text:
    JOHN MITCHELL, as Executor of the Last Will and Testament of CATHERINE E. CONKLING, Deceased, Respondent, v. DAVID H. KNAPP, Personally and as Executor of the Last Will and Testament of JASPER R. GRIFFING, Deceased, Appellant, Impleaded with Others.

      Will — when an estate in remainder, created by a bequest, vests.

    The will of Mary E. Grilling provided, among other things, as follows: “After all of my just debts and funeral expenses are paid I give, devise and bequeath to my executrix, hereinafter named, all my estate, both real and personal, and all rights and equities which I may have or be entitled to at the time of my decease, in trust for the joint support and maintenance of my mother, Eliza S. Lull, and my sister, Catherine E. Conkling, during the natural life of my said mother, and upon her decease I give, devise and bequeath all the residue and remainder thereof to my said sister, Catherine E. Conkling, whom I hereby nominate and appoint executrix of this my last will and testament, hereby revoking all former wills by me made,”
    In an action, brought to obtain a construction of the will, it was claimed that the will did not create a vested remainder in favor of Catherine E. Conkling, and that the residuary clause created a mere contingent remainder, dependent upon the condition that there should remain, at the death of Eliza S. Lull, some portion of the estate, and that Catherine E. Conkling should then be living.

      Held, that as the bequest in the present case was a residuary bequest it devolved upon the legatee; if the legatee died before the surplus was ascertained upon her personal representatives.
    That a very clear intention must be shown in order 1o defeat the vesting of a bequest, and that no such intention appeared here.
    That the gift was absolute, and the time of full enjoyment, only, was postponed by an event certain to happen, the death of Mrs. Lull, and that that uncertainty did not prevent the vesting of the estate
    Appeal by the defendant, David H. Knapp, individually and as executor, from a judgment recovered upon a trial at a Special Term, held in Chenango county, which was entered in the office of the county clerk of Chenango county, on the Uth day of January, 1889, in favor of the plaintiff.
    The action was brought for the construction of the will of Mary E. Griffing and for an adjudication as to the ownership of the property belonging to her estate and remaining unexpended at the death of Eliza S. Lull, named in the will. The will bears date March 12, 1880, was executed in proper form and the material part is as follows: “After all my just debts and funeral expenses are paid I give, devise and bequeath to my executrix hereinafter named all my estate, both real and personal, and all rights and equities which I may have or be entitled to at the time of my decease, in trust, for the joint support and maintenance of my mother, Eliza S. Lull, and my sister Catherine E. Conkling, during the natural life of my said mother, and upon her decease I give, devise and bequeath all the residue and remainder thereof to my said sister Catherine E. Conkling, whom I hereby nominate and appoint executrix of this my last will and testament, hereby revoking all former mils by me made.”
    The testatrix died from accident on the 13th of March, 1880, leaving as her sole heir and next of kin her son Jasper K. Griffing. Catherine E. Conkling was her only sister and the mother was an invalid. The testatrix had a nephew and niece, the defendants N ewton Lull and Eliza W. Lull, the children of a deceased brother. The will was duly admitted to probate on March 23, 1880, and letters testamentary were issued to the executrix, Catharine E. Conkling. She took possession of the estate, which consisted only of personal property, paid the funeral expenses of the testatrix and took care of her mother until April 5, 1884, when she (Catherine) died, leaving a will,which was afterwards duly proved andletters testamentary thereon were issued to the plaintiff, Jolm Mitchell, the executor therein named. The plaintiff took possession of what property was left and continued to care for and support the mother until her death March 28, 1885. Jasper K. Griffing died September 10,1881, leaving a will by which he gave all his property to the defendant, David H. Knapp. This will was duly proved and letters testamentary issued to Knapp, the executor therein named. The defendants Newton and Eliza ~W. Lull, after the death of Eliza S. Lull, claimed to be the owners of so much of the property left by Mary E. Griffing as was not expended in the payment of her debts and funeral expenses and in the support and care of Eliza S. Lull and Catherine E. Conkling after the death of Mrs. Griffiing, upon the ground that Catherine E. Conkling having died during the lifetime of Mrs. Lull and before the determination of the trust, the remainder over did not take effect, but the balance of the property passed to the then heirs and next of kin of Mary E. Griffing, who were said Newton and Eliza W. Lull. The defendant Knapp, as executor and legatee under the will of Jasper B. Griffing, also claimed the balance of the property upon the ground that under the will of Mrs. Griffing the remainder did not vest in Catherine E. Conkling prior to the termination of the trust estate, but immediately on the death of Mrs. Griffing vested in Jasper B. Griffing as her heir-at-law and next of kin, subject to the trust and subject only to be divested by the death of Eliza S. Lull previous to Catherine E. Conkling, and that as this did not occur, the title of Jasper and his executor became absolute on the death of Mrs. Lull.
    It was held at the Special Term that, upon the death of Mary E_ Griffing the title to the whole estate vested in Catherine E. Conk-ling as the residuary legatee or devisee, subject only to the trust for the support of the mother ; that the devise or legacy did not lapse upon the death of Catherine E„ Conkling, but passed to her executor, subject to the same trust, and that neither the defendants Newton Lull and Eliza W. Lull, or David II. Knapp, have any interest in the property. The defendant Knapp, individually and as executor, appeals.

      Louis MwsJbáll, for the appellant.

      LL. D. Newton, for the respondent.
   Merwin, J.:

The claim of the appellant is that the will in question did not create a vested remainder in favor of Catherine E. Conkling, hut that the residuary clause created a mere contingent remainder, dependent upon the condition that there should remain at the death of Eliza S. Lull some portion of the estate, and that Catherine E. should then be living.

It is not claimed that the expression “ upon her decease ” prevents the vesting, but the argument is based mainly on the idoa that, in the administration of the trust provided for in the will, the whole estate may be exhausted, and that, therefore, there is such a contingency as to the existence of any remainder that the vesting would be postponed until the determination of the trust. The cases cited on the part of the appellant do not, I think; sustain the proposition as applicable to the case in hand. It is not a case where there is no gift, except by a direction to executors or trustees to pay, or divide and pay, at a future time within the rule laid down in Warner v. Durant (76 N. Y. 136). For here the subject of the gift is the whole estate, and during the trust it is held for the benefit of the legatee and her mother. In Vincent v. Newhouse (83 N. Y., 505) the testator gave to his wife certain lands for life, and directed that at her death the lands should be sold by the executor and the proceeds be divided between certain, parties, and provided that if either of the parties named “ shall die after the date of this will and before the said sums are paid them, the share of the one so dying without issue shall be equally divided among the other heirs above named.” It was held that no portion of the remainder vested at the death of the testator, but only at the death of the widow, the rule being applied that words of survivorship in bequests of personal estate are to be referred to the period of distribution and enjoyment, unless there is a special intent to the contrary. The apparent purpose of the testator was in this way attained. In Delaney v. McCormack (88 N. Y., 174) the testator gave all his real estate to his son for life, and in fee, in ease he married and had issue. If he died without having had lawful issue, the will directed the executor to sell the real estate and distribute the proceeds among the testator’s next of kin as personal estate, according to the laws of the State of New York for the distribution of intestate personal estate. It was held that the next of kin who could take were those who were such at the time of distribution.

In Shipman v. Rollins (98 N. Y., 311) there was a manifest intent to postpone the vesting, and so it was in Delafield v. Shipman (103 N. Y., 163). In Bamforth v. Bamforth (123 Mass., 280) a devise over to two parties was held to be made contingent by the use of the expression should either of them be living.”

In that case the life tenants had the right to use so much of the estate itself as was necessary for their comfortable support during life, and the devise over was of the estate then remaining. This uncertainty in the amount of the estate was not given as a reason for not vesting. The cases of Johnson v. Battelle (125 Mass., 453) and Gibbins v. Shepard (Id., 511), roíate to the power of the life tenant to convey. In Taft v. Taft (130 Mass., 461) the life tenant had power to sell or to dispose of by will, and if at her decease there was any of the testator’s estate not disposed of by her will, it was to go over. This remainder was held to be contingent.

The cases of Matter of Accounts of Mahan (98 N. Y., 372), and Avery v. Everett (110 N. Y., 317), are cited on behalf of respondent. In the Malian case the testatrix devised to her executor certain premises in trust to collect the income and profits, or in his discretion to sell and convey and receive the proceeds, and therefrom to pay a certain sum monthly to her mother during her life, and provide for the education and maintenance of a son during minority, and the balance of income, if any, during such minority, divide equally among her other three children, and at the death of the mother and arrival at age of the son, she gave certain of the premises to the sou, and all the residue of the property she then gave to the other three children, the survivor or survivors of them. It was held that the words of survivorship referred to the death of the testatrix, and that the three children took vested remainders. In the Avery case the testator gave to his wife all his real estate as long as she remained unmarried and his widow, but on her decease or marriage he then gave * what may remain ” to his son, and in case the son died without children, remainder over. It was held that the son took a vested remainder in fee, subject to be defeated by his death without children. In Haynes v. Sherman, (51 Hun, 585) the circumstance that the principal might be reduced in the support of the first taker did not seem to affect the vesting of the remainder, nor did it in the case of Dole v. Keyes (143 Mass., 237).

