text:
    Richard Decker v. Charles D. Mathews.
    The maker of a note, which has been wrongfully taken from his custody by a third person, and negotiated for value to a bona fide holder, may recover of the wrong-doer the value of the note, although it is outstanding and unpaid, when the action is brought The defendant having negotiated it for cash, it was held that prima fade, its value, as between him and the maker, was at least the sum which the defendant received for the note, on the conversion of it
    (Before Campbell, Paine, and Boswonrn, J. J.)
    March 22, 29, 1852.
    This was an appeal from a judgment at special term: the facts of the case are fully stated- in the opinion of the court.

      M. S. Bidwell and W. H. Taggard for appellant.

      Stoughton and M. G. Harrington for respondent.
   By the Court.

Bosworth, J.

This action was tried by a jury, before Mr. Justice Duer, at special term, and now comes before the court, on appeal from the judgment there rendered. It is urged on the appeal, .that the complaint does not state sufficient facts to constitute a cause of action ; that the judge, at the trial, erroneously refused to charge as requested ; that the defendant was prejudiced by the charge made; and that the verdict is against the weight of evidence.

The complaint states, that in the month of November, 1847, the plaintiff made his promissory note, dated Nov. 1st, 1847, by which he promised to pay, four months from its date, to the order of Robert Jones, ¡$2868 47. That it was made by Mm, and endorsed by Robert Jones, without consideration, and solely for the accommodation of James Jones & Co., and was delivered so endorsed, to James Jones & Co., for the specific purpose of being, by the latter, offered for discount at the Manhattan Company, and having the proceeds of it, if discounted, used to pay and take up other notes, before then endorsed by the plaintiff and Robert Jones, for the accommodation of James Jones & Co. That at this time, the plaintiff was not indebted to Robert Jones, or to James Jones & Co., or to either member of that firm. That James Jones & Co. offered the note for discount at the Manhattan Company, that it was not discounted, and thereafter James Jones & Co. obtained the note from the bank, placed it in a tin box in the safe of their store, for safe keeping, whereupon the plaintiff became entitled to the possession of the note. That' after it was so placed in the tin box, and in the same month of November, the defendant, without the knowledge or consent of James Jones & Go., or of either member of- that firm, wrongfully and illegally took the note from said tin box, and delivered it to one Gardner, and that thereupon defendant and Gardner, wrongfully, and without the knowledge or consent of the plaintiff, or of James Jones & Co., or of either member of that firm, “ converted and disposed of the same to their own use, and from thence, hitherto, have wrongfully neglected and refused, and still do neglect and refuse to deliver the said note to the said plaintiff.” It prayed judgment for the amount and value of the said note, with such damages as the plaintiff has sustained by reason of the unlawful taking, detention, and conversion thereof, by the said defendants. Gardner, as well as Mathews, was made a party defendant to the action.

The defendants, answering separately, denied each allegation of the complaint, except the making of the note.

“ The said defendant Gardner alleges that in December, 1847, James Jones, one of the firm of James Jones & Co., requested Gardner, as a friendly act, to offer a note, which he believes to be the one in question, for discount, at the Bowery Bank, where said defendant had influence, that he consented to do so, that James Jones then produced the note in presence of Mathews, and delivered it to Gardner, that Gardner offered it for discount at said bank, that it was discounted there, and the proceeds paid to James Jones & Co., as follows, viz. $1225 was paid in cash by Gardner, to James Jones, and the balance was paid by Gardner to the said Mathews, with the said Jones’s direction and assent, the same firm being then indebted to Mathews in a larger amount than said balance ; that the note was so presented for discount, and its proceeds paid, as aforesaid, with the knowledge and assent of Decker.”

“ The said defendant Mathews, alleges that the said balance of the proceeds of the said note, was paid to him by said Gardner, as aforesaid, and that the said firm of James Jones & Go. were largely indebted to him at that time, and in an amount far exceeding said balance, and are still so indebted, that the said note was represented by James Jones & Co. to have been made and endorsed, to enable said firm to obtain money thereon, in any way, and from any source, the said firm being at that time insolvent, to the knowledge of said Decker, and Robert Jones, and each of them being liable for said firm.”

It will be observed, that the answer of Mathews does not allege any of the matters to be true, which are averred by Gardner, in respect to the discounting of the note at the Bowery Bank, or that it was done at the request of James Jones, or with the knowledge of Jones, or of either member of his firm, or of the plaintiff.

The plaintiff replied to the answer, and denied each and every of the allegations of new matter contained therein. The testimony produced at the trial, covers some eighty-four printed pages, relates to many matters not pertinent to the issue, except as its details may affect the credibility of witnesses, and was introduced, and submitted to the jury, without a single objection to any part of it from either party. The judge, at the trial, among other'matters, charged the jury “that the first question, which it would be necessary for them to determine, was, whether the plaintiff Decker was the owner of the note at the time of its alleged conversion by the defendants, and that whether he was so or not, depended upon the facts, whether the note had been drawn by him for the general accommodation of James Jones, to be used by the latter in any manner, or for any purpose he might deem expedient, or had been drawn for the specific purpose of-being discounted at the Manhattan bank, and with the understanding that its proceeds, when so discounted, should be applied to the payment of notes, on which the plaintiff and Robert Jones were then liable. That if the jury were satisfied that the note had been delivered to James Jones, for the specific object, and with the understanding that had been stated, it became the property of the plaintiff, from the time it was rejected by the bank, and that although no evidence of its actual payment by him, had been given, he was entitled to recover its whole amount, with interest, in the present suit, if the defendants were guilty of the unlawful conversion that was charged, and the plaintiff had not by his subsequent conduct ratified and approved their acts. That upon the supposition that the plain- • tiff was the owner of the note, the defendant, Mathews, was certainly liable, if he had obtained possession of the note surreptitiously, without the knowledge of Jones, and Jones had not assented to its discount at the Bowery bank, and that he (the judge) was also of opinion, and so instructed the jury, that Mathews was liable, even should the jury believe that the note had been delivered to him by Jones himself, if at the time of such delivery he knew that the note belonged to Decker, to whom Jones was bound to return it; and that Mathews was chargeable with this knowledge, if he knew that the note had been given for the sole purpose of being discounted by the Manhattan Bank.”

