author:
      Rüggles, J.
      Jewett, Ch. J.

text:
    Taylor vs. Morris.
    fi, testator, by his last will and testament, appointed three persons his executors, and authorized them, or the survivor of them, to sell and convey any part of his real estate, “ in case they should find it proper or most fit in their opinion’’ to sell the same for the purpose of paying his debts. Two of the executors neglected to qualify, and never acted as such. The other executor duly qualified, and took out letters testamentary in his own name only, and subsequently sold and conveyed a portion of the testator’s real estate for the purpose specified in the will; held, that the power contained in the will was well executed, and that the conveyance was valid.
    It seems, that the statute, (2 R. S. 109, § 55,) which provides, that, where real estate is devised to executors to be sold by them, or is ordered by any last will to be sold by them, and any of the executors neglect or refuse to qualify and act as such, the sale may be made by the executor or executors who take upon themselves the execution of the will, applies as well to discretionary, as to peremptory powers of sale.
    Ejectment, brought by Andrew 0. Morris against Robert L. Taylor, in the New-Yorlc common pleas, for an undivided fourteenth of a lot of land in that city. On the trial in the common pleas the case was this: Andrew Morris, the grandfather of the plaintiff below, died in 1828 seized in fee of the whole of the premises in question, having first made and published, in due form, his last will and testament, as follows :
    “ I Andrew Morris, of the city of New-York, do make this my last will and testament, revoking any I may have heretofore made. I direct my executrix and executors, hereinafter named, to pay my just debts out of my estate. I give my wife Ellinor all the silver plate and household furniture of every kind and description that I may be possessed of, together with one third of my personal property, leaving also to her her right of dower in my real estate. I give one half of the remainder of my estate, real and personal, to my daughter Margaret E. Willcocks, the wife of Lewis Willcocks, and to her heirs and assigns. And I give the other half of the remainder of my estate, real and personal, to the children of my son Thomas A. Morris, whom he now has or hereafter may have, to be divided equally among them. I hereby appoint my wife Ellinor my executrix, and my son Thomas A. Morris, and my son-in-law Lewis Willcocks, to be executors of this will. And I do hereby authorize them, or the survivor of them, to sell any part of my real estate, and give a deed or deeds for the same, in case they shall find it proper or most fit, in their opinion, to sell the same for the purpose of paying my debts. And I hereby appoint my said son Thomas, guardian of his children during their minority, and in case he should at any time consider it best and proper for their interest to sell their part of my real estate, then I authorize him to sell the same, or any part of it, and give a deed or deeds for any part he may sell, and put the money arising therefrom at interest, and appropriate such interest, or any income of this devise, for the education, benefit and bringing up of his said children. In testimony," &c.
    The plaintiff was one of seven children which Thomas A. Morris had at the death of the testator, and claimed an undivided fourteenth of the premises under the will. The defendant was in possession at the commencement of the suit, and claimed title under a sale and conveyance of the premises made by Lewis Willcocks, one of the executors named in the will. The will was duly proved as a will of real estate before the surrogate of the city and county of New-York, in March, 1833, and in July, 1834, the said surrogate granted letters testámentary to the said Lewis Willcocks. Ellinor Morris, the executrix, and Thomas A. Morris, the other executor, were not named in the letters, and never appeared, qualified, or acted as executrix and executor; but no formal steps were ever taken to procure their renunciation,
    On the 17th of September, 1834, the said Lewis Willcocks, as sole acting and qualified executor, sold and conveyed' the premises to Francis Salmon, who afterwards conveyed to the defendant. Ellinor Morris joined in the deed to Salmon for the purpose merely of releasing her right of dower in the premises, describing herself in the deed as the widow of Andrew Morris, but not as executrix. The deed recited, among other thingá, that she and Thomas A. Morris had declined to take upon themselves the execution of the will. It was admitted, on the trial, that the defendant’s title.was good, provided Lewis Will-cocks had power under the will to sell and convey the real estate of the testator, without the concurrence of Thomas A. Morris, the other executor.
    Upon these facts, the court of common pleas ruled, that under the will it was necessary that all the executors named should join in the conveyance in order to render it valid, and that as Thomas A. Morris had not joined in the conveyance to Salmon, the defendant had failed to make out a title. A verdict was accordingly taken for the-plaintiff, on which.judgment was rendered, and the supreme court on error affirmed such judgment. The defendant below brings error to this court.

      Frederick R. Sherman, for plaintiff in error.
    The concurrence of Thomas A. Morris, the other executor, was not necessary to give validity to the deed. By statute, (2 R. S. 71, § 15,) every person named in a will as executor, and not named as such in the letters testamentary, shall be deemed superseded thereby, and shall have no power or authority whatever as executor. The mere will itself, therefore, does not in this state, as in England, make a person executor. He must appear and qualify, by taking the oath of office, and by taking out letters testamentary. A refusal or neglect to comply with these requisites, is, in effect, the same as a renunciation by record, of the trust. Thomas A. Morris and Ellinor Morris, not having complied with these requisites, are therefore to be considered as blotted out of the will, and this leaves Lewis Willcocks, in effect, the surviving executor. (Roseboom v. Mosher, 2 Denio, 63; Sharp v. Pratt, 15 Wend. 610; Zeback's Lessee v. Smith, 3 Bin. 69.)
    The power in question was well executed under the revised statutes, (2 R. S. 109, § 55,) which declares, that when real estate is devised to executors to be sold, or where it is ordered to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of the will, then the sale, made by the executor who does take upon himself the execu tion of the will, shall be valid, as if all had joined. (Roseboom v. Mosher, 2 Denio, 63 ; Franklin v. Osgood, 14 John. 554; Sharp v. Pratt, 15 Wend. 610; Bunner & Mannings, executors, v. Storm, 1 Sand. Ch. Rep. 357; Ogden v. Smith, 2 Paige, 198; Hertell v. Van Buren, 4 Hill, 494; Zeback's Lessee v. Smith, 3 Bin. 69 ; 3 McCord's Rep. (S. C.) 29; 1 Dev. & Batt. 389; 3 Munf. 345, 347; 6 Rand. 594; 1 Hammond, 232.)
    The executors in the will in question take as executors virtute officii, and not nominatim, as individuals. They are appointed to sell by their official description, and are to apply the produce of the sale officially; that is, to the payment of the testator’s debts. The payment of debts is strictly an executorial duty, and the power to sell for that purpose is highly favored. (Sug. on Pow. 144; Pow. on Dev. 240; Witherall v. Gartham, 6 T. R. 396 ; Jenk. Cent. p. 44, case 83.)
    The power contained in this will, viewed at common law, is not a mere naked power, but a power coupled with a trust, to wit, the payment of debts; and there being also some interest in the executors themselves, the case falls directly within the principle of Franklin v. Osgood, (14 John. 554.)
    The judgment of the.supreme court should be reversed with costs.

      J. G. Ring, for the defendant in error.
    The conveyance by Willcocks to Salmon, having been made without the concurrence of Thomas A. Morris, his co-executor, was void, and passed no estate in the land to Salmon.
    A power or authority given to two or more persons cannot, in the nature of things, be executed by a less number than the whole. It is true that at common law a distinction was made between what was termed a naked power and what was termed a power coupled with an interest. The former could not be executed without the concurrence of the whole number of persons to whom it was given, and if one died or refused to act, the power could.not be executed. (Co. Litt. 112 b, 113 a, 181 b, Shep. Touch. 449, pl. 9; Powell on Devises, 292, 310.) The latter might be executed by the survivor or by the person taking upon himself its execution ; (3 Salk. 277; 3 Atk. 714; 2 P. Wms. 102 ; 1 Caines’ Cas. in Err. 15; 3 Cowen's R. 654;) but a careful examination shows that there is nothing in these rules which militates against the above proposition. To understand the meaning of the terms “naked powers” and “ powers coupled with an interest,” as here applied, it is necessary to go back to common law definitions.