The bequest in the present case is residuary. In such a case, although the residuary legatee dies before the surplus is ascertained, it devolves on his personal representative. (2 Williams’ Executors [6th Am. ed.], 15,63.) A very clear intention must be indicated in order to postpone the vesting. (1 Jarman on Wills [5th Am. ed.], 850 ; 2 Kedf. on Wills [3d ed.], 235.) No such intent appears here. The presumption is that any one who sits down deliberately to make his will does not intend to leave any portion of his property in such a condition as not to pass under the will. Says Chancellor Kent (4 Comm., 206): It is not the uncertainty of enjojmient iii future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and contingent interest.” A devise after the payment of debts “ confers an immediate vested interest, the words of apparent postponement being considered only as creating a charge.” (1 Jarman on Wills, 820.) Here there is no uncertainty as to the right of Catherine E. Conkling. The gift is absolute. The time only of full enjoyment is postponed by an event certain to happen — tli e death of Mrs. Lull. The uncertainty as to the amount does not prevent the vesting of the right. The amount being ascertained it will be deemed to have existed from the time of the death of the testatrix and to have then vested. The intervening trust will not prevent this result. (Embury v. Sheldon, 68 N. Y., 234.) If the statutory test as to real estate was applied (4 R. S. [8th ed.], 2432, § 13) there would be a vested estate in Catherine. We think it was correctly held that the residuary bequest vested in Catherine E. Conkling, and upon her death passed to her representatives. There is no ruling upon the admission of evidence that requires any special consideration.

It follows that the judgment should be affirmed, with costs.

Hardin, P. J., concurred ; Martin, J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Parker, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. E. REMINGTON & SONS. In the Matter of the Proving of the Claim of the ILION NATIONAL BANK.

      Insolvent corporation — elaimamts against, holding collateral security — amount thereof not deducted from the claim as proved — rule as’to collateral secwrit/y received from a third pa/rty.

    Upon an appeal from an order confirming the report of a referee, appointed under the statute to take proof of the claims against an insolvent corporation, it appeared that the whole debt which one of the claimants, the Dion National Bank, held against the insolvent corporation, at the time the receivers were appointed, amounted to the sum of $195,525.56. It also appeared that the said bank held securities received from the corporation sufficient to satisfy a part of such indebtedness. The receivers of the corporation claimed that the value of such securities should be first applied towards the discharge of the bank’s claim, and that the balance only should be proved as a debt upon which dividends should be allowed.

      Held, error; that both the weight of authority and the better reasoning sustained a contrary rule.
    Oases bearing upon this question collated by Parker, J., and considered.
    A portion of the securities held by the bank were derived from, other parties than the insolvent debtor.

      Held, that as to those it was well settled that no part of them need be applied or deducted before proving the debt.

      Mvparte Bennet (2 Atk., 528) followed.
    A small part of the securities held by the bank had been converted into money by a sale thereof, made prior to the hearing before the referee, but after the appointment of the receivers. It-was contended that, as to such portion, the money received should be deemed a payment pro tanto, and the balance only of the claim be allowed as a debt against the insolvent.

      Held, that as it did not appear that any of the money received from the sales of the pledged property had been applied as a payment upon the debt, either by agreement with the receiver, or by any claim to that effect made by the bank, that it should be considered as still held as collateral to the debt rather than be deemed a payment thereon.
    Appeal by Addison Brill and Albert N. Russell, the receivers of E. Remington & Sons, the defendant corporation, from an order granted at a Special Term, held in Onondaga county, ■which was entered in the office of the clerk of the county of Herkimer on the 1st day of July, 1889.
    This order of the Special Term, confirmed the report of a referee appointed under the statute to take proof of claims against defendant, an insolvent corporation. On the hearing before the referee it appeared that the whole debt or demand which the Ilion National Bank held against the insolvent corporation, at the time the receivers were appointed, amounted to the sum of $195,525.56. It held, however, securities received from the coipioration sufficient to satisfy a part of such indebtedness, and the receivers of the corporation claimed that the value of such securities should be first applied toward the discharge of the bank’s claim, and that the balance only should be proved as a debt upon which dividends should be allowed. The referee refused to so hold, and allowed the bank to prove its whole debt as a claim against the corporation. The Special Term confirmed such ruling, and the receivers brought this appeal.

      WilUam Kerncm, for the receivers, appellants.

      A. M. Mills for the Ilion National Bank, respondent.
   Parker, J.:

The main question presented by this appeal is, whether a creditor of an insolvent debtor, who has received from the debtor collateral securities for the debt sufficient to satisfy a portion thereof only, may prove against such debtor’s estate the whole of his demand and be allowed a dividend thereon, or whether he must deduct from such debt the value of such security, and be allowed a dividend only upon the balance remaining. In the distribution of an insolvent’s estate, under the general bankrupt law, this question was controlled by the provisions of the act itself. But in the proceedings, under which the assets of this corporation came into these appellant’s hands for distribution, there is no statutory provision regulating the subject, and the solution of the question must be found by applying to it the principles which usually govern courts of equity in similar matters. It is surprising that this precise question has not been settled by judicial authority in this State, but with the exception of one or two decisions at Special Term, the courts do not seem to have been called upon to decide it. In the English courts decisions may be found sustaining either claim, and in this country the rule differs in different States.

It is contended, on-the part of the appellants, that when a court of equity assumes to marshal the assets of an insolvent debtor its purpose is to make a just and equitable ” distribution of the same among the creditors, without preference to any, and that such a distribution is made to the creditor holding security, if he is allowed to apply the whole of his security to the satisfaction of his debt, and to share for the bcilcmce equally with the other creditors. They argue that, as to his security, he gets by this method all the benefit from it that he could acquire under the other rule, viz., satisfaction pro tcmto upon the amount of his debt, and that as to the fund in court for distribution, inasmuch as he has no specific lien upon it, and as his actual debt is only the balance remaining after applying the security, ho should share from it with other creditors in that proportion only; and such is the general line of argument in all the authorities sustaining such a rule.

But, by taking collateral security, a creditor gives up no part of his demand, nor any of the methods for collecting it which the law recognizes and allows. He may still proceed to judgment and full satisfaction against the debtor’s general estate, notwithstanding that he holds the collaterals; and the debtor has no control over such collaterals nor over their application, save the right to redeem them by paying the whole indebtedness. The debt stands for the full amount. The collaterals ar.e but an incident to it. (1 Story’s Equity Juris., § 640 ; James v. Hamilton, 2 Hun, 630; Id., 63 N. Y., 616; First Nat. Bk. v. Wood, 71 id., 405-411.) Such being the creditor’s legal rights as against his solvent debtor, there is no just reason why he should be deprived of such rights when the debtor becomes insolvent, and the court undertakes a just and equitable distribution of his estate.

It is true the rule for which the appellants contend, gives to the creditor the benefit of his security to the full amount thereof, but it deprives him of his standing as a creditor, in relation to his claim against the residue of the debtor’s estate. Suppose the security be sufficient to satisfy fifty per cent of the creditor’s debt, and a dividend of the insolvent’s general estate estimated upon the creditor’s whole debt, would pay the other half. Evidently, if he be allowed to prove against such estate but one-half of his debt, he is compelled to lose a portion thereof for the benefit of others; but if he may prove his whole debt, and collect from the general estate his pro rata share thereof, he stands in relation to that fund equal with other creditors, but no more than equal, and the advantage which he has of resorting to his security to make up any deficiency is no more of an advantage than his contract with his debtor and his legal rights entitled him to.

The principle which allows a creditor to retain such an advantage is well settled in analogous cases in this State. Thus, when a creditor has a right to resort to two funds for the satisfaction of his debt and another creditor has a right to resort to only one of them, equity will not require the former to first resort to the fund on which the other has no claim, if such resort would operate to prejudice the rights of the first creditor, nor if there was any reasonable doubt of the sufficiency of the one fund to satisfy his debt. And such is the rule, not because the creditor has by superior diligence acquired a specific lien on both funds, as suggested by appellants’ counsel, but because equity recognizes and sustains his legal rights so far as is necessary to give him the full benefit thereof. (1 Story’s Eq. Juris., § 633; Brinkerhoff v. Marvin, 5 Johns. Ch., 320; Evertson v. Booth, 19 Johns., 485-493; Reynolds v. Tooker, 18 Wend., 591-594; Herriman v. Skillman, 33 Barb., 378; Bernhardt v. Lymburner, 85 N. Y., 172.)

Referring to the athorities upon the precise question before us, it appears that the courts of Massachusetts sustain the appellants’ position on the ground that it is a reasonable one, and more consistent with the nature of the contract under which security is taken. They proceed upon the theory that by taking security the creditor relies upon the general credit of the debtor, only to the extent of the balance remaining after applying the security to the satisfaction of the debt. (Amory v. Francis, 16 Mass., 308; Farnum v. Boutelle, 13 Met., 159.) But in our judgment «uch is not the nature of the contract. The creditor still relies upon the whole estate of his debtor for Ids full debt, and looks to his collateral to supply any deficiency.