The judge submitted to the jury, four several questions of fact, to be determined by them, in addition to rendering a general verdict. The jury found a verdict for the plaintiff, against the defendant Mathews, for $2850 97, being for the amount of the note, with interest, and also found a verdict in favor of the defendant Gardner. Upon the four questions submitted, the jury found, as follows, viz.:

I. The jury believe that the plaintiff was the owner of the note, at the time of the alleged conversion. II. The jury believe, that the note was taken from the possession of James Jones, by the defendant, Mathews, without the knowledge and consent of the plaintiff, or of either of the parties in the firm of James Jones & Co., and that the proceeds were applied by the defendants to their own use, Gardner not being aware, at the time, of the circumstances under which the note was procured. III. The jury believe that it was known to the defendant Mathews before discount, that the note had been made for a specific purpose, which having failed, the note had become the property of the plaintiff. IV. The jury believe, that the plaintiff did not consent, expressly or otherwise, that the note in question should remain in bank for discount after it had been first presented.

The counsel for the appellant contends, that the note, according to the case made by the complaint, had no validity at the time of the alleged taking of it by Mathews, that up to that time it had not had any legal inception, that it was not a subject of theft, could not be made a donatio causa mortis, and was, in truth, a legal nonentity, a mere scrap of waste paper, having no value in fact or in law, and, therefore, that enough is not stated in the complaint, to constitute a cause of action.

The answer to this is, that it is the misuse, or unlawful disposition of the note, which constitutes the cause of action. The complaint avers, that the defendants have “ converted and disposed of the note to their own use.” This expression is equivalent to saying, that they have negotiated it for their own benefit. They could not have disposed of it to their own use, without negotiating it for value received, or in discharge of a liability. If negotiated to a bond fide endorser, for value paid for it, it would be valid in his hands, and collectable at his suit. The complaint is, that they wrongfully took it, disposed of it, to their own use, and have, up to the commencement of the suit, neglected and refused to restore it to the plaintiff. This is sufficient to constitute a cause of action.

The plaintiff is entitled to retain his judgment, either upon the general verdict rendered, or upon the specific questions of fact, submitted to the jury, as found by them.

There are several adjudications directly in point, with only this difference, that in most of the cases reported, the plaintiff had taken up his note before bringing his action. It .has been held, that trover would lie, notwithstanding the plaintiff had repossessed himself of his note before suit brought. In Murray v. Burling, 10 J. R. 172, which was an action of trover by the maker of a note, the defendant was in the position of the defendant in this suit, except that, in that case, Burling received it from Swan, for whose accommodation it had been made, for the express purpose of procuring it to be discounted and giving the proceeds to Swan, for the plaintiff, instead of doing which, he immediately negotiated it to Minturn & Champlin, in payment of a debt, due to them from Burling & Swan, of which firm, the defendant Burling was a partner. Minturn & Champlin had the note discounted at the Mechanics’ Bank, and before bringing his action, the plaintiff paid and took it up. A non-suit was moved and granted, on the ground, that under the circumstances, stated on opening the cause, an action of trover could not be supported. On a motion to set aside the nonsuit, and for a new trial, the court said, “ the note went into the defendant’s • hands, as the plaintiff’s property, and it is the misuse, or disposition of it, contrary to orders, that constitutes the cause of action. It is no answer, to say, that the plaintiff has a remedy, by an action, for the money. There are many cases in which a party has an election of actions ; as if I intrust a man with my horse to ride, and he sells him, I may bring trover against him for the horse, or affirm the sale, and bring an action for the money. The defendant comes with an ill grace, to turn the plaintiff round to another form of action, which may better accommodate his own views. It is a sound maxim, that no man shall found any claim or defence upon his own iniquity. There cannot be a doubt, that the defendant is liable in some form of action, and we see no objection to maintaining trover. The court are of opinion, that the nonsuit ought to be set aside.” Whatever those, who think the code crude, and ill adapted to the exigencies of a judicial system, equal and suited to the wants of the present day, may justly allege against some of its. provisions, it can fairly be said of it, that it saves a party, having a good cause of action, from being turned out of court, merely because his declaration is in the formal phraseology required in an action of trover, when it should have been in form, one for “ money had and received to the plaintiff’s use,” or vice versd.

The plaintiff has stated the actual facts of his case, and if they entitle him to recover, no embarrassment arises from having mistaken the form of action adapted to the particular case. In Murray v. Burling, the defendant came rightfully to the possession of the note, and the only wrong was, his unauthorized disposition of it. In this case, the taking of the note by Mathews, as well as his disposition of it, was tortious. His conduct, according to the verdict of the jury, was fraudulent throughout, and his case does not entitle him to the favor of the court. He has a right, however, to a just application of the settled rules of law to the facts of the case.

In Buck v. Kent (3d Ter. R. 99), Evans v. Kuyler (1 Barn. and Ad. 528), the plaintiff recovered in trover, for the conversion of notes, of which he was the maker: the notes had no inception until the misappropriation of them by the defendant. In Buck v. Kent the plaintiff had taken up his note before he brought his suit. It was contended in that case that the plaintiff should not have paid the note, but should have submitted to a suit and defeated a recovery. The court said that “ the defendant by disposing of the note determined its value. He considered it of value, and as such converted it to his own use, and the principles of law will justify the plaintiff in considering it in the same view, and will give to him a compensation for this conversion.”

In Ewart v. Kerr (2 McMullan 141), the court of appeals held that “ where the thing converted is reduced to money in the hands of the defendant, the smallest measure of damages is always the amount so received with interest from the time of the. conversion.”

It appeared in this suit, that the note was discounted by the Bowery Bank, on the 4th of January, 1848, and $2,330 was paid by the bank on the discount of it. That the bank had sued Decker on the note, and on the 2d of November, 1849, recovered a verdict against him and other parties to the note for $2,629 61, the amount of the note and interest to that date. What had been done subsequently to the verdict was not shown. The principle applied in Ewart v. Kerr would make the defendant liable for the amount of the note and interest. A wrongdoer is not permitted, as between himself and one whose property he has converted to his own use, to profit by his own fraud. He cannot complain of being compelled to pay to the owner of the property, as much as he received for it in cash on converting it. In this case the recovery was for only the sum received by Mathews for the note, at the time he disposed of it, with interest, to the time of the verdict. In Evans v. Kuyler the plaintiff had not taken up his acceptance before suit brought, and yet he recovered the full amount of it.

If any third party had been the owner of this note at the time of its conversion, in a suit by such owner, the measure of damages would be, the amount of the note and interest (Ingall v. Lord, 1 Cow. 240; St. John v. O'Connell, 7 Porter 466; Powell v. Hyland, 2 L. & Equ. R. 362), unless insolvency of the maker, or payment, or the invalidity of the note, should be shown. The rule of damages stated to the jury, was the proper one in this case.