      “ A naked authority,” says Powell in his treatise on devises, “ is where a man devises that his executors shall sell his land, or orders his land to be sold by his executors, or appoints A. and B., whom he makes his executors, to sell his land. In all these cases the executors have only a naked power, and after the death of the testator the freehold descends to the heir.” (Pow. on Dev. 292, 3.) The same writer says, “ If lands be devised to the executors to be distributed for the good of the testator’s soul, in this case the freehold is in the executors after the death of the testator and not in the heir. By this devise they have authority coupled with an interest. (Id. 301. See also Sugden on Powers, 129.)
    These definitions render the reason of the rules alluded to perfectly intelligible. A naked power to two cannot in the nature of things be executed by one, because one is not two, and less than two does not satisfy the words of the donor. A power coupled with an interest can be executed by the survivor, dsc.; not indeed as a power, (and here lies the key to the. whole difficulty,) because the same technical objection would here apply as to a naked power, that a part is not the whole. But the land being vested in all in joint tenancy, upon the death of one goes to the survivors by the jus accrescendi, (4 Kent's Com. 360,) and the trust (all powers whether naked or coupled with an interest were originally to direct uses and perform trusts,) (4 Kent's Com. 505, 314,) follows the land; (2 Story's Eq. Jur. 288, § 976;) and a court of equity would compel the survivors to execute the trust; and what a trustee may be compelled to do by suit he may voluntarily do without suit. (2 Story's Eq. Jur. 290, § 979.) The power itself actually becomes extinct, but the trust surviving, a duty, and consequently an authority to execute it also survives. The rule was precisely the same where one of the trustees refused to accept the estate, which in such case would vest in the one accepting. (3 Paige, 421.)
    In the case before the court the power is a naked one ; but were it otherwise, and were the land vested in the executors, the survivor could not, without the express authority given in the will, execute the power, because there is no trust connected with it which a court of equity could enforce.

    At common law, neither a naked power nor a power coupled with an interest could be executed by less than the whole while the whole were living and had not rejected the trust. (Sinclair v. Jackson, 8 Cowen, 544; Bogert v. Hertell, 4 Hill, 514.) In the present case, Thomas A. Morris had neglected to qualify as executor, but he had not rejected the trust. (Sugden on Pow. 138; Judson v. Gibbons, 5 Wend. 227; 4 Hill, 508 512; 21 Wend. 436.)
    The revised statutes (1 R. S. 735, § 112,) provide “ where a power is vested in several persons, all must unite in its execution; but if previous to such execution one or more shall die, the power may be executed by the survivor or survivors. The conveyance of Willcocks is void under this provision of the statute.
    The revised statutes, (vol. 2, p. 109, § 55,) has no application to a case like the present, because the land is not ordered to be sold. This statute is substantially a re-enactment of the statute 21 Hen. 8, (see 2 Paige, 198,) which statute applies to na.ked powers, as is shown by the recital “ whereas divers sundry persons before this' time having other persons seized to their uses of and in lands,” &c. and was enacted to remedy the inconvenience of a strict construction of the common law, where one of the executors refused to intermeddle, by enabling the other executors, who accepted, to sell, and rendering their disposition valid. (Powell on Dev. 310 ; Sugd. on Powers, 139; 7 Dana, 8.) It was unnecessary to extend the statute to powers coupled with an interest, (that is, where the donee also has the legal estate,) because the executors in such cáse had full power at common law.

      The section of the revised statutes referred to embraces both naked powers and powers coupled with an interest, the latter of course unnecessarily.
    The language of the statute, 21 Hen. 8, is where testators have by their last wills “ willed and declared such their lands to be sold by their executors.” The language of the section of the revised statutes referred to is, “ or where such estate is ordered by any last will to be sold by the executors,” &c.
    Where land is ordered to be sold ; that is, where it appears from the will that the testator had determined to have it sold; such a trust is created as would be enforced by a court of equity in case of the death or refusal of one or all of the executors; and the statute does nothing more than anticipate the appointment of a trustee by a court of equity. But the statute has no application to cases like the present, where there is a discretion given to the executors to determine whether the land shall be sold or not. There is in such cases no enforcible trust, and the exercise of the discretion by less than the whole would be a manifest violation of the intention of the testator. (Clay and Craig v. Hart, 7 Dana, 2 ; Wooldridge v. Watkins, 3 Bibb, 349 ; Coleman v. McKinney, 3 J. J. Marsh. 248 ; Peters v. Beverley, 10 Peters, 532 ; 1 R. S. 734, § 96 ; and as to execution of such a discretionary power at common law, see Sugden on Powers, 145, 148, 222; Moore, 61, pl. 172; Cole v. Wade, 16 Ves. 27, 45, 46, 47; Walter v. Maunde, 19 id. 424; 7 Dana, 2, and cases cited ; 2 Story’s Eq. Jur. 397, § 1061.)
    The testator directs his debts to be paid out of his estate;" which is the usual direction in all wills, and gives the executors no authority to meddle with the real estate. The method of paying debts “ out of the estate,” where no power is given by the will to sell real estate, is first to appropriate all the personal property to that purpose, and upon that proving to be insufficient, the executor applies to the surrogate for an order to sell the real estate; before this can be obtained, it is necessary that all the heirs and devisees should be cited, and the executor must show “ that the whole of the personal property \yhich could be applied to the payment of debts of the deceased has been duly applied for that purpose.” (2 R. S. 102, § 14, sub. 3.) Under a power to sell real estate to pay debts, the executors ac without any check, and may resort to the land in the first instance. They may squander away every dollar of the personal property and still sell the real estate, and in answer to any complaint of the devisees they may say “ we think most fit and proper.” (See Roseboom v. Mosher, 2 Denio, 62.)
    The common law doctrine respecting powers given to indidividuals “ nominatim,” and powers given to them “ eo nomine cannot affect the present case, because, 1st, the power is given to the executors nominatim and not eo nomine. (Sugden on Powers, 141, 2, 4; 4 Kent’s Com. 326 ; Powell on Dev. 292 ; Clay & Craig v. Hart, 7 Dana, 2; 2 Story’s Eq. Jur. 398.) 2d. A power to individuals eo nomine as “ my executors” cculd not be executed by a single individual, because a single individual did not answer the words of the donor, “ executors” in the plural. In the language of Coke, it could only be executed while the plural number remained. 3d. The doctrine did not apply to cases of mere discretion. See Clay & Craig v. Hart, (7 Dana, 2,) in which case the power was given to the “ executors” eo nomine. (See also 1 R. S. 735, § 112.)
    The statute (2 R. S. 71, § 15) declaring that any executor not named in the will shall be deemed superseded, does not aid the execution of the power in question. For if the statute did suspend the power of Thomas A. Morris, still Willcocks acquired no additional power thereby. But the statute did not suspend the powers of Thomas A. Morris as trustee; his powers as executor were suspended, but not his powers as trustee. (Sugden on Pow. 138; Judson v. Gibbons 5 Wend. 227; 4 Hill, 508, 512; 21 Wend. 432.) The object of the provision of the statute is manifest. At common law an executor might take possession of the testator’s personal property and perform nearly all the legitimate duties of an executor w'ithout taking out letters upon the will. (Toller on Ex’rs, 24.) This was a defect in the law, and it was to remedy this that the statute was enacted.
   Rüggles, J.

The question to be solved here is not whether the power of sale survives to the surviving executor. The will declares expressly that it shall so survive. But that case has not occurred. The executors were all living when the deed in question was executed under the power. Two of the three had, however, neglected to act under the will. Only one had taken upon himself the execution of the will. He executed the deed in question alone and without the concurrence of the others. This was not a valid execution of the power at common law, and whether it was good under the statute of this state, (2 R. S. 109, § 55,) is the question presented for decision.

The statute is as follows: Sec. 55. Where any real estate or any interest therein is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale.” This statute is not a copy of 21 H. 8, ch. 4, but was intended un-, doubtedly to embrace all the cases adjudged to fall within the scope of the English act, and perhaps others.

But the plaintiff, who contests the validity of the deed, insists that the statute applies only to those cases in which the land is ordered to be sold by a positive and mandatory direction of the testator ; and not to the case of a mere power of sale, or where there is a discretion given to the executors to determine whether the land shall be sold or not. This distinction appears to be somewhat nice and refined; one that might not occur to all readers of the statute. It seems to have slept unnoticed during the progress and termination of several contested cases in this state and elsewhere, in which the distinction, if sound, would have been fatal to conveyances that were adjudged, in those cases, to be valid.