In the English cases which sustain the appellants’ position, the rule is said to be grounded on the principle that when one creditor has two funds to which he may resort, and another has only one of them, the first creditor should first resort to the one to which the other creditor cannot apply. (Greenwood v. Taylor, 1 Russ. & My., 185; Brocklehurst v. Jessop, 7 Sim., 438.) But manifestly this overlooks the- well-settled exception above referred to, that in no case will such rule be applied when it would operate to the prejudice of the creditor who is asked to make such an application. In Wurtz v. Hart (13 Iowa, 515), the court followed the general bankrupt law as being a just and reasonable rule without giving the subject much consideration. In Rhode Island the rule contended for by the appellants was first held to be the correct one (Knowles’ Petition, 13 R. I., 90), but, subsequently, in Allen v. Danielson (15 id., 480), that conclusion was directly overruled as being manifestly unjust and as having been made hastily and without due consideration and in Third National Bank of Baltimore v. Lanahan, Trustee, etc. (66 Md., 461), as in Midgeley v. Slocomb (2 Abb. [N. S.], 275), the decision turned upon the language of the assignment rather than on the application of any rule of equity. On the other hand, in the Supreme Court of the United States, if is said to be “ a settled rule of equity that a creditor holding collaterals is not bound to apply them before enforcing his direct remedies against the debtor,” and such rule was there appplied in favor of a creditor holding collaterals against an insolvent debtor’s estate. (Lewis, Trustee, etc., v. United States, 92 U. S. Sup. Ct. [Lawyer’s Co-operative ed., 513]; [2 Otto], 618.) See, also, the following authorities to the same effect: Mason v. Bogg (2 Myl. & Craig, 443); Putnam v. Russell (17 Vt., 54); West v. Bank of Rutland (19 id., 403); Moses v. Ranlet (2 N. H., 488); Findlay v. Hosmer (2 Conn., 350); Logan v. Anderson (18 B. Monroe, 114); Pattern's Appeal (45 Penn. St., 151); Graeff's Appeal (79 id., 146); Bates v. Paddock (9 N. E. Rep., 257); Matter of Bates (118 Ill., 524); Jervis v. Smith (7 Abb. [N. S.], 217).

We conclude, therefore, that both the weight of authority and the better reasoning sustain the rule adopted by the referee in these proceedings.

A portion of the securities held by the bank were derived from parties other than the insolvent debtor. As to those, it is well settled that no part of them need be applied or deducted before proving the debt. (Ex parte Bennet, 2 Atk. 528; Bishop on Insolvent Debtors, § 356.)

A small part of the security held by the bank had been converted into money by a sale thereof prior to the hearing before the referee, but after the appointment of the receivers, and the appellants contend that as to such portion the money received should be deemed a payment pro tamto, and the balance only of the claim be allowed as a debt against this insolvent. But we think that the condition of the parties in relation to the insolvent’s estate, at the time it passed into the custody of the court, should determine their respective rights. What was held as collateral then should be deemed so held until the final adjustment between the receivers and the creditors, and the creditor should not be allowed, except by arrangement with the receivers, to in any way change the character of such holding. Otherwise he might prejudice the rights of the receivers and lessen his own responsibilities to them. So, also, it might easily happen that one creditor would be forced by the exigencies of a market to convert his securities into money before opportunity of proving his debt occurred, while another, from prudential reasons, would be compelled to retain his unsold, and thus creditors having equal equities would be placed in unequal relations to the fund for distribution.

It does not appear tbat any of tbe money received from tbe sales of tbe pledged property bas been applied as a payment upon tbe debt, either by agreement witb tbe receivers or by any claim to tbat effect made by tbe bank alone. We tbink, therefore, tbat it should be considered as still held as collateral to tbe debt, rather than be deemed a payment thereon.

Tbe referee adopted tbe proper rule, and tbe order of tbe Special Term should, therefore, be affirmed.

Martin and Merwin, JJ., concurred.

Order affirmed, witb ten dollars costs and disbursements, to be paid out of tbe funds in tbe bands of said receiver.


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

text:
    JOHN W. BELLINGER, as Overseer of the Poor of the Town of Kirkland, Respondent, v. J. ALLEN BIRGE, Appellant.

      Overseer of the poor — authority of, to discontinue an action brought by his predecessor in office (then deceased) although he has not been substituted as plaintiff therein.

    An action to recover several penalties for selling strong or spirituous liquors in quantities less than five gallons at a time, without having a license therefor, based upon the provisions of section 13 of chapter 628 of the Laws of 1857, was brought in the Supreme Court in the name of John W. Bellinger, as overseer of the poor of Kirkland, by A. J. Hopkins and I. O. Best, in pursuance of the provisions of section 30 of the said act, as amended by chapter 820 of the Laws of 1873.
    It appeared that one Root had been overseer of the poor previous to the appointment of Bellinger as such overseer, and had brought an action in August 1888 against the defendant in the Oneida County Court, which was pending at the time of Root’s death and Bellinger’s appointment on September 5, 1888.
    On the trial of the first-mentioned action the defendant offered in evidence a release, under the hand and seal of Bellinger, dated October 12, 1888, whereby, for a valuable consideration, he, as such overseer, agreed and stipulated to discontinue and settle a certain action then pending in the County Court of Oneida county, which was commenced in August, 1888, in which one Rollin Root, as overseer of the poor of said town, was named as plaintiff, and the defendant in this action was defendant, and also settled and released all causes of action, or rights of action, which the said town or its overseer of the poor, as such, had, or claimed to have, against the defendant for or on account of any and all alleged sales of liquor, wines, ales or other strong and spirituous drinks, without a license.

      This evidence was objected to on the ground that at the time when this release was given Bellinger had not been substituted as plaintiff in the place of Root in the action in the County Court, and that he had no power to give such release. The objection was sustained, and the defendant duly excepted to such ruling and appealed from the judgment entered against him.

      Held, that upon the death of Root and the appointment and qualification of Bellinger, as such overseer, the latter succeeded to the rights, and became at once invested with the powers of the former and had authority to discontinue such action in the County Court, although he had not been substituted as plaintiff therein.
    That the court erred in refusing to admit the release offered in evidence by the defendant, and that the judgment should be reversed. (Merwin, J., dissenting.) Semble, that an overseer of the poor has a right to settle and release such a cause of action and discontinue the action brought to recover the penalties. (Per Hardin, P. J., and Martin, J.)
    Appeal by the defendant from a judgment of March 20, 1889, in favor of the plaintiff, which was entered, upon the verdict of a jury at the Oneida Circuit, in the office of the clerk of Oneida county, and from an order denying a motion for a new trial made upon the minutes of the justice presiding at the trial.

      McMahon c& Ourtm,, for the appellant.

      J. S. McCabe, for the respondent.
   Martin, J.:

This was an action to recover several penalties for selling strong or spirituous liquors in quantities less than five gallons át a time without having a license therefor. The action was based on the provisions of section 13, chapter 628 of the Laws of 1851. It was brought in the name of John W. Bellinger, as overseer of the poor of the town of Kirkland, by A. G. Hopkins and I. O. Best, in pursuance of the provisions of section 30 of said act, as amended by chapter 820 of the Laws of 1813.

On the trial the defendant offered in evidence a release under the hand and seal of said Bellinger, dated October 12, 1888, whereby for a valuable consideration he as such overseer agreed and stipulated to discontinue and settle a certain action then pending in the County Court of Oneida county, in which one Bollin Boot, as overseer of the poor of said town, was named as plaintiff, and the defendant in this action was defendant, and also settled and released all causes of action or rights of action which the said town or its overseer of the poor, as such, had or claimed to have, against the defendant for or on account of any and all alleged sales of liquor, wines, ales, or other strong and spirituous chinks without a license. This evidence was objected to “ as incompetent and immaterial, and that the overseer has no power.?’ The objections were sustained and the defendant duly excepted.

This exception presents at once the most important and difficult question involved on this appeal. The action in the County Court was commenced in August, 1888, by Rollin Root, the then overseer of the poor of that town. He subsequently died. On September fifteenth of that year Bellinger was duly appointed as such overseer to fill the vacancy caused by such death. When Bellinger assumed the duties of his office he found that action pending. It was after-wards settled by him, and the release mentioned was given. That such settlement and release, if valid, was a defense to this action, is not denied. The contention of the persons prosecuting this action is, that the plaintiff had no power or authority to control or settle that action because he had not been substituted as plaintiff in the case, and that he had no power to settle the matters involved therein, The court so held.

Upon the death of Root and the appointment and qualification of Bellinger as such overseer, the latter succeeded to the rights, became invested with the powers, and burdened with the duties and responsibilities which had been possessed by and Imposed upon the former, as well as to the subject-matter of such suit as to the other matters pertaining to that office. We do not think that the learned trial justice was correct in holding that Bellinger had no authority to act in, or control over, that action without being substituted as a party. We are of the opinion that that action and the subject-matter thereof were subject to his direction and control, that he might, and that it was his duty to perform every act that his predecessor could or should have performed in regard to it if he had lived and continued in office. It might have been proper for Bellinger to have procured a substitution of himself as plaintiff, if he had deemed it best to continue that action instead of settling it, but it does not seem that it was necessary. (Farnham v. Benedict, 29 Hun, 44; Manchester v. Herrington, 10 N. Y., 164; Board of Excise v. Garlinghouse, 45 id. 249.)

This brings us to the question of the power of an overseer of the poor to settle such an action and to discharge a person from the liability which he has incurred by reason of a violation of this statute. The respondent contends that such an action cannot be compounded without the consent of the court in which the action is pending. Several authorities are cited as sustaining that contention. We do not think they sustain the doctrine contended for. The cases cited were actions brought by private individuals in their own names where the public was interested in a portion of the recovery, and were based chiefly upon an English statute which expressly provided that in such an action the plaintiffs should not compound or agree with the offender without the order or consent of the court in which the action was pending. Substantially the same provision is made by section 1894 of the Code of Civil Procedure. Those cases are unlike the case at bar. In this case the action was brought by a public officer under the provisions of a statute which make it his duty to sue for and recover such penalties, and there is no statute or other authority, to which our attention has been called, that requires him to'obtain the consent of the court before he can settle or discharge such a cause of action. Moreover, there is no evidence that this action was compounded, non constat but the defendant paid the full amount of such penalties and costs.

