author: By the Court — Robertson, J.

text:
    Joseph Kelly et al., Plaintiffs and Respondents, v. The Commonwealth Insurance Company of the State of Pennsylvania, Defendants and Appellants.
    1. A mere oral contract of insurance, supported by a sufficient consideration, which is to take effect forthwith, although it may be entered into cotemporaneously with an agreement by .the insurers to deliver, and the assured to accept subsequently, as a substitute therefor, a written policy by the former in the form usually adopted by them, becomes binding and remains in force until the delivery or tender of such policy. Until then, the condition usually inserted in such policies, requiring prepayment of the premium to make them binding, unless expressly adopted by the parties in such oral contract, forms no. part of the contract of insurance between them.

      2. A mere demand of the premium, without insisting upon it or tendering a valid policy, does not terminate the oral insurance.-
    3. Under such oral insurance, the insured may recover for a loss, although after it occurred, and while the insurers were ignorant of it, he paid them the premium, and received from them a written policy which was not binding on them, by reason of not being countersigned by one of their officers as was required in the body of it.
    4. Whether an exception lies to the admission of testimony elicited by questions put by a juror ? (Query.)
    (Before Moncriee, Robertson and Monell, -J. J.)
    Heard, October 15, 1862;
    decided, November 29, 1862.
    This was an action upon a contract of insurance, to recover for damage by fire to a stock of goods of the plaintiffs, in a store in the City of Yew York, on the, 11th of July, 1860. The character of the contract appears by the pleadings and evidence hereinafter stated.
    The defendants were a corporation, chartered by the State of Pennsylvania; the plaintiffs were partners under the firm of “ Joseph Kelly & do.” . Policies of insurance issued by the former, in the State of Yew York, according to their usual form, contained provisions that they are “not to “ be valid until countersigned by their duly authorized agent, “and are to be made and accepted in reference to conditions “thereto annexed, which are to be used and resorted to, in “order to explain the rights and obligations of the parties “thereto, in all cases not therein otherwise specially provided “for.” They commenced with witnessing that the defend- , ants had received a certain premium from the insured, for insuring the described subject of insurance, but had also a condition annexed, that “no insurance, original or continued, should (shall) be considered as binding until the “actual payment of the premium.”
    In the year 1.860, one David C. Hewson was the agent of the defendants, in the City of Yew York.
    In June of that year the agent of another insurance company, (Francis Campbell,) proposed to Hewson that the latter should take all the risks the former had obtained as such agent, and among others» an insurance on the plaintiffs’ stock and store, and subsequently sent a written application to Hewson, for insurance for the plaintiffs. Afterwards, about the 26th of that month, Hewson went, as testified to by one of the plaintiffs, (Kelly,)' to their store, told him he had come to make a survey; actually examined such store, and thereupon stated that he “ ivould take the risk * * make out the policy and send it down at seventy cents, (fourteen dollars on two thousand;) he would make it binding from the first of July,” and that the plaintiff (Kelly) “ should ha^e the policy.” Hewson, when examined as a witness, narrated his conversation at that time with Kelly, but could not recollect anything else of it but what he so narrated, which did not embrace any such promises. He admitted, however, that he transmitted the application to the defendants the same day, and told Campbell he “ would take the risk.” Before the first of July he obtained a written policy from the defendants, as applied for, signed by the other officers, but not countersigned by him, which he left with Campbell, directing him not to deliver it without payment of the premium, and stating that until then he would not countersign it. A clerk of Campbell, (Crary.) by his direction, took such policy on the day he received it, and again a day or two afterwards, but before the fire, to the plaintiff Kelly, and offered it to him, but he was not ready to pay the premium. He again took it to him on the ninth of July, when the same plaintiff promised to call next day and pay such premium, but he did not. This was denied by the plaintiff Kelly, in his testimony. He stated that such clerk only told him to come to Campbell’s office to get the policy. A.statement of such clerk, under oath, was also read, to the effect that it was on or about the 10th of July that he had notified the plaintiff Kelly, that such policy was ready to be delivered to him.
    Some time in July, before the 10th, the plaintiff Kelly had a conversation in the office of Mr. Campbell, respecting such written policy, with a Mr. Brewster, who had his office on the same floor with Campbell, and was requested by him, on account of Illness, to ascertain what the plaintiff, who was there, wanted. According to such plaintiff’s testimony, he desired to transfer certain machinery, on which he had an insurance for five hundred dollars, to the store in question, and said to Brewster, in reference to such policy, which was then present, “add five hundred dollars more to this and I will pay you the whole of it now, and you can send it to my store, as I am going out of town and will not be back for a week.” Brewster declined this proposal, but promised “to take the memorandum down and put it in it (the policy) with the direction to send it to the plaintiff Kelly’s store, and collect the premium there for the whole.” Brewster, in his testimony, stated that he did not recollect that Kelly said anything about paying the premium or transferring the insurance, although he remembered that he desired some alteration. He made a memorandum of the plaintiff’s request, put it in the policy and redelivered both to Campbell. The latter directed his clerk to take such policy to Hewson to get it altered, but by mistake he carried and delivered it to the plaintiff Kelly.
    On the next morning after the fire, (July 12th,) before Campbell had heard of it, the plaintiff Kelly applied to him for the policy, which he gave him, but asked for fourteen dollars. The plaintiff looked at it and said, “ This five hundred dollars that I applied for has never “ been put into which Campbell replied, “ No," congratulating him, however, on having a cover of $2,000 from a good company. On the same morning the same plaintiff called on Hewson to countersign the policy, which he refused, because the premium had not been paid.
    In relation to the party for whom he acted as agent, Campbell testified that, his commissions as a broker were paid by the compan;-; when he wanted his commission he went to them; that “it is the custom among insurance companies to pay a commission to brokers. They send the policy to the broker, and he collects the premium from the assured and pays it over to the company, deducting his premium.” The plaintiff Kelly did not agree to pay him. commission in this case, and he had not been paid by either party. One of the conditions attached to the written policy in question was, that “the persons, if any other than the assured, who procured the insurance in it to be taken by the company, should be deemed to be the agents of the insured, and not of the company, in any transaction relating to such insurance.”
    After setting out the incorporation of the defendants, the partnership of the plaintiffs, and the application by the latter to the former for the insurance in question, the complaint alleged, in substance, as follows: That the defendants, on or about the 28th of June, 1860, agreed to insure the plaintiffs against loss by fire to the amount of two thousand dollars, on their stock, materials in and interest in the lease of the store in question, for a year from the first of July following, at a premium of fourteen dollars; which the plaintiffs agreed to pay as a consideration for such agreement to insure, and neglected to insure themselves in any other way on the same subject matter. That it was then and there agreed between both parties, that such -insurance should be valid and binding on the part of the defendants, for such time and sum. That the plaintiffs owned such stock and lease. That the fire, which it mentioned, produced the loss for which indemnity was claimed. That the plaintiffs duly fulfilled all the conditions of such agreement and insurance on their part, tendered such premium on the 12th of July, which the defendants refused to accept; gave notice of their loss, and proof of the fire and damage, more than sixty days before the commencement of the action, and demanded payment. The complaint also, in addition to such agreement to insure, set forth another agreement by the defendants, in consideration of the premises, to deliver to. the plaintiff a policy of insurance, in the usual form of poli cies issued by them, for the like amount and term, in a reasonable and convenient time. It further alleged, that they executed and delivered an instrument, whereof a copy was annexed to the complaint, and waived the payment of the premiums and the countersigning of the policy, as conditions precedent; which policy, so annexed, was alleged to be in the usual form of policies issued by the defendants, except that it was not countersigned.
    The original policy, of which a copy was thus annexed to the complaint, contained the provisions before stated, that it should not be binding until the premium was paid, nor unless it was countersigned by the agent of the defendants in New York, and that the persons procuring the insurance should be deemed the agents of the insured.
    ' The answer contained a general denial of each allegation in the complaint, not previously therein “well and “ sufficiently answered unto, confessed and avoided, tra- “ versed or denied.” It alleged, however, before such denial, that an application was made to the defendants for insurance, by the plaintiffs, upon the subject mentioned in the complaint; that they thereupon agreed to deliver to the latter a policy of insurance, in the usual form, and containing the usual clauses and conditions of policies made by them for the State of New York, upon the property, for the amount and term mentioned in the complaint, upon the express condition, however, that the plaintiffs should, as a condition precedent to the delivery and binding effect of such policy, pay the premium required as a consideration for making such insurance; and that the insurance should not be binding until the payment of such premium, and until the policy should be countersigned by their agent in New York; that the defendants made the instrument set out in, and of which a copy was annexed to, the complaint, notified the plaintiffs that they were ready to execute such agreement on their part, and have the policy countersigned on payment of the premium, and offered to have it so countersigned and delivered on such payment, and demanded the same; but the plaintiffs refused to pay such premium, and the defendants never waived the payment thereof, or the countersigning of such policy, as conditions precedent of such insurance.