In Roseboom v. Mosher, (2 Denio, 61,) the testator gave to his executors discretionary power to sell his lands, if in then opinion, it should become necessary for the support and maintenance of his wife and children. One of the executors neglected to qualify, and the other who acted sold the land and executed the deed. It was regarded as a valid execution of the power under the statute. The case turned chiefly on the question whether proof of renunciation by one was necessary to enable the other to execute the power; and it was held that mere neglect to act was enough without a renunciation. The objection in that case would, if valid, have been fatal to the deed, but it was not raised by the counsel, nor suggested by the court.

Sharp v. Pratt, (15 Wend. 610,) was a case of the same kind. Nicholas Kiersted by his will appointed four executors, and authorized them to sell his real estate which he had devised to his children. Two of the executors acted under the will and conveyed the land without the concurrence of the others. The contested question in the case was, whether it was necessary to show, in support of the deed executed by the acting executors, that the others had renounced; and it was held not to be necessary.' The objection now made was not raised ; but the language of the court shows that the statute authorizing acting executors to execute the conveyance, was supposed to apply as well to a mere discretionary power, as to a mandatory order of sale. The court say, “the statute intended to depart from the rule of the common law, by declaring that when power is given to several executors to sell the land, it may be executed by such as take charge of the administration, if the others refuse or neglect to take on themselves the execution of the will;” and after some further remarks the court proceed to say, “ The deed, therefore, was equally efficacious to transfer the title of the testator as if it had been executed by all the executors named in the will. In this respect the statute makes no distinction between a devise to sell and a bare authority

In Bunner and Manning, ex'rs, v. Storm, (1 Sandf. 357,) Thomas Storm empowered his five executors to sell his real estate. Two of them acted, two renounced, and one was an infant. The two who acted sold the land under the power, and executed the deed without the concurrence of the others. In relation to the nature of the power, the vice chancellor said, “I am satisfied that the testator intended to make the executors the judges of the necessity for a sale.” The question was whether the deed thus made by the acting executors was a valid execution of the power, and the vice chancellor adjudged that it was.

Here then are three cases in the courts of this state, in which discretionary powers of sale have been held to be within the statute, and well executed by acting executors without the concurrence of the others. If these cases are not regarded as adjudications settling the construction of the statute in this state, they furnish at least very strong proof of the general understanding of the profession and of the courts, that the statute embraces the case of a mere discretionary power as well as that of a peremptory direction.

But we are referred to three cases in the court of appeals of Kentucky, in which it is declared that where a power of sale is conferred upon executors, leaving it to their discretion whether to sell or not, and part of the executors renounce, the acting executors cannot execute the power.

By a statute of Kentucky, passed in 1799, it is enacted “ that the sale and conveyance of lands devised to be sold, shall be made by the executors or such of them as shall undertake the execution of the will,” &c. In one of the cases above mentioned, (Wooldridge v. Watkins, 3 Bibb, 349,) it was held that this statute did not apply to a case in which the testator had left it in the power of his executors to sell or exchange any part of his estate, real or personal, as they might judge necessary for the advantage of his estate.” The opinion appears to have been founded on the reading of the act, and not upon any previous adjudication.- No authority is cited. The case was decided in 1814.

In 1830, in the case of Coleman v. McKinney, (3 J. J. Marshall, 246,) it was held that the statute did apply to a case in which the testator had directed his executors to sell his lands for the payment of his debts, if his personal estate should be insufficient for that purpose, because the contingency on which the sale was to be made did not depend on the judgment of the executors. In Clay v. Hart, (7 Dana, 1,) decided in 1838, that court affirmed the law as laid down in Wooldridge v. Watkins, and added that the like doctrine had been long and incontrovertibly settled in England, in reference to the statute of 21 H. 8, ch. 4. English books were referred to in support of that construcion. But with the greatest respect for that learned court, I am compelled to say, that I find nothing in the books referred to to uphold the doctrine. On the contrary, Mr. Sugden in his treatise on powers, at the place referred to, (p. 75,) says that formerly where a power was given to executors to sell, and one of them refused the trust, it was clear that the others could not sell, but that the 21 H. 8, ch. 4, had altered the law in that respect. The doctrine derives no support from the case cited from Moore’s reports, p. 61. That was not the case of a power of sale executed by an acting executor without the concurrence of a co-executor who had renounced. Nor was it the case of a power in which the executors had a discretion to sell or not. But it was a case in which the land was devised to be sold by the testator’s executors, or by the executors of his executors. One of the testator’s executors died intestate, and the survivor appointed executors and died; and the question was whether the executors of the surviving executor could make the sale. It was adjudged that they could not, because the .power was committed not to them alone, but to them jointly with the executors of the other execuioi. This case throws no light upon the construction of the statute 21 H. 8. It shows simply that a joint power cannot, at common law, oe executed by a part of those to whom it was entrusted, and without the concurrence of the rest. It was not a case within the 21 H. 8, because both the original executors were dead. Nor are the cases of Cole v. Wade, (16 Ves. 27,) and Walter v. Maunde, (19 id. 424,) any more satisfactory on this point. There the trust was to divide the estate of Sir Charles Boothe, among his nearest and most deserving relations—the distribu tion to be made entirely in the discretion of the trustees. The trust was to be executed by Ruddle and Wade, the executors, and the heirs, executors and administrators of the survivor of them. It was declared that the devisees of the surviving trustee (who were not his heirs,) could not execute the trust, they not being the persons designated therefor by Sir Charles Boothe, the original testator. The case has no relation whatever to the statute 21 H. 8.

. After bestowing some pains upon the search, I have not been able to'find any English adjudication or dictum that the operation of the statute 21 H. 8, ch. 4, is limited to the case of a peremptory order to sell. Lord Coke speaks of it as embracing the case of “ a power to sell.” In his commentary upon Littleton, 113, a, he says, “In Littleton’s case admit that one executor had refused to sell, then as the law stood when Littleton wrote, it was clear that the others could not sell. But now by the statute 21 H. 8, it is provided that when lands are willed to be sold by executors, though part of them refuse, yet the residue may sell: And albeit the letter of the law extendeth only where executors have a power to sell, yet being a beneficial law it is by construction extended where lands are devised to executors to be sold.” Mr. Preston in his essay on abstracts of title (vol. 2, p. 253,) repeats the language of Lord Coke, saying, “This statute has been construed to extend as well to lands which are actually devised to be sold to two or more executors, as to lands over which there is merely an authority and in no English book can I find the trace of such t distinction as that upon which the decision was founded in the case of Clay v. Hart.

In Jackson v. Given, (16 John. 170,) Mr. Justice Platt seemed to have in his mind the distinction contended for on the part of the plaintiff. But that case presented a case of survivorshin and not a question under the statute. It was so treated by me counsel. The testator made four executors, and directed them or any two of, them, to sell his estate upon his wife’s death or re-marriage. Two of them died without qualifying.. Two qualified as executors and afterwards one of them died, and the survivor sold and conveyed the estate. The two who qualified were authorized to sell by the express terms of the power. If the power survived, there was no need of the aid of the statute. If it did not, the statute could not aid the sale, because it was not made “ by the executors who took upon them the execution of the will,” one of them being dead. Under such circumstances the observation made by the learned justice at the commencement of his opinion, ought not to be regarded as authority, especially when taken in connexion with the subsequent cases heretofore mentioned.

The distinction upon which the court acted in the cases of Wooldridge v. Watkins, and Clay v. Hart, in the state of Kentucky, does not seem to have been recognized in any other state.

The Pennsylvania case of Zebach's lessee v. Smith, (3 Binney, 69,) is against the Kentucky decisions. Bartholomew Zebach made his will, appointing three exécutors, and empowered them as follows: “ to sell my land in Shamokin, on Penn’s creek, in the old purchase, and to give good right. When my debts are paid, if any thing should remain, my wife shall buy two cows,” &c. Two of the executors renounced and the other conveyed the land. There was no imperative direction to sell. The counsel for the plaintiff supposed that case to differ from the one in hand in this particular, that in the case of Zebacli’s will there was a trust which the creditors could have enforced in equity ; but that in the will in question there was not such a trust. But it seems to me there was such a trust n both cases, and more plainly so in the case of Morris’ will than that of Zebach, because in Morris’ will the power is given expressly for the payment of debts, and in Zebach’s it is only so by inference. The creditors have an interest in the execution of the power; and in case of a deficiency of personal estate, it ceases to be a matter of discretion in the executors whether to sell or not; it becomes their duty to sell. It is true the creditors may have another remedy, and perhaps a better one than a bill in equity against the executor to enforce the execution of the nower, to wit, by application under the statute for an order to sell. But that does not change the character of the power, nor exonerate the executor from his duty to the creditors.