. By the statute under consideration the right of action for such penalties is vested in the overseer in the first instance. It is the obvious intent of the statute that such actions and causes of action shall be under the control and management of that officer, unless he shall improperly omit to perform his duty as such; and he must be déemed to possess all the powers necessary to a proper and efficient discharge of bis duties in that behalf. Such powers as are necessary and not expressly given are to be implied. While it may well be that a settlement of such an action by an overseer, when proved to have been collusive, fraudulent or without consideration, might be set aside, and that such a settlement would constitute no defense to a subsequent action brought to recover the same penalties, still, we think, it should not be held that the settlement and release of such a cause of action, which is, in all things, proper and fair, is invalid. To uphold this judgment we must hold that an overseer of the poor has no power to settle or release a cause of action for a violation of this statute, even if the full penalty given by the statute was paid by the defendant. In this ease the fairness of the settlement is in no way impeached. Presumably it was based on a full and valuable consideration. If it was the duty of Bellinger, and he had power to settle this cause of action only on the payment of the full amount of the penalty incurred and costs, then the presumption is that he discharged that duty, and the burden of overcoming such presumption rested with the respondent. When the action is prosecuted by others in the name of the overseer, the overseer cannot control the action, but when prosecuted by himself he may, doubtless, control it and even discharge the judgment when obtained, if such discharge be not in fraud of the rights of the people of his town. (Record v. Messenger, 8 Hun, 285.)

We have, perhaps, discussed the question in this case more fully than was necessary. What we intend to decide is, that the court erred in refusing to admit the release offered in evidence by the defendant. That the rejection of that evidence was error, we hold. For this error the judgment and order should be reversed.

Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event.

Hardin, P. J.:

When the defendant offered the discontinuance and release m evidence they were objected to and rejected and an exception taken-If the paper had been received, it would have furnished some evidence that defendant had paid to settle, or to satisfy penalties. That would have required evidence from plaintiff to overcome the position of defendant that he had paid and satisfied.

The defendant was entitled to give the evidence that “ for a valuable consideration ” all actions were settled, all causes of actions accruing against defendant had been released; if the plaintiff could then have proved that the overseer had no authority to settle, or to release, he would have been entitled to give such proof. In People ex rel. Hammond v. Leonard (74 N. Y., 446), it was said by Church, Oh. J.: “ There may be cases also where a public officer suing for penalties, may and ought to discontinue the actions, or in case of a doubtful result to compromise them. The diligence required by the statute does not mean á reckless prosecution regardless of consequences. The best diligence may be exercised in making haste slowly.”

If the court had taken the evidence offered by defendant, and then any evidence offered by plaintiff to reply, the question would have been presented as to whether the action of the overseer was valid and effectual, as well as discreet. The conclusion was erroneous. There should, therefore, be a reversal. Judgment and order reversed on the exception, and a new trial ordered, with costs to abide the event.

Merwin, J.

(dissenting):

• The case presented does not, I think, authorize the assumption that any claim was made by defendant that the penalties proved had been paid. There was no plea of payment. The case shows that the new overseer saw the attorney of the parties desiring to have the cases prosecuted, and declined to go on with the prosecution, on the ground that he deemed the evidence insufficient. The defendant then proposed to show that, after that, the overseer “ conferred with counsel about it, and settled and satisfied all the cases and released everything up to that date, October twelfth.” That was the date'of the release offered. There was no suggestion that the penalties were paid. Had such a suggestion been made, very likely the trial would have taken another course. At least another question would have been presented. So that I think the question for us to determine is whether an overseer has any power to release before judgment without payment. The statute (section 22 of chapter 628 of 1857, as amended by chapter 109 of 1878), provides that the penalties of the character here sited for “ shall be' sued for, and recovered by and in the name of the overseers of the poor * * * and paid over to the treasury of the county for the support of the poor.” No power to compromise or compound was given, and none, I think, was intended. Such a power would, in many cases, destroy the efficiency of the statute. The overseer was not the owner of the cause of action. The trial court simply held that the paper did not release the cause of action then pending. I think this ruling was correct.

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


author: Hardin, P. J.:

text:
    PETER J. LALLY, Respondent, v. JONAS A. EMERY, Appellant.

      Action for slander — right of a defendant to testify, that in speaking the w ords he did not intend to eha/rge the plaintiff with the commission of a crime.

    In an action to recover damages for slander tlie complaint contained two counts:
    Tlie first count alleged that the defendant “maliciously spoke concerning the plaintiff the false and defamatory words following: ‘ Is Lally (meaning plaintiff) getting along well in the hospital corps ? Lieutenant Lloyd said to me, ‘ ‘ My last dealings with that man (meaning plaintiff) was he was hauled up before á court for committing a rape, or trying to commit a rape.”
    The second count alleged that the defendant maliciously said that the plaintiff had been tried, or had been before a court for committing, or attempting to commit, a rape while a sergeant in the United States army.
    It was alleged in each count that the defendant intended by these false and defamatory words to charge that the plaintiff had committed the crime of rape within the Territory of Dakota.
    The defendant admitted the use of the words, alleging the commission of the crime, and denied the other allegations of the complaint, and expressly denied any malice, and averred that the words which were admitted to have been spoken were uttered by the defendant, “ believing them to be true, without any . malice towards'tlie plaintiff, and without any design to do him an injury in his good name or otherwise.”
    Upon the trial the defendant was asked by his counsel this question: “ Upon either of these occasions, when you spoke those words to Delaney, or when you spoke those words to Comegys, did you intend to charge Lally with the crime of rape, or attempt to commit rape?” An objection taken by the plaintiff that that question was incompetent and immaterial was sustained, and the defendant excepted to the decision.
    The judge charged, among other things: The evidence is before you to say whether or not “ the defendant, in good faith, in the line of his duty, without malice, said what he did, believing it to be true.” And further charged: “ In a case of this kind the jury have it in their power to give what is called exemplary damages in addition to damages by way of compensation, that is, damages by way of punishment.”

      Meld, that the defendant should have been allowed to give in evidence any fact or circumstances tending to disprove malice; that the intent with which the words were uttered was a question of fact for the jury to determine, and the defendant should have been permitted to answer the question put to him and state, if he could, that in the use of the words, which were the foundation of the action, he did not intend to charge the plaintiff with the commission of the crime alleged.

      Appeal from a judgment entered, upon a verdict recovered at the Jefferson Circuit, in the office of the clerk of the county of Jefferson, on the 2itli day of December, 1888, in favor of the plaintiff, and from an order denying. the defendant’s motion, made upon the minutes of the justice presiding at the trial, to set aside the verdict, and for a new trial.
    Plaintiff’s complaint contains two counts for slander. The first count alleges that the defendant “ maliciously spoke concerning the plaintiff, the false and defamatory words following: Is Tally (meaning plaintiff) getting along well in the hospital corps % Lieutenant Lloyd said to me, “ My last dealings with that man (meaning plaintiff) was he was hauled up before a court for committing a rape, or trying to commit a rape.” ’ ” The plaintiff further alleges that the defendant by said words intended to charge that the plaintiff had been brought before a court for committing a rape or attempting to commit a rape at Fort Randall, Dakota Territory, and to charge that the plaintiff had committed a rape or had attempted to. * * * The defendant intended by said false and defamatory words to chai’ge the said plaintiff with committing a crime against the laws of the United States, against the laws of the Territory of Dakotaj and with the intent to charge that the plaintiff had committed an offense which is a crime against the laws of the State of New York.” * * *
    In the second count the plaintiff stated that “ defendant, in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff the false and defamatory words following: That Lieutenant Lloyd (meaning a lieutenant in the United States army, stationed at Fort Randall, Dakota Territory), said to the defendant that the plaintiff had been tried, or had been before a court, for committing, or attempting to commit, a rape while a sergeant in the United States army; meaning thereby to charge that the plaintiff had committed the crime of rape while a member of the United States army and a sergeant therein, stationed at Fort Randall, Dakota Territory; that defendant intended by said false and defamatory words to charge that the plaintiff had committed the crime of rape within the Territory of Dakota,” etc.
    Defendant in his answer, among other things, admitted that he used the following words: “ Is Tally (meaning plaintiff) getting along well in tbe hospital corps ? Lieutenant Lloyd said to me, ‘ My last dealings with that man (meaning plaintiff) was, I was on a court martial that tried him.for rape, or attempt to commit rape,’ ” and the answer denies the other allegations of the complaint, and expressly denies any malice, and avers that the words which were spoken and which are admitted, as already stated, were uttered by the defendant “ believing them to be true, without any malice towards the plaintiff, and without any design to do him injury in his good name or otherwise.”
    After the defendant had been examined as a witness, and cross-examined as to the circumstances under which the words which he has admitted in the answer to have spoken were uttered, and had given the facts and circumstances tending to show that the words were used without any malice, his counsel propounded the following question to him, viz.: “ Q. Upon either of these occasions, when you spoke these words to Delaney, or when you spoke these words to Comegys, did you intend to charge Lally with the crime of rape or attempt to commit rape ? ” Thereupon the plaintiff’s counsel objected to that “ as incompetent and immaterial.” The court sustained the objections and the defendant excepted.

      Peck <& McConnell, for the appellant.