The requests to the judge to charge the jury, so far as they were material and not fully covered by the charge made, were met by the specific questions of fact submitted to the jury, all of which they found against the defendant. The exception taken to the charge, was to it as a whole. Such an exception does not bring up any particular remarks made by the judge, or any omission in such charge, unless the attention of the judge was directed to the point at the time. It is evident from the bearing of the charge, that the judge was not understood to have instructed the jury, that if “ Mathews knew that the note had been given for the sole purpose of being discounted by the Manhattan Bank,” he was liable on that ground alone, even if they should not also find that the note was the property of the plaintiff, at the time it was taken by Mathews, and that it had been made for the specific purpose of having its proceeds applied tq taking up other notes, on which the plaintiff was an accommodation endorser.

The answer of the jury to the questions specially submitted to them, shows that the defendant has not been prejudiced from any omissions in respect to this point,

The verdict cannot be said to be against the weight of evidence. Tt is true the witnesses on the one side expressly contra-' dieted some called on the other. But the jury have believed the plaintiff’s witnesses, and the question of their relative credibility was One which it was particularly their province to determine (Beforl v. Drake, 19 J. R. 68).

The judgment appealed from must be affirmed with costs.

         An exception to an entire charge is unavailable if any part of the charge is correct. The addition of the words, “ and to each part of it,” makes no difference, Jones v. Osgood, decided in the court of appeals, April 16, 1862.


source: Caselaw Access Project

author: Sandford, J.

license: Public Domain

text:
    Augustus W. Clason v. Charles G. Corley.
    The owner of the equity of redemption in lands mortgaged, is entitled to the rents which become due down to the period when the purchaser, under the-decree of sale, becomes entitled to the possession of the lands, which right accrues upon the production, to the occupant of the premises, of the master’s or sheriff’s deed, and a certified order confirming the report of sale after it has become absolute.
    Where the tenant becomes the purchaser of the mortgaged premises, upon a foreclosure sale, the question of right, as between him and his landlord, is the same as if a stranger had become the purchaser.
    The defendant was the lessee from the plaintiff, of certain premises, which were subsequently, during the existence of the lease, sold under a decree of foreclosure. The premises were purchased at the foreclosure sale by the defendant, on the 22d of March, and the terms of sale complied with by a tender of the purchase money on the 5th of April, the day mentioned in the terms of sale for the delivery of the deeds. Owing to the neglect of the plaintiff in the foreclosure sale, in not having the decree of sale enrolled, the deed was not, in fact, delivered until the 2d of May thereafter,- and the order of confirmation entered on the 24 th of May.
    In an action by the plaintiff to recover the quarter’s rent, due May 1st,

      Held, that the defendant’s purchase under the foreclosure sale, and his tender of the price, did not operate to transfer a legal or equitable title to the premises prior to the rent’s falling due, and that he was therefore liable for such rent.

      Held,, also, that the subsequently acquired title of the purchaser could not operate by way of relation, so as to divest-the plaintiff’s right to the rent.
    The doctrine of relation, though a favorite one, where, without it, injustice will ensue, or fraud be upheld, is never enforced to divest an intervening legal right not. inferior in point of equity to the one sought to be substantiated by the application of the doctrine, nor where its application will be inequitable.
    "The remedy of a purchaser at a foreclosure sale, where the deed is not ready at the time fixed for its delivery, is by motion for leave to pay the money into court, or to compel the completion of the sale.
    (Before Sandfokd, Dues, & BoswortB, J. J.)
    April 6;

    May 8, 1852.
    This was an action on a case submitted by the parties, embracing the following facts :
    F. Kain being seized of the corner of Greenwich and Reade streets mortgaged it, and died. He left a widow, brother, and brother’s children. The plaintiff bought the interest of the brother in 1844. The owners hired it to the defendant from May, 1847, to May, 1848, at $550 per annum. The defendant paid up to February, but refused to pay the May quarter, for the following reasons. The above mentioned mortgage was foreclosed and the usual decree of sale (to which the owners were parties, and to which the defendant was not a party) was entered. The lot was put up at auction by the sheriff, on the 22d March, 1848. Terms of sale .in substance, 10 per cent, of purchase money to. be paid at the time and place of sale, residue to sheriff at the office on the 5th April, 1848, when deed would be delivered. Sheriff not to be required to send notice to purchaser, upon whose neglect to call as above specified, to receive his deed, interest would be charged upon the whole amount of the purchase money, unless the sheriff chose to extend the time for completion. The lot was sold to the defendant for $7,050, its full value. He paid the 10 per cent., executed contract, and on the 5th of April, tendered to the sheriff, at his office, the purchase money, and demanded the deed. The decree was not enrolled till the 2d of May, on which day the sheriff executed the deed, delivered it to the defendant, and received from him balance of purchase money. Order of confirmation entered 24th May, 1848. The amount of rent was $45 85, which the plaintiff claimed, with interest, from 1st May, 1848.

      A. W. Clason, for the plaintiff.
    I. Foreclosure and sale are statute proceedings, and are consummate by the delivery of a deed. (2 R. S. 255, § 208.)
    II. Corley, the tenant, occupied during his full term. He cannot deny the title of his landlord. Í
    III. If Corley, the purchaser, be injured by the delay, the plaintiff is not in fault. He had no control over the action of the mortgagee.
    IY. Reason and law are equally opposed to the defence the tenant interposes. (Gates v. Smith, 4 Edw. V. C. R. 702; Astor v. Turner, 11 Paige 436; Strong v. Dollner, 2 Sand. S. R. 444; Fuller v. Van Geesen, 4 Hill 171; Giles v. Comstock, 4 Coms. 214.)