In Chanet v. Villeponteaux, (3 M’Cord’s South Car. Rep.) the testator devised hi's lands to be sold at the discretion of his executors, of whom there were two. One went to France without having qualified, and the acting executor made the sale and conveyance. It was adjudged to be a case within the 21 H. 8, which had been re-enacted in that state.

In Wood v. Sparks, (1 Dev. & Bat. N. Car. Rep.) the testator, by his will, made three executors, only one of whom qualified. That one, without the others, sold and conveyed the land under a power expressed in these words, “ If my executors should think it best, I wish them to sell my real estate in the town of Plymouth, to the best advantage for the benefit of my children.” The conveyance was adjudged to be a valid execution of the power by virtue of the statute 21 H. 8, ch. 4. It is true that no point appears to have been made in this case upon the discretionary character of the power. That question was not raised, although the case occurred more than twenty years after the decision of the case of Wooldridge v. Watkins.

But the question has been raised, argued and decided in the court of appeals of Virginia, and the decision was adverse to the rule adopted in Kentucky. It is worthy of observation that the statutes of Virginia and Kentucky, on this subject, are precisely alike, excepting that the statute of Virginia authorizes the administrator, with the will annexed, to execute the power of sale when all the executors refuse to act, in the - same cases in which the acting executor can execute it when part of the executors refuse. The case alluded to was that of Brown v. Armistead, reported in 6 Rand. 593. The power of sale in the testator’s will was in these words: My will and desire is that, my executors hereinafter appointed, sell, at public sale, all my land, provided the said land will sell for as much, in their judgment, as will be equal to its value; and the money arising from such sale to be placed in the hands of my friend Stark Armistead, one of my executors hereafter- appointed, whom I vest with power to apply the said money to any use or uses he in his discretion may deem best for the benefit of my wife and all my children.” The testator appointed three executors, all of whom refused to act. The sale was made and conveyance executed by the administrator with the will annexed. Judge Carr, in delivering the opinion of the court, says, This statute,” (speaking of that part of it of which the Kentucky statute is a copy,) “ was taken from the 21 H. 8, ch. 4. It was admitted in the argument that if the testator had directed a positive and unconditional sale of the land by his executors, the case would have come directly within the law. But they are directed to sell provided the land will sell for as much, in their judgment, as will be equal to its value; and this, it is insisted, renders it a special confidence reposed in the individuals ■ appointed executors, which is personal to them, and can only be exercised by them, and not even by a part of them, but by the whole only. This point was argued with great strength, but the researches of the counsel had enabled him to produce no cases in support of it, nor have I found any.” The power was adjudged to be well executed. The opinion of the court was unanimous, excepting that one of the five judges was absent.

The argument on the part of the plaintiff is founded on the assumption that the statute, in speaking of lands “ ordered to be sold,” speaks only of those which the executors are peremptorily commanded to sell. But that would be a strict and narrow construction of a remedial and beneficial statute, the object of which was to prevent the failure of the power, and to carry out the intention of the testator as far as possible by the agents of his own selection. Although an authority to an executor-to sell is not a command that he shall sell, it is substantially an order, that he may sell.

The statute was designed as a remedy for the oversight of . a testator in not providing for the contingency that some of his executors might refuse to serve; and it was framed upon the presumption and belief that if that contingency had been foreseen, the testator would have preferred that one of his executors should execute the power alone, rather than it should fail. This presumption applies with as much force to the case of a discretionary power as to one of a mandatory character. Very many testators are not aware of the common law rule, that in the execution of a joint power it is indispensable that all must unite. And in appointing the agents to execute a power involving the exercise of discretion, it is natural to suppose that each one would be selected with reference to his fitness and capacity for the trust. This inference is natural and fair in all cases where the testator has not thought proper to say expressly that a certain number must unite in the sale. Gaston, J. in Wood v. Sparks, (1 Dev. & Bat. 392,) says, “ the great purpose of the statute, (21 H. 8, ch. 4,) is to correct mischiefs resulting from a rigid construction of these testamentary authorities, and it is the rule of law to so expound the act as to suppress these mischiefs and apply its remedies.” In the present case the power of sale was expressly given to the surviving executor: and the testator thereby manifested his intention that in a certain event the power might be executed by one only of the three donees. It is true the event contemplated has not occurred ; that is to say, Willcocks is not the surviving executor, and therefore at common law the power could not be executed by him alone; but if the testator in this case had not deemed each separate executor capable of executing the power alone, he would not have authorized its execution by the survivor; and in Zebach’s lessee v. Smith, Yeates, J. says that by the statute 21 13. 8, an acting executor upon the renunciation of the others is put upon the footing of a surviving executor. The statute in fact goes further. It enables the acting executor to execute the power in those cases in which the survivor-would not have that authority by the common law.

I am satisfied both on principle and on authority that the statute should be held to extend to all powers of sale conferred on executors, whether they involve the exercise of discretion, oi are peremptory in their character. Wills may thus be carried into effect according to their true intention, when otherwise they would be defeated by circumstances unforeseen by the testator The judgment of the supreme court and of the New-York common pleas should be reversed, and a venire de novo awarded.

Jewett, Ch. J.

The devise did not pass any interest in the real estate of the testator to the executrix and executors named, but merely conferred on such of them as took letters testamentary thereon a power to sell and convey all or any part of his real estate, in case they in their opinion should find it proper or most fit to do so, to pay the debts of the testator.

This power is a mere naked power, not coupled with any interest whatever, and at common law could not have been executed by one of the three executors named. (4 Kent’s Com. 5th ed. 320, n. c. ; Sharpsteen v. Tillou, 3 Cow. 651; Bergen v. Bennett, 1 Caines’ Cases in Err. 15 ; Jackson v. Schauber, 7 Cowen, 187.) And now by statute, (1 R. S. 735, § 112,) when a power is vested in several persons all must unite in its execution, unless previous to its execution one or more of such persons shall die; in that case the power may be executed by the survivor or survivors. But this provision is limited and controlled by the provisions of the statute. (2 R. S. 109, § 55.) It is, however, contended that this statute does not affect the question, on the ground that the estate is not ordered, but merely authorized to be sold, upon the contingency that the three executors named, or the survivor of them, should in their opinion find it proper or more fit to sell it for the purpose, of paying the testator’s debts, and that the statute only operates upon and makes valid conveyances of land made by one of several executors in the case mentioned, where the testator commands or imperatively directs a sale to be made; and does not extend to the case where a sale is merely permitted or authorized in the discretion of his executors.

The statute was passed to remedy the inconvenience, where some of the executors refuse or neglect to act, as executors; by reason of which such power conferred could not, by the principles of the common law, be executed ; as all were required to concur in the act authorized to be done. The mischief is the same in effect, in the case where the testator has by his will authorized his executors in their discretion to sell his lands to pay his debts, &c. when some of his executors neglect or refuse to take upon tnemselves lire execution of his will, as m the case where the same act is commanded or ordered to be done; and I think that the statute should receive a liberal construction, such as will suppress the mischief and advance the remedy, which is to render sales made under such power or authority by the executor or executors who do take upon them the execution of such will equally valid as if all of the executors named in the will had joined in the sale. It is by no means unusual, in construing a remedial statute, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischief. (Dwarris on Stat. 735.) My conclusion is that Willcocks had power under the will to convey the real estate of the testator, without the concurrence of hi-; co-executor named in the will.

Judgment reversed.


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    Moore, appellant, vs. Des Arts, respondent.

    The defendant imported into the city of New-York goods on which the collector of customs exacted and received duties. The goods-were by law entitled to a drawback of the duties in case they were exported within three years. The defendant sold the goods to the plaintiff at the “ long price,” which by custom and agreement included the amount of duties paid, and carried to the purchaser the right to the drawback. Afterwards, and while the plaintiffs yet owned the goods and could export them so as to get the drawback, or could sell them in market at the “long price,” the secretary of the treasury decided that goods of that kind were dutyfree, and thereupon the duties were refunded to the importer. In consequence of such , decision tbe right to a drawback was extinguished, and the market price of the article was immediately reduced by about the amount of duties which had been exacted. Held, on bill filed to recover the amount of duties returned to the defendant, there being no fraud in the case, and no warrranty that the goods were dutiable, and no allegation that the plaintiff intended to export the goods, that the plaintiff could not recover.