      Hannibal Smith, for the respondent.
   Hardin, P. J.:

Plaintiff in his complaint charged the defendant with uttering the words, and that he intended by the words “ to charge that the plaintiff had committed the crime of rape, or had attempted to.” In the course of the charge delivered to the jury, the judge remarked: “ It is a question for you to determine whether or not these words, as used especially upon the first occasion, did amount to a charge of crime; 'it is a question of their reasonable meaning as used under the circumstances. If you are of the opinion that there was not here, in substance, a charge of crime, the crime of rape, or an attempt to commit rape, why then there would be no basis, as this case stands, for a cause of action. It is claimed here, in the complaint, that the slander consisted, in substance, of a charge of this crime, rape or attempt to commit rape. * * * And still, upon the whole case, it will be a matter of evidence whether or not you are satisfied that the defendant, in good faith, in the line of his duty, without malice, said what he believed to be true. * * * The evidence is before you to say whether or not the defendant, in good faith, in the line of his duty, without malice, said what he did, believing it to be true.” And after explaining to the jury that they might give compensatory damages, he added, viz.: “And in a ease of this kind the jury have it in their power to give what is called exemplary damages in addition to damages by way of compensation; that is, damages by way of punishment. The jury on that subject should consider the subject fairly. It is in their discretion, if a case is made out, to add to the compensatory damages, damages by way of example.” Ve thus see the motive of the defendant was in issue; and that the jury were allowed to inquire what was his motive on the occasion of the utterance of the words charged to have been slanderous. It is well settled, that a defendant may give in evidence any fact or circumstance tending to disprove malice. (Bush v. Prosser, 11 N. Y., 347.)

In Taylor v. Church (4 Seld., 459), in dealing with evidence offered for the purpose of showing the motive of the defendant in procuring a publication, and its admissibility for such purposes, Jewett, J., said: “It tended to disprove that the defendant was influenced by actual malice to injure the-plaintiffs by the publication^, and, therefore, pertinent upon the question in respect to the amount of damages to be given beyond a full compensation for the injury by way of punishment or example,” and it was held in that case that the exclusion of the evidence was error.

Since the decision in Seymour v. Wilson (4 Kern., 567), it has been repeatedly held that the motive with which an act was done or words uttered, or an instrument executed may be inquired into by asking of the party perpetrating the act, uttering the words or executing the instrument, what his. motive was, and that the real motive may be stated as a fact to be considered in connection with the other evidence. The rule was quite extensively examined in Pope v. Hart (35 Barb., 636), in a case where a party was charged with an intent to deceive, or cheat or defraud, or with fraud and deceit, and it was resolved that a party “must be allowed to testify as a witness in his own behalf j that he did not intend to cheat, deceive or defraud, or to practice any fraud or deceit in the transaction wherein he is charged with having had such motive, however, inconclusive, unsatisfactory or inconsistent his evidence may be.”

The rule was referred to again in Cortland County v. Herkimer County (44 N. Y., 26), in a case involving an inquiry as to whether a penalty had been incurred or not by certain acts of a party mentioned, and it was said viz.: “ Intent is to be judged of usually by the light of surrounding facts and circumstances. These afford a satisfactory test, which all can know and consider as well as the witness. But here the witness speaks of an intent which may be at variance with the surrounding facts and circumstances, and of which none can know but himself.” The court added that the case was controlled by Seymour v. Wilson (supra), and followed it.

In Dillon v. Anderson (43 N. Y., 236) referring to the rule Folger, J., says: “That where the doing of the act is not disputed, but is affirmed, and whether the act shall be held valid or invalid hangs upon the intent with which it was done, which intent from its nature would be formed and held without avowal; there he upon whom the intent is charged may testify whether he secretly held such intent when he did the act.”

In Bayliss v. Cockcroft (81 N. Y., 371) the cases upon the subject were again referred to and reaffirmed, and a ruling which allowed a witness to state the intent with which he received a certificate accompanying a transfer of a note “ and that he had no purpose or intent to use it to evade the statute of usury ” was upheld. In Pritchard v. Hirt (39 Hun, 380) the intention with which an act was done was allowed to be stated by the party concerned in the act, and the ruling receiving such evidence was approved by this court. In Bedell v. Chase (34 N. Y., 386), where the question of good faith of a purchase was involved it was said that the party “ may be examined as to the intent with which it was made.” And in More v. Deyoe (22 Hun, 223), in referring to this class of evidence, it was said: “ But where the act is equivocal in character, and the intent is directly in issue, it may be ascertained by direct questions, as was sought to be done in this case. Not that the answer would be .absolutely conclusive, but it would be an item of admissible evidence.” In Bennett v. Smith (23 Hun, 50) the action was for publishing a libel concerning tbe plaintiff, and after tbe defendant had testified to certain statements made to him by the plaintiff, and given such other information as he had at the time he wrote the article, he was asked “ Why did yon write it ? ” and it was held that the court erred in excluding the question “ as evidence that he acted in good faith was admissible, not in mitigation of the compensatory, but of the vindictive damages which a jury might award in such a ease.” We are entirely satisfied with the reasons given for the application of the rule in that case to an action of libel, and we are of the opinion that the same reasons apply in an action of slander.

Inasmuch as the jury were instructed in this case that the intent, with which the words were uttered was a question of fact for them to determine, it is evident that the intention of the defendant in uttering the words was a very important question. Whatever may be our views as to the effect upon that question of an answer by the defendant to the question propounded to him, we are persuaded by authority and principle that the defendant should have been permitted to answer and state, if he could, that in the use of the words which are the foundation of the action, he did not intend to charge the plaintiff with the commission of the crime of rape or of theciime of attempted rape.

For the error in excluding an answer to the question we think a. new trial should be granted.

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

Judgment and order reversed on the exceptions and a new trial ordered with costs to abide the event.


author: Haudin, P. J.: Martin, J.:

text:
    BYRON J. SCOFIELD, as Receiver, etc., of WILLIAM SPAULDING, Respondent, v. WILLIAM SPAULDING and PHILO B. SPAULDING, Appellants.

      JPi-audulent conveyance — declamations of the alleged, fraudulent grantor, made before and after the conveyance, competent against him — his declarations made subsequent to the conveyance (even in the case of a conspiracy) not competent against his grantee.

    In an action brought to set aside a conveyance of real estate, which recited a consideration of $3,200, it appeared that the actual consideration given for the conveyance was a deed for a patent-right, which the referee found was of no value. He further found that the exchange was made “with intent to cheat and defraud, hinder and delay the creditors of William Spaulding (the grantor), and that it was with a like intent on the part of Philo B. Spaulding, the grantee.” The grantor remained in possession of the real estate, taking a lease thereof for a year from his grantee, at a rental of $125 a year; and at the expiration of one year Philo gave a lease to William’s wife, and William and his family remained in possession down to the day of the trial.
    On the trial the plaintiff was permitted to prove declarations of the grantor, some made before and some made after the conveyance.

      Held, that the admissions or declarations of the grantor were competent evidence, as against himself, as he was a party defendant.
    That, as evidence was given which tended to establish a conspiracy to defraud the creditors, entered into between the grantor and grantee, the admissions or declarations of the grantor made before the conveyance were competent evidence as against them both.
    That evidence of the grantor’s declarations, which were made subsequently to such conveyance, and also testimony given in proceedings supplementary to execution against him, subsequent to such conveyance, were incompetent as against the grantee.
    That the judgment should be reversed.
    Appeal by the defendants from a judgment, entered against the defendants, upon the report of a referee, in the office of the clerk of' the county of Otsego, on the 26th day of February, 1889, and from the whole and every part thereof.
    This action was brought by the plaintiff to set aside a conveyance of a house and lot in Oneonta, also a vacant lot; which conveyance was executed by "William Spaulding on the 3d day of January, 1885, and recorded on the 6th day of January, 1885, and recited a consideration of $3,200. The grantee Philo B. Spaulding, gave in exchange for the conveyance, a deed of a patent-right for shears or pruning hook, for the territory of thirty-one counties in the State of Pennsylvania.

      The referee has found that the deed of the patent-right territory was of no value, and that the exchange was made “ with intent to cheat and defraud, hinder and delay the creditors of William, and that it was with a like intent on the part of Philo B.” At the time of the conveyance in question the house and lot was of the value of about $3,500, and the vacant lot of the value of about $250; and the grantor had goods in the store of the value of about $1,500; and he had accounts of the value of about $2,000, and he had a horse, wagon, harness and robes, etc., of the value of $200, making the total value of his property some $7,400. His indebtedness amunted to about $2,000. On the 28th of December, 1884, William transferred to his infant son, William H. Spaulding, his horse, wagon, harness, robes, whip, etc., assuming thereby to pay a debt to his son of $200. This transfer was in the presence and with the knowledge of Philo. When the conveyance of real estate was made, Philo had notice that William was in debt. On the 16th of January, 1885, William gave a chattel mortgage to his wife for the express consideration of $2,410, covering the store and goods and all his accounts, and on the 26th of •January^ 1885, William gave his wife another chattel mortgage upon a quantity of tobacco which he had received after the execution of the first chattel mortgage; making the second chattel mortgage collateral to the first one. William remained in possession of the real estate, taking a lease thereof for a year from Philo at a rental of $125 a. year, and at the expiration of one year Philo gave a lease to William’s wife, and William and his family remained in ■the possession of the house and lot down to the day of the trial. No evidence was given tending to establish the indebtedness of William to his son or to his wife, other than appears in the transfers made to them.
    Evidence was given upon the trial tending to show a fraudulent intent on the part of William at the time of the execution of the conveyance, and that Philo had knowledge of William’s indebtedness, and that William desired and intended to cover up all his property or put it beyond the reach of his creditors. Before this action was commenced the receiver offered to Philo a reconveyance of the territory covered by the assignment and demanded a conveyance of the real estate. Philo refused to receive the deed of the territory and refused to execute a conveyance of the real estate.