      H. L. Hiker, for the defendant.
    I. By the terms of the sale and by operation of law, the purchaser was entitled to recover the rent payable May 1st, 1848. And he is therefore entitled to it, although he did not receive his deed until May 2, 1848. (Astor v. Turner, 11 Pai. R. 431; Giles v. Comstock, 4 Com. R. 276; Strong v. Dollner, 2 Sand. Sup’r R. 448.) The legal presumption is, that Corley purchased in reference to such right, and gave more for the premises on account of such rents and profits. (11 Pai. R. 431.)
    II. Tender on the day fixed is a legal payment, so far as to protect the rights of the purchaser, in the same situation as if an actual payment had been made. The purchaser having tendered the purchase money on the day fixed by the terms of sale for him to pay the balance and receive his deed, became, from that time (April 5th, 1848). the legal and equitable owner of the premises, and as against the parties to such foreclosure suit (the plaintiff being one), might have intercepted the rents falling due afterwards. The rule of the English court of chancery is, that the purchaser is entitled to the rents from the quarter day next prior to the payment of his purchase money. (Strong v. Dollner, 2 Sand. Sup’r R. 449, and cases cited.)
    III. The purchaser having done all in his power to close the sale and receive his deed on the day fixed, is entitled to the benefit of the rule of equity, “ That what ought to be done at a certain' day; shall be considered as done.” (Klock v. Cronkhite, 1 Hill 110; Lathrop v. Ferguson, 22 Wend. 119, 120; Nellis v. Lathrop, 22 ibid. 132; Demarest v. Wynkoop, 3 John. C. R. 146.) And therefore, by the doctrine of relation, Corley was the legal and equitable owner of the premises from April 5,1848, the day fixed by the terms of sale for the payment of the balance of the purchase money and for the delivery of the deed ; he having, on that day, tendered the purchase money and .demanded his deed. Relation goes back to the time when the deed might have been demanded, and beyond its date. (1 Hill, 110; 22 Wend. 122; 3 John. C. R. 129; Jackson v. Bull, 1 John. C. 81.)
    IV. The decree of foreclosure, and the sale by the master, extinguished the equity of redemption. (3 John.C. R. 129; 7 ibid. 45.) And payment on the day fixed for the delivery of the deed, vests the legal and equitable estate in the purchaser. (1 Hill, 110; 22 Wend. 122.) Corley’s rights as tenant, and Ciason’s rights as lessor, were extinguished by the foreclosure and sale. (Simers v. Saltus, 2 N. Y. Legal Observer, 180; and appeal 3 Denio 214; 22 Wend. 121.)
   By the Court.

Sandford, J.

Although the tenant became the purchaser of the premises, at the sheriff’s sale, the question of right, between him and his landlord, is the same as if a stranger had purchased the premises, and the tenant, having attorned to him, had set up his title against the landlord’s demand of the rent.

There was, certainly, no eviction, either actual or constructive, till after the quarter’s rent became due. (See Giles v. Comstock, 4 Comst. 275; Astor v. Turner, 11 Paige, 436.) The case, therefore, turns on the point, whether the purchaser, before the rent fell due, had acquired such a title, that he could claim the rent or require the tenant to attorn to him.

In Strong v. Dollmer, 2 Sand. S. C. R. 444, we held that the bid at the sale, its acceptance by the master, and the payment of the ten per cent, of the price required at the sale, wrought no change in the title, even in equity. In this case, the purchaser, in addition to these acts, on the day fixed for that purpose, in the terms of sale, tendered to the sheriff, (now substituted in these sales for the master in chancery,) the residue of the purchase money, and demanded a deed. In the case cited, we observed, that if the purchaser had paid the price to the master, on the day fixed for that purpose in the contract, he would from that time have been the equitable owner of the premises, and as against the -parties to the foreclosure, might have intercepted the rents falling due afterwards ; and it is supposed that this case falls within our observation.

The difficulty, in the application of the proposition, lies in the fact, that the purchaser took no steps to intercept the rent. He remained quiescent, until the plaintiff’s legal right to it became fixed and absolute. He should have followed up his tender by a motion, to the court, to pay his money into court, or to compel the completion of the sale on the part of the plaintiff, in the foreclosure suit, whose delay to enrol the decree of sale, was, it seems, the cause of the sheriffs omission to execute the deed. On such a motion, on notice to all the parties, in interest, the court would have adjusted the equities of all, and made the loss, arising from the delay, to fall where it should have fallen, on the party whose negligence caused it. If the court had ordered the tenant to attom to the purchaser, it would at the same time have directed, that interest on the mortgage debt should cease from the day when the purchase money was tendered ; or, leaving the now plaintiff to recover his rent, and the debt to bear interest until payment, it would have ordered the plaintiff, in the foreclosure, to pay interest to the purchaser, on the money tendered and kept in readiness for the sheriff. As the fault was not at all imputable to the now plaintiff, who, as a defendant in the foreclosure, had no control of the proceedings under the decree, the court, on the motion suggested, would have protected his rights, which it is impossible to do.in this collateral suit, if the defendant’s view of the law is correct. As he claims the law to be, the whole loss will fall on the present plaintiff. The sale and tender cut off his right to the rent, while the delay in enrolling the decree and executing the deed, cut off, in the same ratio, the surplus, which he might have expected, as the owner of the equity of redemption. The interest continued to run on the mortgage debt, until the purchaser’s actual payment, on -the delivery of the sheriff’s deed, thus consuming the purchase money, which represented the present plaintiff’s estate in the land ; while the plaintiff was deprived of the rents, and profits, by the equitable title which rested in the purchaser, on making his tender.

The statement of the consequence is enough to show that the defendant’s claim is not just. It is certain that no legal title vested in the purchaser until he received his deed. The question then is, did that title operate by relation to cut off the landlord’s claim for the intermediately accruing rent, or did the' purchase and tender give to the purchaser a valid equitable title to the premises from the time of the tender ?

We think the law is well settled, that the owner of the equity of redemption in lands mortgaged, is entitled to the rents which become due, to the period when the purchaser under the decree of sale becomes entitled to the possession of the lands. The interference by way of a receiver, in the instance of inadequacy of the security, and insolvency of the party personally liable for the debt, does not impair the rule; it admits its force. Now when does the purchaser become entitled to the possession ? The practice of the court of chancery, continued by its successors, and the terms of the usual decree of sale, show that the purchaser under such a decree can demand possession, only upon the production to the occupant, of the master’s (or sheriff’s) deed, and a certified copy of the order confirming the report of the sale after it has become absolute. In this case the order of confirmation was entered on the 24th of May, it became absolute in eight days, and it was therefore not until the 2d of June, more than a month after the rent became due, that the purchaser was in a condition to demand the possession of the premises. Even then, the purchaser, if a stranger, could not have turned this defendant out of possession, because he was not a party to the foreclosure suit; but the latter could at that date have safely yielded the possession to the purchaser. The statute vests the estate in the purchaser, upon and by force of the execution of the master’s deed (2 R. S. 192, § 158), and the court does not interfere to compel a delivery of the possession, until the master’s report of sale, which in foreclosures follows the execution of the deed, has been duly confirmed (Brown v. Frost, 10 Paige 247).