      Quere, whether, in case the plaintiff had a right to recover the money, the remedy would not be at law.
    Appeal from chancery. Moore filed his bill before the vice chancellor of the first circuit against Des Arts, stating the case m substance as follows : In February, 1844, the defendant im ported into the city of New-York 56,540 pounds of spelter, (a species of zinc,) on which the collector at the port of New-York exacted, and was paid by the importer, the sum of $585,40, for the duties, being twenty per cent ad valorem. The spelter was entitled to a drawback of the whole amount of duties in case it should be exported within three years. By usage and custom among merchants in New-York there are two modes of selling merchandise, so entitled to drawback; one at the “ long price,” the other, at the “short price.” By a sale at the “long price” is meant a sale at the full market value, including the amount paid for duties, so that the right to the drawback or return of duties is transferred to the purchaser, who receives back the duties in case he exports the article. By the “ short price” of such goods, is meant a price less than the “long price” by about the amount of duties paid, and the purchaser at the “ short price” is bound to export the goods so as to entitle them to the drawback which the importer receives; or in case the purchaser at the “ short price” does not export them, then he is bound himself to pay to the importer the amount of the drawback.
    After the spelter was imported, the complainant bought it of the defendant at the “long price,” being 6¿- cents per pound, amounting in all to $3675,10. The “ short price” at the time of such purchase was 5-J cents per pound ; so that the difference, (one cent on each pound,) would be $565,40, the amount of duties paid. After the purchase by the complainant, and in September, 1844, the secretary of the treasury decided that spelter was free from duty, under the name of “ teuteneque,” in the act of congress. And thereupon the sum of $565,40, being the amount of duties which the defendant had paid on the importation of the spelter in question, was refunded to him. The spelter was yet owned by the complainant, and in a condition to be exported, so as to entitle it to the drawback; but, as the bill alleged, by the decision of the secretary of the treasury, the right to the drawback on exporting the goods, was lost and extinguished, and by the same cause the price of the article was immediately reduced by about the amount of duties paid, and the article could no longer be sold at the long price.”

      The bill further stated, that as soon as the decision of the secretary was made known, the complainant requested the defendant to furnish him with the proper authority to receive the return duties at the custom house, which the defendant refused to do; also, that after the defendant received such duties, the complainant demanded that the same be paid over to 'him, which payment the defendant also refused. The bill claimed to recover the said sum of $565,40. There was no allegation that the complainant ever intended, to export the spelter, or that he would have exported it, so as to obtain the drawback.
    The defendant demurred to the bill for want of equity, and his demurrer was overruled by the vice chancellor, whose decision was reversed by the chancellor on appeal, and the bill was ordered to be dismissed. The complainant appeals to this court.

      H. S. Dodge, for the appellant.
    The case presented by the bill entitles the plaintiff to "the relief prayed, whether the spelter was charged with the duties correctly or illegally. Assuming the duties to have been improperly exacted, it is a case of mutual mistake. Both parties assumed and expressly agreed, that the article was dutiable, would be entitled to drawback, and on such assumption the contract for sale.at the “ long price” was made. This (if a mistake) was a mistake of fact, not of law. The question of fact being what was the meaning of “ teuteneque” in the act of congress. The decision of the collector of the customs as to this fact could not be reviewed.
    But if the duties exacted were payable as the parties supposed them to be, then the plaintiff was deprived, by the exercise of the discretion of the secretary of the treasury, of an advantage for which he expressly contracted and paid; the literal performance of so much of the defendant’s contract as required him to receive the drawback as trustee for the plaintiff has been prevented, but the defendant has received an indemnity which he holds as trustee for the plaintiff in the same manner as he would have held the drawback if it had been received. Here is not only a failure of consideration by accident, but at the same time, a receipt of an indemnity, and precisely within the maxim “neminem cum alterius detrimento fieri locupletiorem." (1 Story's Eq. Jur. § 472, 473; Quick v. Stuyvesant, 2 Paige, 84; Chase v. Barrett, 4 id 148; Hachett v. Pattle, 6 Madd. 4; May v. Bennett, 1 Russ. 370.)
    The plaintiff is the purchaser and assignee of the defendant’s right to any return of the duties, as well to an indemnity for the drawback, as to the drawback itself, and his equity is like that of the complainant in Randal v. Cochran, (1 Ves. sen. 98;) Wood v. Young, (5 Wend 620;) New- York Ins. Co. v. Roulet, (24 id. 505 ;) S. C. by the name of Varet v. New- York Ins. Co. (7 Paige, 561;) Heard v. Bradford, (4 Mass. R. 326;) 8 id 340; 3 id 443; 2 Denio, 224; 4 Hill, 635.
    The remedy is not exclusively at law; if there be any remedy at law it is the equitable action for money had and received. This action is a substitute for a bill of equity, and assumes a concurrent jurisdiction in equity, and courts of equity have not lost their jurisdiction because the law courts have extended theirs. (2 Story's Eq. Jur. § 1255, 1256.)

      D. Lord, for the respondent.
    I. The merchandize, spelter, was not in law dutiable; and so ivas not within the usage alleged as to debenture goods.
    II. Both parties are to be deemed conversant of the commercial name of the article, and then, whether dutiable or not, was a question of law; the parties contracting in knowledge of the law and fact, are silent as to.the sum exacted as a duty ; it is the vendor’s money, and- the vendee, without a contract for it, cannot claim it.
    III. The contract of sale merely, (without any mistake of fact, or fraud, or contract for the amount exacted,) does not carry with it any obligation of refunding, any part of the supposed" components of the cost of the goods.
    ■ IV. If the contract of sale, by its nature or the usage alleged, contains an agreement to refund any part of the cost, them the remedy is at law; here being neither trust, mistake, accident or fraud, and no ground of jurisdiction for discovery or account.
   Bronson, J.

The case made by the bill amounts to this ; and nothing more. The defendant imported the spelter, and paid the duties which were demanded by the government. The property was then sold to the complainant at the “ long price,” or full market value, which, according to the alleged usage in the city of New-York, and the intention of the parties, gave the complainant a right to the drawback, in case the goods should be exported at such time and in such manner as to entitle them to a drawback. While the goods still remained in a condition in which they might have been exported and the drawback secured, the secretary of the treasury decided, that the goods were free from duty; and thereupon the money which had been wrongfully demanded of the defendant when he imported the spelter, was refunded to him by the government. Immediately on publishing the decision of the secretary of the treasury, the right to obtain the drawback on exporting the goods was lost; and the complainant also lost the right and opportunity of obtaining an equivalent for the drawback by reselling the goods at the long price”—the market value of the goods being reduced by about the amount of the duties. On this case, the complainant insists, that the money which was refunded to the defendant belongs to him.

Although there is a seeming equity in favor of the complainant, I have not been able to discover any principle upon which his claim can be supported. There was no warranty when the complainant purchased that the goods were dutiable; and no fraud of any kind is imputed to the defendant. So far as appears, the parties dealt upon equal terms, each knowing all that was known by the other. As the government officers have decided both ways on the question whether the spelter was subject to duties, it may fairly be presumed that these merchants knew that was a debateable question ; they knew that the decision which had been made by the collector might be overruled ay the secretary of the treasury, and the duties be refunded to the importer. With this knowledge the defendant sold, and the complainant purchased the spelter, with a right to the drawback, should that right ever become perfect. But there was no sale or purchase of the duties in case they should be refunded by the government, on the ground that the goods were not dutiable. At the time of the sale, there were two contingencies in which the duties might be restored to the importer: he might receive them as a drawback on exporting the goods; or the money might be refunded on the ground that it was improperly demanded at the first. The complainant purchased the right to the drawback; but he did not purchase the other right. And I do not see how we can give it to him without making a contract for the parties.

The argument for the complainant goes upon the ground, that he purchased the right to the duties should they be restored by the government for any cause. But that is not the case made by the bill. He only purchased a fight to the duties in case they should be restored as a drawback on exporting the goods.

