § 1, 762, § 38, 1st ed.)
    IY. But irrespective of the preference by being first recorded, the Curry mortgage must be paid by the appellant or be held to be a prior and subsisting lien on the premises, because the appellant purchased, expressly subject to it, and in this mode for all practical purposes discharged that amount of the purchase price. He, the appellant, conducted the whole proceedings on the Brady foreclosure; was the party really in interest; admitted Curry’s priority by not making him a party; in his own hand inserted in the conditions of sale that the purchase was subject to this mortgage; and bought expressly subject to this mortgage. All this is substantially admitted in the answer, and whatever is not thus admitted is proved. (Morris v. Floyd, 5 Barb. 130,138 ; Green v. Kemp, 13 Mass. 515; Dumel v. Dumel, 7 Paige, 591; Eagle Fire Co. v. Lent, 6 Paige, 635; Welles v. Chapman, 13 Barb. 561, 564.)
    Y. The appellant before the sale expressly informed the respondent that the sale was to be subject to respondent’s mortgage, and that he (respondent) need not trouble himself about it nor attend the sale. Itewould be a gross fraud on the respondent to permit the appellant after all this to insist, that he did not purchase subject to respondent’s mortgage.
    YI. The appellant expressly promised the respondent to pay this mortgage; and this promise was founded on good consideration.
    YII. The respondent is, therefore, entitled to a decree for payment of the debt and. costs; or for foreclosure, sale, &c.

      YIH. The most that the appellant can ask is to be subrogated to respondent’s rights. But he has no claim to this; for the amount of this mortgage has for all practical purposes been paid to the appellant by its deduction from his purchase price. He is, therefore, bound to pay the respondent, and is not entitled to collect the amount of McGlarvey when thus paid. (Cherry v. Monro, 2 Barb. Ch. 619.)
    IX. The judgment at special term should be affirmed with costs.
   By the Court. Duer, J.

We decline to consider the objections that have been raised to the validity of the plaintiff’s mortgage, or to his right to claim its prior satisfaction, since we entirely agree with the Judge at Special Term, that they are objections which this defendant is not at liberty to urge.'

The terms on which he purchased the property, and his own acts and declarations in relation to it, have created an estoppel from which, without a plain violation of well settled rules of equity, he cannot be discharged.

By the terms of sale the mortgaged premises, when purchased by the defendant, were declared to be “subject to a prior mortgage of $3000 with interest, from the 1st of May, 1851; also a mortgage for $700 and interest, from 10th of August, 1850this second mortgage being that which is now in suit. These words were inserted by the direction of the defendant, and, in our judgment, they reasonably admit of but one interpretation. They were a notice to every person, desiring to purchase, that it was an equity of redemption only that was to be sold, and that both the mortgages were existing encumbrances which it would be necessary to satisfy in order to complete the title. This is the meaning which the words naturally and immediately suggest, nor can we at all doubt that it was in this sense that the defendant, when he caused the words to be inserted, meant that they should be understood by those who might attend the sale; and it is, therefore, by the meaning thus conveyed, that he, emphatically, is bound. If believing that the words would thus be understood by other bidders, he meant to give them a different and more favorable interpretation in case he should become the purchaser himself, he was guilty of an intentional fraud—an intention which we certainly shall not impute to him.

We, therefore, with no hesitation, reject the interpretation that upon the argument was attempted to be given to the words “ also a mortgage of $700,” &c., namely, that they merely declare the fact that this mortgage existed, not that the premises sold would be liable to its payment. The word “ also ” clearly shows th§t the word “ subject,” in the beginning of the clause, was meant to apply to the second as well as to the first mortgage, and the omission of the word prior ” we regard as immaterial. It was doubtless omitted because the second mortgage, although, as first recorded it was a prior lien, was not prior in date to that under which the sale was made.

It was not denied by the able counsellor the defendant that if the clause in question had been inserted in the sheriff’s deed, it must have received the interpretation that we have stated, nor that, if thus inserted, it would have barred the defence that has been relied on; but we are clearly of opinion that we are bound to give the same construction to the terms of sale that must have been given to the deed, and that the estoppel thus created is as absolute in the one case as it would have been in the other. If the words were proper to be inserted in the deed, the defendant, the attorney who conducted the proceeding and dictated the terms of sale, was bound to insert them, and would never be permitted, as a purchaser, to take advantage of the omission. Were it necessary, it would be our duty as a court of equity to order the deed to be reformed; but no such necessity exists, since parole evidence in a case like the present is always admissible to show what were the terms of sale and the true nature of the contract, when its admission is necessary to prevent a fraud; and but a little reflection is necessary to convince us, that to permit a person who has purchased real estate, declared at the time to be subject to an encumbrance of a certain amount, subsequently to dispute, for his own benefit, the validity of the encumbrance, would be, in all cases, to sanction a fraud. When the sale is made under a mortgage it must always operate as a fraud upon the mortgagor or mortgagee, since the price of the property is certain to he diminished by the whole sum declared to be due upon the prior encumbrance.

Regarding the case as a very plain one, we have not deemed it necessary to support our views by a reference to adjudged cases, but, in addition to the cases cited by the counsel for the plaintiff, we may refer to the observations of Hr. Justice HcCoun in a recent case in the Court gf Appeals (if not to the actual jndgment of the court, which perhaps was on a different ground) as an authority, which, considering the experience as an equity lawyer of that learned judge, is entitled to far more than ordinary weight. (Rawson v. Lampman, 1 Seld. 462.) The objection as to parties seems not to have been taken at special term, and -was not much pressed on the argument before us,—it is not tenable. HcGarvey and his wife are barred by the judgment in the former action, and judgment creditors are, in no case, necessary parties. If the defendant has succeeded to the rights of any of the judgment creditors, his rights will not be affected by the affirmance of this judgment.

The judgment at Special Term is affirmed with costs.