In partition suits, the practice requires the sale to be reported to the court, and confirmed, before a deed can be given. In such cases it has been held, that after the sale has been regularly confirmed, and the purchase money paid, the equitable title thereupon vests in the purchaser, although the execution of the deed does not take place on such payment. (Gates v. Smith, 4 John. Ch. R. 702.) The practice in suits for partition, is like that in England, in all sales under decrees of the court of chancery, and the contract of sale is not deemed complete, until the master’s report of the sale is absolutely confirmed, (1 Sugd. on Vend. 58; 2 Dan. Ch. R. 909, 917,) and until such confirmation, the purchaser is not considered, even in equity, as entitled to the benefit of his contract. As the conveyances under foreclosures, as well as other sales upon decrees, are, in England, made by the parties, and not by the master, there is, in that respect, no analogy between the practice there, and here. But, in respect of a tender of the purchase money, it is there unavailing to affect the right to the accruing rents. The purchaser must pay his money into court, and apply to have it invested. (2 Dan. R. 913.)

The case of Fuller v. Van Geesen, (4 Hill, 171,) is an authority to show that the order of confirmation, after a deed under a chancery foreclosure, relates back to the delivery of the deed, so as to make it effectual from its delivery ; but there is no case to be found, where a relation back to the time when the sale ought to have been completed, there being neither a deed executed, nor an order of confirmation at that time, was ever adjudged or admitted, here, or in England. The equitable maxim resorted to, does not apply. It cannot be said, in the sense of that maxim, that the deed ought to have been delivered on the 5th of April, because, until the action of the court through its officers, either by executing a deed, or otherwise confirming the sale, there was no complete contract between the ■ purchaser and the court.

And to recur to the doctrine of relation, though it is a favorite one, where, without it. injustice will ensue, or fraud be upheld, it is never enforced to divest-an intervening legal right, not inferior in point of equity, to the one sought to be substantiated by the application of the doctrine, nor where its application will. be inequitable. One of the authorities cited by the defendant, (Lathrop v. Ferguson, 22 Wend. 116,) shows that it should not be applied against the plaintiff, who neither had, nor exercised, any control in preventing the delivery of the sheriff’s deed, and who acquired in the .mean time a prior, executed, legal right.

In fine, the plaintiff shows a clear legal right, to recover this rent; the defendant’s purchase under the foreclosure, and his tender of the price, did not operate to transfer to him an equitable title to the premises, prior to the rent’s falling due ; and there is no legal or equitable ground upon which we can give effect to his subsequently acquired title, by relation to the time of the tender, so as to divest the plaintiff’s right to the rent.

Judgment for the plaintiff.


author: Duer, J.

text:
    The Same v. The Same.

      Held, that the residence of a defendant within the circuit of a judge, was alone sufficient to give him jurisdiction in an equity suit, although neither the cause of action had arisen, nor was the subject matter in controversy situated within his circuit.
    The three classes of cases in which an equitable jurisdiction was given, are dis- • tinct and separate, so that the existence, within a circuit, of any one of the facts upon which the jurisdiction was made 'to depend, was sufficient to justify its exercise.
    An amendment of a bill 'in equity not altering the title of the plaintiff to the relief sought, nor the nature or terms of the relief, is to be regarded as merely formal.

      Held, that; such .an amendment, where the bill had been taken as confessed by a defendant, did not render a subsequent decree against him irregular and void, although he had no notice of the motion to amend, nor was any copy of the amended bill served on him.
    Judgment at special term affirmed with costs.
    (Before Saxbford. Dure, & Bosworra, J. J.)
    April 6;
    May 8th, 1852.
    This was an action of ejectment. It appeared that Francis Kain, being the owner of an undivided one-half part of premises situate the corner of Greenwich and Reade streets, mortgaged the same, and afterwards died intestate. . The undivided half of the premises claimed in this action, descended to his brother, William Kain, subject to the dower of the-widow of the said Francis Kain, and to the payment of the said mortgage.
    William Kain conveyed his interest to Augustus W. Clason, the plaintiff.
    In December, 1846, Mary Ver. Yeelan, surviving executor of Henry Ver Yeelan, deceased, being the holder of the mortgage, filed her bill to foreclose the same before the vice chancellor of the second circuit, against A. W. Clason, the plaintiff in this suit, who, with other defendants to the foreclosure suit, resided in the second circuit, which suit ivas afterwards transferred from the vice chancellor’s court to the supreme court of the State of New York, in equity.
    The original bill did not state the residence of the defendants. It was taken as confessed by the defendant (the plaintiff in this suit), for want of his appearance after service of the subpoena upon him. The bill was afterwards amended, by stating the place of residence of the defendant, A W. Clason, and others residing in the second circuit.
    A decree of foreclosure and sale was afterwards made, and the property purchased by the defendant to this action, who received his deed, and entered into possession of the premises in May, 1848.
    The plaintiff commenced this suit in May, 1851, and the defendant set up the decree obtained in this foreclosure suit and his deed, in bar thereto.
    The cause came on to be tried before Mr. Justice Paine, at special term, on the 9th day of January, 1852, when, by consent, the following admissions were made :
    1st. That the plaintiff was seized in fee of an undivided half of the premises, as set out in the complaint, subject to the mortgage from Kain to Yer Yeelan, and to the right of dower of Henrietta Kain.
    2d. That the plaintiff in this action was one of the defendants in the foreclosure proceedings set up in the answer of C. G. Corley ; that he resided in Westchester county before, at, and since the time the foreclosure suit was commenced, and that some of the other defendants resided in Westchester county, and some in New York city.
    3d. That the original bill of foreclosure did not, on its face, show the residence of the defendants.
    4th. That such bill was taken as confessed against the said Augustus W. Clason, for want of appearance in said foreclosure suit.
    5th. That after such bill was taken as confessed, the complainant, in the foreclosure suit, amended the bill by stating the residence of the defendants in the county of Westchester. That the proceedings in the foreclosure suit went on without any notice to the said Augustus W. Clason, who had not appeared in the suit, and against whom the bill had been taken as confessed, and proceeded to the decree of sale.
    6th. That the mortgaged premises were situated in the county of New York.
    Both parties rested, and the defendant's counsel moved to dismiss the complaint, which the learned judge granted.
    The plaintiff's counsel thereupon excepted.
    The cause now came before the court on appeal.