There is no allegation that the defendant did any act which deprived the complainant of the right to the drawback. On the contrary, the allegation is, that the right was lost to the complainant immediately on the making and publication of the decision of the secretary that the goods were free from duty. And' such was evidently the necessary consequence of the decision. The right of drawback was at an end, whether the defendant received the money which the government offered to refund, or not. And the decision that such goods were free, would of course reduce their market value by about the amount which had before been charged for duties.

There is a further difficulty in the case. The bill contains no allegation that the complainant, at the time the secretary made his decision, intended to, or would have exported the goods, if the duties had not been refunded; nor that be could have sold the property to any one else for the purpose of exportation ; nor that the goods then bore a higher price in any foreign market than they did in our own. Nor does it appear in any other way, that the complainant lost any thing of value, ny losing the right, which he purchased, to the drawback on exporting the goods. The fall in the market value of the property did not result from the loss of the right of drawback; but was the natural consequence of the decision of the government that the goods were not subject to duties.

I am of opinion that the decree of the court of chancery is right, and should be affirmed.

Decree affirmed.


author: Wright, J.

text:
    Winter vs. Kinney.
    The policy of the law in declaring void bonds, agreements, &c. taken by sheriffs and other officers cobre officii not in conformity with statute, is to geard against official oppression on the one side, and a lax performance of duty to the injury of the plaintiff in the process on the other.
    An agreement made with a sheriff by which a party ’under arrest is permitted to go at large upon any terms other than those prescribed by statute is void. And so is any agreement taken from a parly in custody intended as an indemnity to the sheriff for a breach of duty.
    But tile prohibition extends only to the officer, and not to the plaintiff in the process. Therefore, where a party under arrest was permitted to go at large, upon depositing with a third person the sum of money for which he was arrested, under an agreement, that if he did not surrender himself at a given time, the money might be paid overto the plaintiff in the process; held, in an action to recover back the money from the person with whom it was deposited, that the question was, whether the agreement was made with the officer, or with the plaintiff at whose suit the arrest was made; and upon the evidence, that question directed to be submitted to the jury.
    On error from the supreme court. Kinney brought assumpsit against Andrew Winter in the supreme court, and declared for money had and received to his use. The defendant pleaded the general issue, and the cause was tried at the New-York circuit, before Edmonds, circuit judge, in May, 1845. It appeared on the trial, that the plaintiff, who was a contractor on the New-York and Erie rail-road near the line of New-Jersey, was arrested in the fall of 1840, by John A. Winter, a deputy of the sheriff of the county of Bergen in New-Jersey, at the suit of one Wanmaker. The arrest took place on a Saturday evening, between the hours of seven and ten o’clock, within the state of New-Jersey. The plaintiff, on being arrested, agreed with the defendant, that if he would become his bail until Monday morning, he would deposit with him $340, that being the amount for which he was required to give bail; and in case he failed to surrender himself to the deputy on Monday morning, or settle with Wanmaker, then that the defendant should pay the money over to Wanmaker. Under this agreement the plaintiff deposited with the defendant $340, being the money for which this suit was brought. Before daylight on Monday morning the plaintiff offered to surrender himself and demanded the money; but the defendant and the deputy refused to accept the surrender at that time, alleging that he was not to surrender himself until after daylight. The evidence was conflicting as to the hour on Monday morning when the surrender was to be made, and it did not appear that the plaintiff made any other offer to surrender himself. The defendant paid the money over to Wanmaker on being indemnified. One of the witnesses testified that Wanmaker was present a part of the time when the agreement was made, and that the plaintiff and Wanmaker on the same occasion conversed respecting Wanmakefs claim. Another witness testified that one of the persons present began to draw a bail bond; that the plaintiff remarked it was not worth while to be at the trouble and expense of drawing it, because he would see Wanmaker on Monday morning, and would arrange the matter with him, and there would be the end of it; that it was all understood between them.

    The circuit judge ruled that the agreement under which the $340 was deposited was, void; that there were no questions of fact for the jury to pass upon, and that the plaintiff was entitled to recover. The defendant excepted. Verdict for the plaintiff. A motion for a new trial was denied by the supreme court, and judgment rendered for the plaintiff.

      G. R. J. Bowdo'm, for plaintiff in error.

      Win. Curtis Noyes, for defendant in error.
   Wright, J.

An agreement made with a sheriff, or ether public officer, to obtain an indulgence not authorized by law to a party under arrest, or in contemplation of the escape of such party ; or the taking, by such officer, from a party in custody, an obligation or security not sanctioned by statute, for the ease and favor of the prisoner, and as an indemnity for a breach of duty on the part of such officer; has uniformly been held void under the statute of 23 Henry 6, chapter 9, in England, in this state, and in other states of the Union in which that statute has been in substance re-enacted; at least, when such agreements or securities have been pfosecuted by the officer himself, or in the name of others for his benefit, or where the attempt has been made to set up or enforce them for his relief or protection. (1 T. R. 418 ; 7 id. 109 ; 7 John. R. 159; id. 436; 8 id. 76; 5 Wend. 61; 19 id. 188; 1 Southard, 319; 2 id. 811.) At common law, undoubtedly, independent of the statute, if the agreement made or security taken colore officii contemplate an indemnity for the fraudulent escape of the party arrested, or for any act inconsistent with the duty of the officer, whereby either official oppression, or injury to the plaintiff in the suit may result, such agreement or security is void. The statute of New-Jersey is substantially a re-enactment of that of 23 Henry 6. It provides that no sheriff, under sheriff) coronel, jailer, or other officer that may have a party in custody, shall take or make, or cause to be taken or made, any obligation” for letting out of prison, or from arrest, by virtue of any writ, process or warrant, in any personal action, or by reason of any indictment for trespass, or by color of his or their office, of any person, or by any person, by course of law, but only to themselves respectively, and by the name of their office, and upon condition written, that the said prisoner shall appear at the day and place mentioned and contained in the said writ, process or warrant.” (Elm. Dig. 239; Laws of N. J. 1796.) The only mode in which-the officer can. discharge from arrest, is that prescribed bj statute; nor can he take any obligation or security from the party in custody, conditioned otherwise than for his appearance at the day and place mentioned in the process. Should he do so, the act being without authority, he would not be protected against the party at whose suit the arrest was made, and the agreement or security being without consideration, so far as the officer was concerned, could not be enforced by him. The effect, therefore, is to render such agreement or security in the hands of the officer, or when attempted to be enforced for his protection or benefit, utterly void. The policy of the law in declaring void agreements and securities not taken in conformity to the statute, when attempted to be set up and enforced by the officer, is to guard against official oppression on the one side, and a lax performance of duty, to the injury of the plaintiff in the process, on the other. I would not be understood as saying that a public officer may not, under any circumstances, take a security unless it be one authorized by statute laxv. There are a variety of securities taken by the officers referred to in the New-Jersey statute, valid at common law, but not embraced within any statutory enactment. But where a party is in custody, and the officer, instead of taking the obligation for his release specifically prescribed by statute, takes one at his own volition, more or less onerous to the prisoner, he asserts, by virtue of his office, an illegal claim of right or authority to take it.. He takes it colore officii. “ Color' of office,” says Tomlin, “ is when an act is evilly done by the countenance of an officer; and is always taken in the worst sense, being grounded upon corruption, to which the office is a mere shadow or color.”

But the statute is confined to public officers; and hence a distinction is to be observed between agreements made by officers colore officii, and those with the party at whose suit the arrest is made. The latter may make such agreement or take such security as he pleases, on discharging his debtor from'arrest. In Hall v. Carter, (2 Mod. 304,) it was said, though a sheriff cannot take a bond in any other form than that prescribed by statute, the party himself may; and this doctrine was affirmed in Rogers v. Reeves, (1 T. R. 422,) and Fuller v. Prest, (7 T. R. 109) The party may also agree or consent that the prisoner shall go at large on a deposit of money to discharge his debt, or dispensing with the bail bond, may accept his own, or the undertaking of another, that he will appear. But in these cases, the officer must not be a party in any way beneficially interested in the agreement or security.

There is but a single question in this case. If the agreement set up was made with the deputy sheriff, John A. Winter, through his brother Andrew, in contravention and evasion of the statute, it was void; and Kinney having parted with his money without consideration, it still belongs to him. On the other-hand, if the contract was made with Wanmaker, the plaintiff in the writ, or with his assent and for his benefit, and the sheriff was no party to it, it was upon sufficient consideration-, and legal.