      M. B. Williams was called as a witness for the plaintiff, and testified that he indorsed a note for William Spaulding April 1, 1884, and that he had a conversation with him at the time of that indorsement with reference to his property. He was then asked to state the conversation, which was objected to and the referee overruled the objection as to William Spaulding and sustained them as to Philo Spaulding. He stated the conversation, and he then added: “ I had a conversation with him after that; after his failure; transfer of his property; it was after it came out that he had. put his property out of his hands and before the sale of the goods in the store; it was about the last of January or first of February. Q. Tell us what occurred then? (Objected to by defendants’ counsel as incompetent, improper and immaterial, and as no evidence against P. B. Spaulding. Objection overruled. Exception by defendants’ counsel.) A. He said he had property enough to pay me; I asked him where, and he did not say where; but he said he could pay me; but he was going to beat that damned Keyes; I asked him how he could beat Keyes when I was the banker. Says J: I have got to pay if you don’t pay; well he said he, had enough to pay me, and keep still I should have my pay ; I don’t know whether I kept still or not; I presume I did not, I felt a little worked; I don’t remember anything further there; I had or heard a conversation with him at the Ballard House in Cooperstown, I think, in May, 1887, when he was there at some court. Q. Tell us what that conversation was ? ” This question was objected to by the counsel for Philo Spaulding on the grounds before stated. The objections were overruled and the defendant took an exception. . The witness answered, viz: “ It is too damned bad you are here; you have no business here,” says I, “ I know it; pay your bills and I will go out; he says, I have got property enough to do it, but I ain’t fixed just now so I can do it; he said Keyes drawed me into it; if I hadn’t went into it with Keyes I wouldn’t have went into it; I told him I didn’t know whether Keyes drawed me into it or he did; I took it he drawed me into it; you compelled me to come; he said Keyes ought to be shot, he ain’t fit to live; there ain’t a Keyes on this side of hell fit to live; I asked him the reason why, and he did not give me the reason why he was not fit. Q. What did he say about the transfer of this property, or why he transferred it ? A. He talked just as. though he owned it; he asked me what I thought his property was worth; says I, it is worth what you appraise it at, $4,000; he said yes it is worth $4,500; that was about all there was in the conversation of the property business that I know. * * * I think he said Barnes had no business to be there for he had paid him up and I think he said he had got about $1,500 or $2,000 after he paid him up out of the book accounts.”
    Three other witnesses testified to similar statements made by "William Spaulding, some before and some after the transfer of the property conveyed had been made and the deed delivered and recorded, to which objections were taken by the defendant Philo Spaulding, which were overruled and exceptions taken.
    William Spaulding had been examined in proceedings supplementary to execution before Charles L. Wilber," as referee. The plaintiff offered to read portions of the evidence thus taken and given by William Spaulding from the referee’s report taken on the 16th of May, 1885. Specific objections were taken by the counsel for Philo B. Spaulding. The referee made the following ruling, viz.: “ If the testimony covers declarations and transactions previous to the 1st of January, 1885, that I exclude so far as details which occurred after the time Philo Spaulding is shown to have any connection with it, that I will hear.” The plaintiff then read the following testimony, viz.: “ I have transferred my real estate to my brother Philo B. Spaulding; I transferred real estate first on the second of this last January to my brother.” * * * “ Three thousand two hundred dollars was the consideration for which this deed was given. I did not get the money for* this deed; I got territory on the Ainley patent shears ; I got a deed of some patent territory; this territory is in Pennsylvania; there was thirty-one counties embraced in this territory.”
    Evidence was given on the trial tending to show that the patent-right was worthless; some twelve years of its life had run; while the evidence was contradictory in respect to the value of the invention, the finding of the referee that it was worthless is abundantly sustained by the evidence. William’s wife did not execute the deed. It was admitted by the counsel for Philo “ that he was in possession of the shears when the production of the same were demanded of him by plaintiff’s counsel in order that he might have an opportunity to cross-examine the witness in relation thereto. That the defendant’s said counsel refused to produce the same as did also the defendant.”

      S. M. Lindslay, for the appellants.

      MeT/oille Keyes, and James A. Lynes, for the respondent.
   Haudin, P. J.:

Upon the evidence before the referee the question of whether or not the conveyance in question was made with intent to hinder, delay and defraud the creditors of "William Spaulding, was one of fact. (Peck v. Crouse, 46 Barb., 151; 3 R. S. [7th ed.], 2329.)

We think the evidence fully warranted the referee in the finding, as a matter of fact, that the conveyance was made with the fraudulent intent on the part of the grantor, and received by the grantee with the like fraudulent intent. (Starin v. Kelly, 88 N. Y., 418.)

We are of the opinion that the admissions or declarations of William were competent evidence against him, as he was a party defendant. He remained in the possession of the property, and although it is said that it was under a lease, yet the position of the plaintiff in attacking the conveyance is that the lease is only a part of a fraudulent contrivance to keep the property beyond the reach of William’s creditors.

After the evidence was given tending to establish a conspiracy to defraud the creditors entered into by William and Philo, the admissions or declarations of William were competent evidence as against him. (Cuyler v. McCartney, 40 N. Y. 228; Loos v. Wilkinson, 110 id., 195; Waterbury v. Sturtevant, 18 Wend., 359.)

When the admissions and declarations of William were offered they were competent evidence against him, and, therefore, the court could not exclude them. (Wright v. Nostrand, 94 N. Y., 31.) Before the evidence closed there was abundant testimony for the referee to find that there was a combination and conspiracy between the grantor and grantee to hinder, delay and defraud the creditors of the grantor. The conversation held in the presence of Philo, in the Windsor Hotel, detailed by the several witnesses, was sufficient to indicate the fraudulent purposes of the grantor and grantee, and to establish a scheme to hinder, delay and defraud the creditors of the grantor. PMlo was present at the conversation, according to the testimony of the witnesses, and made no statement or declaration contrary to the avowed purpose of William in making the “ deal ” with Philo by transferring his real estate in exchange for patent right; he is, therefore, presumed to have acquiesced in the statements. (Cowen & Hill \n\ 191, 192.)

However, as the referee received in evidence declarations of William made after the deed, as well as testimony taken in proceedings supplementary to execution, against the objection of Philo, thus, in effect, holding they were competent evidence against Philo, we think an error was committed.

The opinion of Martin, J., considers this question in extenso, and the views expressed in his opinion must prevail. Therefore, we must reverse and order another trial.

Merwin, J., concurred.

Martin, J.:

I fully concur in the opinion of Mr. Justice Hardin that the evidence justified the referee in finding that the transfer in question was made with an intent, on the part of the grantor,, to hinder, delay and defraud his creditors, and that the grantee was a participant in such fraudulent intent.

The more difficult questions to be solved in this case arise from the admission of certain evidence which was objected to and admitted under the appellant’s exception. On the trial the respondent was permitted to prove the declarations of the grantor, made after the transfer in question was perfected and recorded, to the effect that the purpose of such transfer was to defraud the judgment-creditor represented by the plaintiff, and to prevent the collection of its debt. The referee also permitted the testimony given by the grantor in proceedings supplementary to execution to be read in evidence against the grantee. All this evidence was received under the objection of the grantee that it was incompetent as against him. It must be admitted that, as a general rule, the declarations of a grantor which form no part of the res gestee are not competent to prejudice the title of his grantee, especially when made after the transfer. (Cuyler v. McCartney, 40 N. Y., 221; Bullis v. Montgomery, 50 id., 352; Tilson v. Terwilliger, 56 id., 273; Burnham v. Brennan, 74 id. 597; Tabor v. Van Tassell, 86 id., 642; Truax v. Slater, Id., 630; Coyne v. Weaver, 84 id., 386; Vidvard v. Powers, 34 Hun, 221; Burhans v. Kelly, 17 N. Y. St. Rep., 552.)

It is, however, contended that an exception to this rule exists where the grantor remains in possession. The claim here is, that although the grantor had given a deed of the premises, which had been recorded, and taken a lease from his grantee, under which he claimed to hold possession, still, as the grantor was in possession, the case falls within the exception, and the evidence of the declarations of the grantor were admissible against his grantee.

In Gibney v. Marchay (34 N. Y., 301) it was held that the declarations of a party in possession of real property are admissible against the party making them, or his privies in blood and estate, but are not competent to attack or destroy a title which is of record. In Vrooman v. King (36 N. Y., 477), it was also held that declarations made by a grantor of premises after he had sold them, though he continue 'in the occupation up to the time of making such declarations, were not competent evidence as affecting the rights of his grantee. In Hutchins v. Hutchins (98 N. Y., 64) it was said: “ It is only where the party making the declarations has, at the time of making them, the title to the property, that such declarations bind hissuccessor in interest.” In McDuffie v. Clark (39 Hun, 170) it is said: “ The declarations of a party in possession are admissible in evidence against the party making them, or his privies in blood or estate, not to attack or destroy the title, for that is of record, and of a higher and stronger nature, and cannot be attacked by parol evidence. Such admissions are received in evidence simply to explain the character of the possession in a given case.”

The doctrine of these cases seems adverse to the respondent’s claim. Nor do I find anything which upholds it in the cases of Adams v. Davidson (10 N. Y., 309), or Loos v. Wilkinson (110 id., 195).

In the Adams case the validity of a general assignment for the benefit of creditors was involved. The declarations of the assignor before delivery of the property assigned, as to the purpose of the assignment, were admitted in evidence, and their admission was sustained. Although this case, if not overruled, has been quite pointedly criticised in subsequent cases in the same court, still, if regarded as authority, it does not justify the rulings complained of in the case at bar. In the Adams case the transaction was incomplete when the declarations were made, as no delivery of the property assigned had taken place. In the case at bar the transaction was at an end. The deed had been given and recorded, and a lease of the premises taken by the grantor from his grantee. The whole transaction was not only complete, 'but it was valid and binding between the parties and as to all the world until set aside.