      W. C. R. English, for the appellant, made and argued the following points:
    I. The appellant is not a party to the decree of foreclosure.
    1st. An order pro confesso is part of the ordinary process of the court to effect justice, and was properly taken against the appellant, but such process fell by reason of the amendment.
    2d. By our practice an amendment may be made, under general rules, at the peril of the party, and it is subject to the same analogies as in England, where the practice is to ask the court for permission. There, it will only be allowed to issue when it is clear that it cannot prejudice a party ; if it may prejudice him, interlocutory process falls (1 Hogan, 106, 149, 217; 2 Cox, 411).
    3d. The appellant was prejudiced by the amendment, because, upon the original bill, the court would have refused to make a decree, for the record not only showed no jurisdiction, but exclusive jurisdiction in another (6 Vesey, 685; Mitford, § 44; 1 Bland R. 255).
    4th. The record should show the jurisdiction of the vice chancellor, his is a limited jurisdiction (Hoffman C. P. p. 2; 3 Dallas, 382).
    5th. A defendant may lie by, or demur, but is not concluded by silence (9 Cowen, 229).
    6th. The amendment, after taking a decree pro confesso, was & fraud upon the court and the defendant.
    7th. The fraud is a mere question of law upon admitted facts, and a court of law can pronounce the decree void.
    II. The vice chancellor of the first circuit had exclusive jurisdiction.
    1st. The rules of construction are, that the object of a statute is to be regarded, that the various parts are to be construed so as to form one harmonious whole ; in case of repugnancy between several provisions, such construction is to be adopted, as will best reconcile the language with the spirit of the statute ; where an order of events is laid down, such order must be Strictly observed in cases where its neglect would create a conflict of jurisdiction (2 R. S. 97).
    III. The statute contemplated two cases of exclusive and one of concurrent jurisdiction.
    1st. Under the first and second clauses, neither a cause of action nor a subject matter of controversy can by the nature of things be in but one circuit, and but one vice chancellor can have jurisdiction, but by the third clause eight vice chancellors have jurisdiction. The last, therefore, is a subsidiary clause, and must be so construed.

      H. L. Riker, for the respondent, made and argued the following points :
    I. The decree of foreclosure and sale in Ver Veelan v. Kain, Augustus W. Clason, and others, is binding by way of estoppel until reversed (Fuller v. Van Geesen, 4 Hill R. 176; Davoue v. Fanning, 4 J. C. R. 203; O’Brien v. Heeney, 2 Edward R. 246).
    I. This decree cannot be inquired into in this collateral action (Fuller v. Van Geesen, 4 Hill R. 176; Murray v. Murray, 5 J. C. R. 60 and 69; Davoue v. Fanning, 4 J. C. R. 203; Bennet v. Winter, 2 J. C. R. 205).
    2d. It cannot be questioned by Augustus W. Clason, the plaintiff in this action (he being a party to this decree), except by a bill of review (Elliot v. Pell, 1 Paige R. 268; O’Brien v. Heeney, 2 Edwards R. 246; Frost v. Myrick, 1 Barb. Sup. R. 369; Davoue v. Fanning, 4 J. C. R. 203; Gelston v. Codwise, 1 J. C. R. 195).
    3d. If erroneous, it cannot be attacked collaterally in an action of ejectment against the. purchaser (Clarke v. Van Surlay, 15 Wend. 448; and on appeal, 20 Wend. 365).
    II. Courts of law will not examine into the merits of a decree of the court of chancery, under which a judicial sale has been made in a subsequent suit between a party to such decree and a stranger, a bond fide purchaser under the decree—but will leave the party to his relief in a court of equity, where ample justice can be done to all (Clarke v. Van Surlay, 15 Wend. R. 448).
    III. The decree cannot be impeached, even by third parties in a suit, in which the decree is admissible evidence (Murray v. Murray, 5 J. C. R. 60). Except for fraud, which- is not pretended in this case: or want of original jurisdiction of the court making the decree (Borden v. Fitch, 15 J. R. 134; and cases cited).
    IY. The circuit judge of the second circuit had jurisdiction, concurrently with the chancellor, of the foreclosure- proceedings, from the fact that Augustus W. Clason (the plaintiff in this action), and several other of the defendants, resided within the limits of the second circuit, at the time the foreclosure suit was commenced (2 R. S. 226, § % Subdivision 3; Brown v.
      Brown, 1 Barb. Ch. R. 189, 213, and 216; Burckle v. Eckhart, 3 Denio R. 282; and on appeal, 3 Com. R. 131; Cromwell v. Cunningham, 4 Sand. Ch. R. 384; Bank of Orleans v. Skinner, 9 Paige R. 308; Varick v. Dodge, ibid. 150; Bicknell v. Field, 8 Paige R. 443; Exr. of Burling v. Livingston, &c., case of foreclosure of land at Utica, some of the defendants residing in the first circuit, John F. Mitchell, Esq., for compt., brought suit before V. C. of the first circuit in April, 1843; Collins v. Hawks, &c., foreclosure of lands in second circuit, some of the defendants residing in the first circuit; George T. Strong, Esq., for complainant, brought suit before V. C. of first circuit, in May, 1843).
    And that circuit judge (or vice chancellor) before whom a suit is once properly brought, acquires jurisdiction, exclusive of all other vice chancellors (Burckle v. Eckhart, 3 Com. R. 136; Brown v. Brown, 1 Barb. Ch. R. 215; Paff v. Kinney, 1 Brad. Surr. R. 6). And exclusive of the chancellor- (6 Paige R. 105, and cases cited. In the matter of the Rec’rs of the Globe Ins. Co.)
    1st. Jurisdiction is a matter of fact, and although the fact does not appear on the face of the bill of complaint, may be proved (Burckle v. Eckhart, 3 Com. R. 137).
    2. No jurisdiction appearing on the face of the bill of foreclosure, was ground for demurrer (Varick v. Dodge, 9 Paige R. 151; McElwain v. Willis, 3 Paige R. 506; On appeal, 9 Wend. R. 561; Cooper’s Pl. 5, 181).
    The amendment of the bill, stating the residence of Clason and others, cured this defect (Bank of Orleans v. Skinner, 9 Paige R. 309, 310; McElwain v. Willis, 3 Paige R. 508).
    3d. The vice chancellor’s court was a court of general jurisdiction (Foot v. Stevens, 11 Wend. R. 483).
    4th. The decree in Van Veelan v. Kain, &c., having been made by a.court of general jurisdiction, its jurisdiction will be presumed, until the contrary is expressly shown by the opposite party (Bloom v. Burdick, 1 Hill R. 139, 141; Foot v. Stevens, 17 Wend. R. 486; Hart v. Seixas, 21 Wend. R. 46; Shumway v. Stilman, 4 Cow. R. 296; Davis v. Packard, 6 Wend. R. 332; Clarke v. Van Surley, 15 Wend. R. 448).
    V. The want of notice to Augustus W. Clason, of the amendment of the bill of foreclosure, is a point of practice which cannot be inquired into in this action (Clark v. Van Surlay, 15 Wend. R. 448).
    1st. Even if it could be inquired into here, Clason was not entitled to notice, he not having appeared in the foreclosure suit (Hoff. Ch. Prac. 300; Ch. Rule 43, of 1844).
    2d. The bill being amended before his appearance, is, as far as Clason is concerned, considered as the original bill.
    VI. Corley is. assignee of the mortgage to Van Veelan, and being in possession of the mortgaged premises, this action will not lie (Olmsted v. Elder, 2 Sand. R. 328; Arnot v. Post, 6 Hill R. 67; Fort v. Burch, 6 Barb. R. 76; Phyfe v. Riley, 15 Wend. R. 248; Van Dyne v. Thayre, 14 Wend. R. 236; Jackson v. Bowen, 7 Cowen R. 13; Jackson v. De Lancy, 13 J. R. 537; Jackson v. Minkler, 10 J. R. 480).
   By the Court.