The circuit judge decided that the defendant, Andrew Winter, had not sustained his defence, and that it ought not to be submitted to the jury; and he charged the jury “that there were no questions of fact for them to decide, and that the plaintiff was entitled to recover, because the agreement on which the money was deposited was without consideration and void thus withdrawing from their consideration the question whether the agreement had been made with Wanmaker, the creditor, or with the sheriff, and assuming to decide himself, from the evidence, that it was with the latter. In this I think he erred. Whether the agreement was void or not, depended upon the question of fact whether it had been made with the sheriff or with Wanmaker, the plaintiff in- the writ. In this case, this was a question, with proper instructions as to the law, for the jury. There was some evidence, at least, favoring the idea that Wanmaker was a party to the agreement, or that it was made for his benefit, and by his authority and consent. lie was present part of the time whilst Kinney was under -arrest, and he conversed with Kinney respecting his claim. Kinney spoke of seeing him on Monday morning, according to the terms of the agreement, with the view of arranging his debt, and remarked that it was all understood between them.” Wanmaker sent a message' to Kinney to meet him for settlement on Monday morning, showing that he understood the agreement, and assented to it at the time it was made, or subsequently; and Wanmaker afterwards received the money that had been deposited. These facts, in connection with the other evidence in the case, may have failed to satisfy the jury that Wanmaker, and not the sheriff, was a party to the agreement, but they were not so weak and irrelevant as to justify the court in authoritatively withholding them from their consideration. It is peculiarly the province of the jury to reconcile conflicting testimony, and settle disputed questions of fact.

On a new trial, should the jury find that the agreement was made with the sheriff, or that he was a party in any way beneficially interested in it, it will not be necessary to pursue the further inquiry, whether it had been substantially complied with by Kinney, as it would be unauthorized and void; but should they find that it was made with Wanmaker, the credi tor, then the question of performance by Kinney would neces sarily arise.

At the trial the defendant offered to show the amount and consideration of the- debt of Wanmaker against Kinney—that the same was a just debt for three hundred and fifty dollars, and had been so admitted by Kinney, and agreed to be paid by him. To which evidence, so offered, the plaintiff objected, stating that if he was permitted to go into such evidence, he was ready to show that he did not owe Wanmaker, or if any thing, but a small sum, not exceeding ten dollars. The circuit judge refused to allow or permit the defendant to give any evidence concerning the debt due from Kinney to Wanmaker. In this I think he was right. It was clearly an attempt to throw into the case an irrelevant and impertinent issue.

Upon the ground, therefore, that there was a question of fact in the case that should have been submitted to the consideration of the juiy, I am of the opinion that the judgment of - the supreme court should be reversed, and a venire de novo awarded, costs to abide the event.

Judgment reversed.


author: Gray, J.

text:
    Deraismes and others vs. The Merchants’ Mutual Insurance Company.
    Where the charter of a mutual insurance company authorized such company, " for the better security of its dealers,” to receive premium notes in advance, of persons intending to take policies, and to negotiate such notes for the purpose of paying claims or otherwise, in the course of its business, and to pay to the makers of such notes a compensation not exceeding five per cent, per annum, on so much of the notes as exceeded the premiums on policies actually taken; held, that a note taken by the company in pursuance of its charter for premiums in advance, was valid and effectual for the whole face thereof, although the premiums on insurances actually received by the maker, amounted to only a part of such note.
    It seems, that a note so given, is valid by force of the statute authorizing it to be taken, and therefore that a partial failure of consideration cannot be set up to defeat a recovery of the full amount.
    But if a consideration is necessary, the concurrence of others in giving similar notes for the purpose of giving a credit to the company in pursuance of an agreement entered into by all the makers, the contemplated advantages of insurance in such company, and the compensation authorized to be paid to the makers on such an amount as the notes should exceed the premiums on insurances actually taken, constitute a sufficient consideration to uphold such a note.
    The Merchants’ Mutual Insurance Company brought as sumpsit in the superior court of the city of New-York, against Deraismes & Boizard, upon a promissory note made by them, as follows:

      “ $2785,05. Nevv-York, December 4, 1844.
    Twelve months after date we promise to pay the Merchants’ Mutual Insurance Company, or order, for value received, twenty-seven hundred and eighty-five dollars and five cents.
    Deraismes & Boizard.”
    This note "was given in renewal of a previous note for $3000, which was given for premiums. in advance on policies of insurance, intended to be received by the defendants from the plaintiffs, under the twelfth section of the act incorporating the plaintiffs, (iSiat. 1843, p. 73,) and in pursuance of the following agreement, which was signed by the defendants and others: “ The subscribers hereby agree to give their notes at one year from date, to The Merchants’ Mutual Insurance Company, of which William Neilson is intended to be the President, for the amounts set opposite to their names respectively, being for premiums on risks to be taken by said company on the following conditions: First. The amount of said risks shall be respectively at least the sums affixed to our signatures, the rates of premiums to be agreed upon hereafter. Secondly. That this agreement shall be entered into by persons satisfactory to each of us, and to the collective amount of two hundred thousand dollars. Thirdly. That the rates charged by The Merchants’ Mutual Insurance Company shall be the same as are charged by the insurance companies of this city. Fourthly. That the subscribers shall enjoy the advantage of The Merchants’ Mutual Insurance Company, as secured by charter, and shall in no -event be made liable for the debts of the company, beyond the amount of their several subscriptions.” The defendants actually took policies of insurance in the company, in pursuance of the above agreement, and of the twelfth section of the charter, to such an amount only as that the premiums thereon amounted to the sum of $790, and no more. This sum, before the trial of the cause, had been paid to and accepted by the plaintiffs’ attorney, together with the costs up to the time of such payment; and it was insisted that the note was not valid or collectable fdr any further sum, being, as was contended, for *11 beyond that sum, an engagement to pay premiums on risks which the company never assumed. The company became insolvent in consequence of losses sustained by the great fire in 1845.
    The judge who tried the cause in the superior court, charged the jury, that as matter of law upon the whole case, the plaintiffs were entitled to recover the full amount of the note, less the sum of $790 paid. A verdict and judgment were had accordingly, and the defendants having duly excepted, bring error into this court.

      C. O’Conor, for the plaintiffs in error.
    The note in question was given in advance for premiums on risks to be assumed by the company for the defendants ; and so far as risks were not assumed the plaintiffs were not entitled to recover. The notes, authorized to be taken for premiums in advance from persons intending to receive policies under the 12th section of the act of incorporation, are not absolutely and unconditionally payable, whether the company earn premiums or not. That section is merely an enabling clause and not a clause providing a capital for the company. Its object was to provide the company with accommodation notes, which if needed,' might be used to pay ordinary expenses and losses occurring in the regular course of its business. The other provisions of the charter harmonized with this construction, (§§ 11, 13, 15 16 17, 24,) while the construction contended for on the other side would lead to the greatest absurdities and incongruities. The nature and history of mutual insurance companies, and a comparative view of the characters they have borne at different times, also support the construction which we contend for. (Strang v. Harvey, 3 Bing. 304; id. 315; 2 Term Rep. 512; 7 id. 339; Laws of 1809, p. 154; id. 1802, p. 152; id. 1814, p. 56; id. 1816, p. 111; id. 1834, p. 530, §§ 4, 7, 8; id. 1836, p. 128, §§ 6, 8, 11.)

      D. Lord, for the defendants in error.
    The defendants gave the note in question for the purpose of aiding in the establishment and support of a company for mutual insurance, without any stock capital. The advantages from such company to every person intending to take out policies, were a consideration sufficient to uphold a note given for the above purpose. The uniting or concurring with others who were to give similar notes, and the giving of such notes by others, was a consideration sufficient to uphold the note. It was also a sufficient consideration to sustain this note, that the company organized and commenced business upon the basis of this and other similar notes, and issued policies to the makers. The taking of policies by dealers with the company, having the 12th section of this charter in its constitution, was a credit given to the company upon all the assets in its possession, and was also a good consideration. The note was valid as a statutory security; the statute itself removed the objection of the want of consideration, and it sanctioned a compensation for the liability.
    The notes are valid as a security to dealers for their full amount; otherwise they would not be a security to dealers. As mere advances of premiums, not to be valid unless the policies were taken out, the notes were in nowise a security for dealers. As notes to be valid only when negotiated before insolvency, they would afford no security to dealers, but would create as large a claim on the company as that which their negotiation satisfied. They were intended to induce insurances with the company not only from strangers, but from the givers of the notes; to induce the makers to fill them up by premiums. If the makers are not held liable for the full amount, this object would be defeated.
   Gray, J.