In the Loos case the conveyance was a secret one, and the declarations of the grantors were to the effect that they still owned the property. Such declarations were held competent on the ground that they were a part of the fraud, and it was there said: “ They are in the nature of res gestee declarations, and on the question of fraud clearly competent.” In the case at bar the declarations proved were no part of the fraud, nor did they constitute any part of the res gestee. They were, at most, mere declarations or admissions as to a past transaction. To constitute a part of the res gestee the declarations must be made at the time the act was performed which they are to characterize. Here the act referred to had been performed and fully completed. The fraud, if any, had been fully consummated. It is said, however that the lease was a part of the fraudulent scheme, and hence the grantor’s possession was not under the lease, but under his original title. The question of the validity of such lease was one of the questions being tried, and until determined, and the deed and lease were set aside, I am unable to see how the court could hold that the grantor was in possession under his original title. The question was as to the admissibility of evidence, and not as to the rights of the parties as they should finally be determined. The scheme, if fraudulent, was an executed one, and as between the parties their contracts were binding, and their claimed rights were their real rights. I cannot think that these declarations were any part of the res gestee, nor that the possession of the grantor at that time, under the circumstances disclosed by the evidence, rendered the declarations of the grantor competent evidence against his grantee.

It is also said that the evidence was.snfficient to justify the referee in finding that there was a conspiracy between the grantor and grantee to defraud the creditors of the former, and, therefore, his declarations were admissible against the grantee. If it were conceded that such conspiracy existed, it would be difficult to perceive how it rendered the evidence of such declarations competent against the grantee.

Although when the connection of individuals in an unlawful enterprise is shown every act and declaration of each member of the confederacy in pursuance of the original plan, and with reference to the common purpose, is, in contemplation of law, the act and declaration of all, and is, therefore, evidence against each, still an act cannot be varied, qualified or explained by a declaration which amounts to no more than a mere narrative of a past transaction. Acts and declarations of conspirators are thus admissible only when made and done during the pendency of the unlawful enterprise, and in furtherance of its objects. If made or performed ata subsequent period, they are merely narrative, and not admissible. (1 Greenl. on Ev., § 111; Taylor on Ev. [text book series], §§ 589, 590, 593; N. Y. Guar. and Ind. Co. v. Gleason, 78 N. Y., 504, 515; People v. Gorham, 16 Hun, 93.)

As the evidence under consideration consisted of mere declarations in regard to a past transaction, and were not made in furtherance of any unlawful purpose, it was not, we think, rendered competent by the previous existence of such purpose, nor by any conspiracy that may have existed to accomplish that purpose.

I find nothing in the case of Wright v. Nostrand (94 N. Y., 31) to sustain these rulings. It was there held that where a judgment-debtor was called as a witness for the defendant, to give material evidence, his testimony in supplementary proceedings was admissible not only against him, but also against all the defendants for the purpose of affecting his credibility by showing conflicting statements. In this case William Spaulding, the grantor, was not called or sworn as a witness. There was no objection to the evidence in his behalf. The objection was specific, that it was incompetent against Philo B. Spaulding, the grantee. Under such an objection the evidence was received.

The evidence of the grantor’s declarations made subsequent to such transfer, and his evidence given in proceedings supplementary to execution, was, I think, incompetent as against Philo B. Spaulding, the grantee, and that the exceptions to its reception were well taken. For the error in admitting such evidence I think the judgment should be reversed.

Judgment reversed on the exceptions and a new trial ordered before another referee, with costs to abide the event.


author: .Hardin, P. J.:

text:
    JOHN D. HERRICK, Respondent, v. GEORGE M. STARKWEATHER, IDA M. STARKWEATHER and GEORGE M. STARKWEATHER, as Executors of the Last Will and Testament of LOVINA E. STARKWEATHER, Deceased, Appellants.

      Agreement to hom’d and corre for a grantor of real property in consideration of a cowoeyance thereof — remedy for a breach thereof — what constitutes a breach.

    In an action brought to set aside a conveyance of real estate in the village of Worcester, by the plaintiff to his daughter,' Lovina E. Starkweather, it appeared that the deed contained a recital of a consideration of the sum of $500, whereas no money consideration passed or was intended to pass between the parties. The daughter removed from the premises on April 1, 1884, and rented them to one Seeley, and thereafter continued to reside at Decatur, at a distance of about five miles from Worcester, until her death in 1886. During one-half of the two years prior to April 1, 1884, the plaintiff resided on the premises with, and was supported and cared for by, the said Lovina E. Starkweather.
    The judge found as a fact that neither Lovina nor George M. Starkweather, her husband, ever refused to allow the plaintiff to live with them or in their family, but were willing to receive him; that at the time of the. said conveyance from the plaintiff to Lovina it was understood between her and her husband and the plaintiff that he, the plaintiff, would continue to live with them and have a home in their family, as he had theretofore, since the death of his wife, whenever he desired to do so.
    The court found, as conclusion of law, that the deed should be reformed by striking out the sum of $500 and inserting as the true consideration the oral ,v agreement of Lovina E. Starkweather to support and care for the said plaintiff “on the premises described in the said deed one-half of the time as long as he should live,” and that the plaintiff was entitled to have the deed surrendered and the record thereof canceled and annulled, and to have the immediate possession of the said premises described in the said deed.
    No fraud or mistake was found to exist in respect to the deed in question, nor in respect to its execution and delivery.

      Held, that the evidence did not warrant a conclusion that there was a mistake, in fact, on the part of the parties to the deed.
    That, assuming that there was a parol agreement, as found hy the trial judge, that the grantee was to care for, support and furnish a home for the plaintiff for one-half of the time, during the remainder of his life, as a consideration of the conveyance of the premises in question, and that that agreement was carried out for two years, and thereafter was not observed and carried out in its exact tenor and spirit, yet the breach thereof did not furnish a sufficient ground for canceling and annulling the deed.
    That as the deed was delivered without any consideration attached to the delivery, and the oral agreement, as appeared in the findings, contained 'nothing to indicate that the full observance of its provisions was made a condition precedent to the taking effect of the conveyance, the failure to perform that agreement could not be relied upon as a breach of condition which would annul the deed, and would only supply the legal ground for an action for damages for a non-performance of so much of the agreement.

      Bolen v. Bolen (44 Hun, 362); Quick v. Siuyvesant (2 Paige, 84); McHenry v. Hazard (45 N. Y., 580) distinguished.
    That the plaintiff having, in accordance with the agreement, enjoyed the privileges thereof for two years on the premises, and having subsequently received, or been offered, a fulfillment thereof by the daughter and her husband, and having himself consented to a modification thereof by receiving a fulfillment at the home of the daughter at another place; that there had been such a part performance of the agreement as to take it out of the statute of frauds, and that the plaintiff would be entitled, upon satisfying the court by clear evidence that such an arrangement was made, to a specific performance thereof, and that if for any reason a specific performance could not be had, to such damages as he might sustain by reason of a breach thereof.
    That the judgment should be reversed and a new trial be ordered, costs to abide the event.
    ' Appeal by tbe defendants from a judgment, rendered upon a trial by tbe court without a jury, at a Special Term beld in Otsego county, wbicb judgment was entered in tbe office of the clerk of tbe county of Otsego on tbe 8th day of November, 1888.
    Prior to the 9th day of December, 1880, tbe plaintiff was seized in fee of tbe premises described in tbe complaint consisting of a bouse and lot in tbe village of Worcester of tbe value of some $1,800. Plaintiff was a widower, bis wife having died in 1876. He bad two children then living, Lovina E. Starkweather and Alonzo Herrick; and be bad subsequent to tbe death of bis wife made his home part of tbe time with bis son and part of tbe time with bis daughter; and be continued so to do until tbe death of bis daughter wbicb occurred on tbe 2d day of May, 1886. She left a last will and testament, which was duly admitted to probate, wherein she devised her real estate to her husband for life, the remainder over in fee to her adopted daughter, Ida M. Starkweather. On the 9th day of December, 1880, the plaintiff duly acknowledged and delivered to his daughter Lovina E. Starkweather a warranty deed of the house and lot,- being the premises as described in the complaint. The deed contained a recital of a consideration in the following words: “ Witnessed, that the party of the first part, in the consideration of the sum of five hundred dollars ($500) to him duly paid, has sold and by these presents do grant and convey to the party of the second part, heirs or assigns, all the following described piece or parcel of land,” etc. No money consideration, in fact, passed between the parties at the time of the execution of the deed, nor is there any evidence that any was agreed upon other than such evidence as is furnished by the terms of the deed .which we have just quoted. The daughter removed from the premises April 1, 1884, and rented them to one Seeley, and she removed to Decatur, a distance of five miles from Worcester, where she continued to reside until her death. The daughter occupied the premises in question “ for about two years continuously prior to the 1st day of April, 1884; during which two years the plaintiff resided on said premises with the said Lovina E, Starkweather one-half of the time, during which one-half of said two years she supported and cared for him and provided him with a home on said premises.”
    It was found as a fact, by the trial judge, “ that neither said Lovina nor said George 1VI. Starkweather has ever refused to allow the plaintiff to live with them or in their family whenever he desired so to do.”
    The court also found: “That said George M. Starkweather is willing to receive the plaintiff in his family at any time during the lifetime of him, the said plaintiff.” Also found, “ that at the time of said conveyance from the said plaintiff to the said Lovina, it was understood between her and her said husband and the said plaintiff, that he, the said plaintiff, would continue to live with them and have a home in their family, as he had theretofore and since the death of his wife, and whenever he desired to do so.”
    The courts found as conclusions of law, viz.:
    “ (1.) That the plaintiff is entitled to have the deed of the premises in question reformed by striking out the five hundred dollars stated therein as the consideration and inserting the true consideration, viz.: The oral agreement of Lovina E. Starkweather to support and care for said plaintiff on the premises described in said deed one-half of the time as long as he should live.
    “ (2.) That the plaintiff is entitled to have the deed set forth in the sixteenth finding of fact surrendered up to him.
    “(3.) That plaintiff is entitled to have the said deed and the records thereof canceled and annulled.
    “ (4.) That plaintiff is entitled to the immediate possession of the said premises described in said deed.
    “ (5.) That plaintiff is entitled to the costs of this action.”