Duer, J.

Nearly the entire argument, on the part of the plaintiff, rests upon the assertion that the vice chancellor of the second circuit had no jurisdiction of the suit in which the decree of foreclosure and sale was pronounced, and, consequently, that the decree itself, and all the proceedings under it, are wholly void.

It is useless to consider whether, even, upon the supposition that the decree was invalid, the plaintiff would be entitled to recover in the present suit, since we are clearly of opinion, that the single fact that some of the defendants resided within the circuit of the vice chancellor, who made the decree, was sufficient to maintain his jurisdiction.

It must be admitted, that if the words “ concurrently with the chancellor, and exclusive of any other circuit judge,” in that section of the revised statutes (2 R. S. p. 168, § 2) which defined the equitable jurisdiction of the circuit judges, must be understood as meaning, that, in all cases, at the time of the commencement of a suit, the jurisdiction, concurrent with that of the chancellor, could only belong to a single judge, the objection .to the jurisdiction, which has been pressed upon us, (as the subject matter in controversy was in this city,) would be unanswerable and fatal; but this construction of the words in question would be directly repugnant to other provisions in the section ; nor is a resort to it, at all, necessary to explain the introduction of the words and satisfy their meaning. They may be so construed as to give to the entire section a reasonable and consistent interpretation.

The statute declares that every circuit judge within the limits of his circuit, shall have jurisdiction, concurrently with the chancellor and exclusive of any other circuit judge, in all causes and matters in equity, in the following cases :

1. When such causes or matters shall have arisen within the circuit of such judge ; or,

2. When the subject matter in controversy shall be situated within such circuit; or,

3. When the defendants or persons proceeded against, or either of them, reside within such limits.

The construction which we adopt, is, that the classes of causes here enumerated are distinct and separate, so that a circuit judge, before whom an equity suit was brought, might rightfully exercise jurisdiction, if the case could be justly referred to any one of them ; in other words, if the existence, within his circuit, of any one of the alternative facts, upon which the jurisdiction is made to depend, could be truly averred.

It is obvious, that upon this construction, several judges might have had an equal right to entertain the suit before it was brought, and the jurisdiction be rendered exclusive only by its actual commencement, since the cause of action might have arisen within one circuit, the subject matter in controversy be situated within another, and the defendant reside within a third. It seems to us, equally clear, that the terms of the law allow no distinction to be made between the alternative facts, as to their effect in conferring jurisdiction, but compel us to say, that if the jurisdiction might be exercised by a judge within whose circuit the subject matter in controversy was situated, although neither the cause of action had arisen, nor was the defendant residing within it, the fact of such residence, independent of other circumstances, would equally avail to confer the authority. In other words, residence is just as plainly stated as a distinct, substantive ground of jurisdiction, as the origin of the causes of action, or the locality of the subject matter.

If the construction, which has been stated, is rejected, there is only one other, as it seems to us, that can be adopted. It must be held, that no circuit judge could in any case acquire jurisdiction, unless by a concurrence of all the facts which are specified as conditions of its exercise ; that is, unless the cause of action had arisen, and its subject matter was situated, and the defendants, or one of them, resided within his circuit. To effect this, the three classes of cases, which the statute has so plainly distinguished, must be resolved into one, and the disjunctive “ or,” by which they are separated, be stricken out, and the connective “ and ” be substituted. We think, however, that so material an alteration of the words of the law, would be gratuitous and arbitrary. We are aware, that in the construction of a statute, as well as of a will, “ and may in some cases be substituted for “ or,” and vice versa, but this can never be done, unless the change is necessary to carry into effect an intention, which is shown, from other provisions, to be manifest and certain. We are by no means satisfied in-the-present case, that the intention of the legislature was such as to require the alteration. On the contrary, we are persuaded that the legislature could not have intended to restrict the equitable powers of the circuit judges, within such narrow limits, as the alteration, if made, would certainly have imposed. We are persuaded, that the legislature intended that, in every case, a jurisdiction concurrent with that of the chancellor, should belong to one, at least, of the judges, and cannot, therefore, admit a construction, which, in a very large proportion of cases, would have rendered his jurisdiction, not concurrent, but exclusive. It was in order to relieve the chancellor, that equity powers were vested in the circuit judges, and so far as the terms of the statute may admit,it is this intention that courts have been bound to effectuate.

It is said, however, that the construction upon which we have insisted, however reasonable it may seem, is not to be reconciled with the terms of the statute, and cannot, therefore, be admitted. It is contended, that by adopting it, the declaration that the jurisdiction of each circuit judge, in the specified cases, shall be exclusive of any other judge, will be rendered ineffectual and void ; and that in judging of the intent of the legislature, it is far more reasonable that “ or ” shall be construed “ and,” than that the significant words which contain this decíaration, and which could only have been inserted upon deliberation, shall be wholly expunged.