This is an action to recover from the plaintiff in error a note for $2785,05, executed to the Merchants' Mutual Insurance Company,- in renewal of a note for $8000, given by them to said company, pursuant to the provisions of the twelfth section of the act of incorporation of said company, passed April 10, 1843. (See Sess. Laws of 1843, ch. 95, p. 73.) The second section of the act provides that after having received approved applications for insurance to the amount of $500,000, the premiums on which shall have been actually paid in or secured to be paid, the company may be organized and commence its operations. No objection having been made on that ground, we are authorized to infer that all the requirements of the act, preliminary to the due organization of the company, were observed and fully complied with. The 12th section of the act provides that the company, for the better security of its dealers, may receive notes for premiums in advance, of persons intending to receive its policies, and may negotiate such notes for the purpose of paying claims or otherwise in the course of its business,” and authorizes a compensation not exceeding five per cent, per annum to be made to the signers of such notes on such portion thereof as may exceed the amount of premiums actually paid in by the several makers respectively.

The note in question was given for premiums in advance under the 12th section. The premiums on insurances actually taken amount to $790, and to that extent the validity of the note is not denied. But the concession that the note is so far valid, it seems to me, virtually admits that it is good for the whole amount. It is not like an ordinary commercial note, where a partial failure of consideration may be set up as between the original parties. I look upon this note as a statutory security, the validity of which may be rested entirely upon the statute authorizing it to be taken, and does not at all depend upon any question of consideration. And in this view the security, if good for any amount, is valid and effectual for the whole. If, however, a consideration should be deemed essential to its validity, then the agreement signed by the plaintiff with others, interested as associates in this company, to give their notes respectively, and to share severally the liabilities, and enjoy the advantages of The Merchants’ Mutual Insurance Company, as secured by its charter, and the fact also that dividends of the profits on the excess of the notes so given, over and above the amount of premiums on actual insurance, were also provided for by the charter, and to be annually distributed to the several makers of notes, constitute a consideration valid and sufficient to uphold this note.

It was alleged on the part of the plaintiffs below, on the argur ment, and the fact was not at all controverted, that the note in question to its full amount with, the notes of other persons given in advance for premiums, was, by the commissioners, included with the premium notes on actual applications, and used to make the amount of $500,000 required by the 2d section of the act as a .prerequisite to the organization and commencement of operations of the company.

It may be questionable, perhaps, whether under the provision» of the charter these notes were thus applicable, and whether they could be made legally available as the basis on which alone the organization of the company was authorized by the legislature But this question was not raised. The objection of the plaintiff ia error does not extend to the legality of the company’s organization, nor to the collectability of that part of the note amounting to the premium on insurance actually made; but the objection and the only question submitted for our consideration is, whether this note, as to the balance beyond the actual insurance, can be collected. Of that I have no doubt. Admitting what I'deem is conceded by the plain tiffin error, that the company was duly organized, and that the note was taken in the exercise of its legiti mate powers, and is valid in part and collectible to the amount of $790, and there remains not a doubt of the validity and collsctability of this note to its entire amount, and the application thereof by the company to the purposes authorized by its charter.

It was not the intention of the legislature, nor is it necessary to the validity of these notes to their full amount, that insurance by the company shall, at the time, or subsequently, be actually made to the persons making the notes, to such an amount as that the premium thereon shall in amount be equal to the amount of the notes. That is not at all important or necessary. The object of this note and all similar notes taken by the company, and the purposes for which they were designed by the legislature, are for the better security of the dealers with the company; and if losses have been or shall at any time be sustained by those dealers, these notes to the entire amount thereof are legally as well as equitably applicable to the payment and liquidation of those losses. By the great fire in New-York in-1845, this company incurred liabilities on account of insurances to an extent exceeding altogether its means, and was rendered utterly insolvent; and justice requires, therefore, that all its available means shall be collected and faithfully appropriated to meet the losses of its dealers and creditors. It would be a palpable perversion of the object and design of the legislature, and a gross fraud upon the dealers and creditors of the company, to hold that these notes and securities, upon the basis of which the community has been induced to deal with the company, are void and uncollectable wholly, or available only to the extent of the actual insurance made thereon.

I am of opinion that the judgment of the superior court should be affirmed.

Judgment affirmed.


author: Bronson, Ch. J.

text:
    Bogert vs. Morse.
    It seems, that where one party receives money from another, and there is no explanation of the fact, the presumption is that he receives it because it is his due, and not by way of loan.
    But where a witness testified, that he asked the defendant if he had had any money of the plaintiff, and the defendant replied that he had had twenty dollars of him, and the witness then told the defendant that the plaintiff had requested the'witness to speak to him about it, to which the defendant made no reply, but turned away; héld, that a jury might infer from this evidence that the money was received by way of a loan, and the jury having so found, that their verdict in a justice’s court was conclusive.
    On error from the supreme court. Morse sued Bogert in a justice’s court for money lent. The cause was-tried by a jury, and on the trial a witness called for the plaintiff testified that at the request of the plaintiff he went to see the defendant about some money lent; that he asked the defendant if he had had some money of the plaintiff; the defendant replied that he had had twenty dollars of him; the witness then said to him that the plaintiff had requested the witness to speak to him about it; that the defendant made no reply to this observation, but turned away. There was no other evidence in the case, and the defendant requested the justice to nonsuit the plaintiff. The justice refused to do so, and submitted the evidence to the jury, who found a verdict in favor of the plaintiff for the $20, on which the justice entered judgment. The defendant removed the judgment by certiorari into the common pleas of Yates county where the judgment was reversed. The plaintiff then brought error into the supreme court, where the judgment of the common pleas was reversed and that of the justice affirmed. The following is the opinion of the supreme court.
   By the Court,

Bronson, Ch. J.

What the plaintiff said to the witness was not communicated to the defendant, and must therefore be laid out of view. The proof then stands thus: The witness went to the defendant’s store and asked him if he had had any money of the plaintiff. The defendant said he had had twenty dollars of him. Upon this proof, without any thing more, the fair and reasonable inference is that the defen dant received the money because it was due to him, and not by way of a loan. When one man delivers a sum of money to another, if there be nothing else to explain the transaction, the legal presumption always is that the money belonged to the one who received it, and not that he thereby became a debtor to the other. (Welch v. Seaborn, 1 Stark. R. 474.) But the plaintiff thinks his case is helped by what followed. After the defendant said he had had twenty dollars, the witness said to him—the plaintiff told me to speak to you about it. The defendant made no reply, but turned around and went into the store. I feel some difficulty in saying that this made out a prima facie case for the plaintiff. If the money was received because it was due to the defendant, he would understand from what the witness said that the plaintiff wished to obtain evidence of the payment; and as that admission had already been made, there was no occasion for a reply. Nothing was said about a loan; and the facts proved are about as consistent with the supposition that the defendant received the money as' a creditor, as that he received it as a debtor. The plaintiff holds the affirmative; and must show that it was a loan. It is not enough for him to make out a balanced case, and then leave it to a jury to guess at the truth.

Although my brethren agree in this rule, they tliin,r that the scales were turned in favor of the plaintiff; that the act of the defendant in turning away without a reply, when he was told that the witness had been directed to speak to him about the money, furnished some evidence that he received the money as a loan, and so made out a proper case for the consideration of the jury. On reflection, I shall not dissent from that view of the case. If there was enough to carry the cause to the jury, their decision was final. The judgment of the common pleas must therefore be reversed, and that of the justice affirmed. •

The cause was argued in this court by E. Van Burén, for plaintiff in error; and B. W. Franklin, for defendant in error.

After advisement the court were of opinion that the evidence was proper for the consideration of the jury, and the jury having found that the money was received by the defendant as a loan, that the common pleas erred in reversing the judgment of the justice. The judgment of the supreme court was therefore affirmed.