      Edick ds Smith, for the appellants.

      J B. Holmes, for the respondent.
   .Hardin, P. J.:

In the complaint no allegations of fraud or mistake are found in respect to the deed in question; nor does the evidence indicate, or the findings of fact present, any mistake or fraud in respect to the execution and delivery of the deed of the premises in question.

In Story’s Equity Jurisprudence, in laying down the rule for guidance of courts of equity in setting aside, canceling and directing to be delivered up agreements and other instruments, it is said in section 695 (1 Story’s Equity Jurisprudence) that the court will so do:

“ (1.) Where there is actual fraud in the party defendant, in which the party plaintiff has not participated.
“ (2.) Where there is a constructive fraud against public policy, and the party plaintiff has not participated therein.
“(3.) Where there is a fraud against public policy, and the party plaintiff has participated therein, but public policy would be defeated by allowing it to stand; and lastly, where there is a constructive fraud by both parties, but they are not in fa/ri delicto.”

In Stoddard v. Hart (23 N. Y., 562), it is said: “If a writing does not truly express the agreement of the parties; if anything was omitted which was agreed to be inserted; or if anything be inserted contrary to their intention, equity will relieve against the mistake by reforming the contract.” In that case it was “ not pretended that this understanding was to be expressed in any form of writing; and it was, therefore, held that equity will not “ reform the writing to make an agreement of a different effect from that which the parties intentionally entered into.”

In Nevius v. Dunlap (33 N. Y., 676), it was held that: “To entitle a party to a decree of a court of equity reforming a written instrument, he must show, first, a plain mistake clearly made out by satisfactory proofs. He must also show that the part omitted or inserted in the instrument was omitted or inserted contrary to the intent of both parties, and under a mutual mistake.”

In Mills v. Lewis (37 How. Pr., 422), it was said: “ An instrument cannot be reformed on the ground of mistake by one of the parties to it. It must be a case of mutual mistake by both parties, where there is no question of fraud involved, to authorize a reformation of the alleged mistake.” ' This doctrine was stated in Story v. Conger (36 N. Y., 676), the language of the court was, viz.: “ No fraud, however, is suggested, nor is it alleged that a mutual mistake existed on the point in question. One of these allegations is indispensable in a complaint asking for a reformation of the contract.”

In Wilson v. Deen (74 N. Y., 536), Raparlo, J., in speaking of this rule, says: “ The current of our authorities sustains the proposition that, both at law and in equity, one who sets his hand and seal to a written instrument, knowing its contents, cannot be permitted to set up that he did so in reliance upon some verbal stipulation, made at the time, relating to the same subject, and qualifying or varying the instrument which he thus signs. * * * It is only when through fraud or mistake a party has executed an instrument which he believes to be in accordance with the real agreement, but which is, in fact, different, that equity will relieve; and even then the mistake, as well as the agreement, must be made out by clear proof.” So far as the plaintiff’s case rests upon a reformation of the deed, we think it must fail.

First. The complaint neither alleges a mistake or fraud.

Second. The findings of the court do not present a case of mistake of fact or fraud in fact.

Third. The evidence, when carefully examined and considered, does not warrant a conclusion that there was a mistake, in fact, on the part of the parties to the deed, or that there was any fraudulent practice which led to its execution, on the contrary it appears that the intention of the grantor was to transfer the legal title to tire property to the grantee. The ordinary and apt words of a warranty deed were used for such a purpose, and at the time of the execution of the deed the grantor declared his intention to vest the legal title in the grantee, and the testimony of Cipperly, the magistrate, who witnessed the execution of the deed, and took the acknowledgment thereof, supports the inferences and intendments to be drawn from an inspection of the deed itself, he says: “ When I got into the house the deed was shown to me. There was no consideration expressed in the deed. I told them it was necessary to have some consideration in it I thought. The old man replied: ‘Well, I don’t know as it is very particular how much, as he was giving it to his daughter. He had given one house and lot to his son, and he was going to give this to her,’ and finally decided to put in $500 as the consideration. He directed me to put that in and I put it in, and then took the acknowledgment.”

This evidence is not contradicted, and the strength of it is increased by the circumstance that the plaintiff, though present at the trial, was not sworn as a witness to contradict it. (Rider v. Miller, 86 N. Y., 510.) We think a proper case for reformation of the deed was not made out, and that the conclusion of law directing a reformation of the deed was erroneous, and the exception thereto well taken.

Ought the deed to have been canceled and set aside ? In considering this question we must bear in mind that the complaint does not contain any averments of fraud, in fact, on the part of the grantee in obtaining the deed; nor is she charged with undue influence, or any other improper practices, to induce the execution and delivery of the deed to her. If we assume that there was a parol agreement, as found by the trial judge, that the grantee was to care for, support and furnish a home for the plaintiff one-half of the time during the remainder of his natural life, as a consideration for the premises in question, and that that agreement was carried out for two years, and afterwards it was not observed and carried out in its exact tenor and spirit, yet the breach thereof does not furnish a sufficient ground for canceling and annulling the deed. By the terms of that agreement, as found by the trial judge, its observance was not to begin until after the execution and delivery of the deed, and the performanee thereof was entered upon by the grantee, and the plaintiff enjoyed the performance of it for a period of two years or more, and apparently thereafter -waived a strict performance of it, and for a time accepted a modified performance by receiving the care, attention and home in the family of the grantee after she had left the premises in question.

The omission to perform the oral stipulation or agreement is not sufficient ground to set aside the deed, as there was no mistake of fact or fraud. The deed was delivered without any condition attached to the delivery, and the oral agreement, as appears in the findings, contains nothing to indicate that its full observance and completion were made a condition precedent to the taking effect of the conveyance. (Wilson v. Deen, supra; De Kay v. Bliss, 4 N. Y. St. Rep., 735.) In the case just cited it was said, viz.: “And when that is the nature of the agreement entered into, and the act is not to precede the conveyance itself, the failure to perform the stipulation cannot be relied upon as a condition to annul that conveyance, but it will sujDjfiy the legal ground work for an action for damages for the non-performance of so much of the agreement.”

The respondent calls our attentidn to Bolen v. Bolen (44 Hun, 362), and insists that it aids him in supporting the judgment in this case. We think otherwise. There the condition upon which the bond and mortgage were given was that the wife and son should return to the husband. The wife refused to permit the return of the son, and it was held that there had been a failure of the consideration of the mortgage.

This case differs very much from Quick v. Stuyvesant (2 Paige, 84), referred to by the counsel for the respondent. That was one where the land was conveyed for the purposes of opening a street, and there was no other consideration for it than the benefit which the grantor was to derive from the opening of this street: and by subsequent events beyond control of both parties the street could not be opened, and a reconveyance of the land was decreed in equity. Nor do we think the case of McHenry v. Hazard (45 N. Y., 580) aids the respondent. That case upholds the power of a court of equity to order a surrender and cancellation of written instruments obtained by fraud or held for inequitable and unconscientious purposes. We are of the opinion that neither the evidence in the case nor the findings made thereon sustain the conclusion of law to the effect that the deed should be given up and canceled.

(3.) Assuming that a parol agreement was made that the plaintiff should have a home for one-half of the time, during the remainder of his natural life with his daughter, and that arrangement was made contemporaneous with the execution and delivery of the deed, and that she received the deed with the promise to carry out that agreement, and furnished no other consideration to the plaintiff for the deed; and .that the plaintiff, in accordance with that agreement, enjoyed the privileges thereof for two years on the premises, and subsequently received or was offered a fulfillment thereof by the daughter and her husband, having himself consented to a modification thereof by receiving fulfillment at the home of a daughter at another place than the premises in question, we think there had been such a part performance of the agreement as to take it out of the statute of frauds; and the plaintiff would be entitled, upon satisfying the court by clear evidence that such an arrangement was made, to a specific performance thereof; and if for any reason a specific performance cannot be had, to such damages as he sustains by reason of a breach thereof.

Inasmuch as this is in the nature of a purchase-price or consideration for the premises which he had voluntarily conveyed'to his daughter, we see no reason why, as against her, the same may not be enforced, and as against the premises while held by her husband and daughter under her will, with the like force and effect that might be given to a vendor’s lien for purchase-money unpaid. Neither the husband nor the daughter Ida, in virtue of the will of Lovina, the daughter of the plaintiff, have any better title or interest in the land than Lovina possessed at the time of her death. There was considerable evidence given upon the trial tending to show that the conveyance was made for the purpose of effectuating a gift of the premises. The trial judge refused so to find, however.' If the parol promise was made to support the plaintiff one-half of the time as stated in the complaint and in the findings, as a consideration for the premises, we think that a court of equity has jurisdiction to enforce the same, or if, for any reason, the same cannot be specifically enforced by reason of the changed situation of the parties, it may award damages for a breach thereof and declare the same a lien upon the premises in question; hence we do not agree with the position of the defendant that in the event of such an agreement being found the sole remedy of the plaintiff is an action at law for a breach of such an agreement to recover damages. (Hammond v. Cockle, 2 Hun, 496.)

However, as the views we have already expressed lead to a new trial, we forbear further comment upon the merits of the case, as upon a new trial further evidence may be given in respect thereto by either side.

The judgment should be reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concurred.

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