That the words in question have created some difficulty in the construction is not to be denied, since it is not readily understood in what sense q jurisdiction can be deemed exclusive, which several judges may, at the same time, be equally competent to exercise. The reply to the objection, given upon the argument, was that the jurisdiction was meant to be exclusive only when it had attached by the commencement of the suit, and that the words “ exclusively of any other judge,” refer to its actual exercise, not to an antecedent right. Although we were at first disposed to acquiesce in this reply, we own, that upon further reflection we have been led to doubt its sufficiency. It was certainly not necessary to declare that the jurisdiction, thus interpreted, should be exclusive, since in all cases a jurisdiction which, previously to its exercise, is concurrent, in several judges, becomes exclusive in him before whom the suit is actually brought. It is exclusive as soon as it attaches, and in this sense the equitable jurisdiction of each circuit judge was just as exclusive of that of the chancellor himself, as of that of any other judge (6 Paige 105. In the matter of the Globe Ins. Co.).

The statute, however, declares that the jurisdiction of every circuit judge as a vice chancellor, shall be concurrent with that of the chancellor, which necessarily means “ concurrent ” as an existing right, prior to its actual exercise, and it seems a just conclusion that the jurisdiction which is declared to be exclusive, refers to the same period, and means “ exclusive,” not in consequence of, but prior to, the commencement of the suit in which its exercise is required, that is, an exclusive right to entertain the suit. The words “ concurrently ” and “ exclusively,” as used, are opposed to each other ; but there is no real opposition unless they are understood in the sense that has been explained.

Yet, if we adopt this construction, it is by no means necessary, in order to give effect to the intention which, we certainly believe, was that of the legislature, that the words, which create Lhe difficulty we admit, should be wholly expunged ; but it is necessary that they should be understood, with a qualification, which may reconcile them with the provisions that follow. This qualification, indeed, is not expressed, but unless we impute to the revisors and the legislature a palpable contradiction, it is certainly implied.

We understand then the words, “exclusively of any other judge,” as applying to every, other judge who in the enumerated cases would not be competent to exercise the jurisdiction ; in other words, within whose circuit no one of the facts necessary to found the jurisdiction could be truly alleged to exist. Thus interpreted, there is sufficient room for the application of the words in the sense which it has been admitted belongs to them, and the reason and propriety of their insertion become apparent. It was foreseen, that in most cases the jurisdiction would be exclusive, as an antecedent right, in a single judge. It would be so, not only when all the jurisdictional facts were found to co-exist within the same circuit, but, in all cases, when the origin of the causes of action, or the locality of the subject matter in controversy, or the residence of the defendant, in suits against a single defendant, was the sole ground upon which the jurisdiction could be raised (Brown v. Brown, 1 Barb. Ch. R. 189; Burckle v. Eckart, 3 Denio 282, S. C.; 3 Comst. 139); and in cases not falling under either of these categories, although the jurisdiction might be concurrent, prior to its exercise, in several judges, it would yet be exclusive of some. It is true there was a bare possibility that the words “ exclusively of any other judge,” might, in some cases, not be applicable. Cases in which, before the institution of a suit, each judge would have an equal right to entertain it; but as this could only happen when one or more of the defendants resided in each of the eight circuits of the state, it is not improbable, that a contingency so very unlikely to happen, and which probably never has happened, was wholly overlooked. A possibility so remote cannot be regarded as a serious objection to the construction we have suggested.

It is this construction, therefore, that we adopt, persuaded that it explains and expresses, truly, the intent of the legislature. By adopting it, we give to the words exclusively of any other judge,” their appropriate sense ; we render them consistent with the other provisions of the section, and we relieve ourselves from the necessity of striking them out as .superfluous or contradictory—superfluous, if they only declared a consequence which, whether declared or not, must have followed ; contradictory, if they could only be understood in the literal, unqualified sense which the argument for the plaintiff requires. We repeat, that we are saved from this necessity, since assuredly we could not have sacrificed to doubtful expressions the clear legislative intent, which, we have shown, is manifested by the other provisions of the section,

We have taken more pains than might seem to be necessary to explain and vindicate our judgment, arid we have done so from the conviction that the question we are deciding is of real and grave importance. It concerns not alone the parties to the present suit. We believe that, during the whole time, that the former organization of our judiciary was in force, the understanding of the bar and of judges throughout the state, as to the jurisdiction of the vice chancellors, corresponded substantially with the views that we have expressed ; and, hence, if the decree upon which this defence is founded were declared a nullity, we should not venture to compute the number of those, upon which the like sentence might hereafter be pronounced. It is needless to dwell upon the consequences that would ensue. The multiplied and vexatious litigation, the disturbance of established titles, the ruin in which many would be involved, and the wide-spread anxiety and alarm. The continued existence of doubt, upon a question, threatening these consequences, would itself be a positive evil, and it is this, that we have been desirous to prevent. This is, probably, the first case in which an argument founded upon these doubts has been addressed to a court of justice, and, we may hope, it will be the last. We add, that although there is no decision to which we can appeal as an express authority, yet, it appears to us, that in every case in which the question as to the statutory jurisdiction of the vice chancellors has arisen, the truth of that construction of the statute, upon which we have insisted, is either admitted in terms or plainly implied. It is so in the cases we have before quoted, Brown v. Brown and Burckle v. Eckart, and in the following— Bicknell v. Field, 8 Paige 443; Bank of Orleans v. Skinner, 9 Paige 308; and Cromwell v. Cunningham, 4 Sand. Ch. R. 384.

Another ground, upon which the plaintiff seeks to recover, is, that he was not a party to the decree of foreclosure and sale, and is, therefore, not hound by its provisions and the proceedings under it. It is not denied that he was originally a party to the suit, that the bill was taken against him as confessed, and that in the pleadings and decree he is mentioned as one of those whose rights, in the equity of redemption, were meant to be foreclosed and barred.

But it is contended, that by the amendment of the bill, his prior default in not answering, was opened and superseded, and that as the amendment was made without notice, and no copy of the amended bill was served upon him, all the subsequent proceedings, as against him, must be deemed irregular and void. To this conclusion, however, we cannot assent. Although the amendment of the bill was proper, and perhaps necessary to show the jurisdiction of the court, yet as it neither altered the title of the complainant to the relief that was sought, nor the relief itself, in its substance or form, we think, it may be justly regarded as merely formal. As the facts correspond with the amendment, it worked no prejudice to the plaintiff, when made, nor does it furnish to him now, any reasonable ground of com-, plaint. . There may have been some irregularity in the proceedings, which the court in which they were had, upon application, might have corrected, but there is no irregularity that would justify us in holding the decree and the sale under it to be wholly void. We think, on the contrary, that they have given a title to the defendant which the plaintiff is not at liberty to impeach.

The judgment at special term is affirmed, with costs.