      An exception was taken by the defendants’ counsel, to the admission of the conversation before mentioned, between the plaintiff, Kelly and Brewster, in reference to such policy of insurance. The Court allowed the former to state the transaction, saying that if it should not be connected with the defendants, the Court would strike it out. Ho subsequent application was made on the subject. Both Brewster and Campbell were subsequently examined by the defendants as to such conversation.
    Various requests were made by the counsel for the defendants to the Court, to instruct the Jury upon various points as follows:
    First: In regard to Campbell’s agency: (1.) That if he. had been requested to procure insurance for the plaintiffs, he was their agent; (2.) That the provision in the policy made him so;
    Secondly. In regard to the payment of the premium: (1.) That there was no sufficient proof of an agreement by the defendants to make the insurance binding, without receiving the premium; (2.) That Hewson had no authority to waive its prepayment; (3.) That there was no insurance, if the parties did not intend to make the contract binding without payment of the premium;
    Thirdly. In regard to the oral contract: (1.) That all the conditions of a policy in the usual form, would apply to an oral contract which contemplated the execution of such a policy; (2.) That no oral contract was made between the parties, except to insure by a policy from the 1st of July, following; (3.) That the oral contract ceased to operate, when such policy was ready and offered for delivery; (4.) That there was no existing contract to insure, if the policy was to be received by the plaintiffs, and the premium paid before the loss occurred;
    Fourthly. In relation to the delivery of the policy; that leaving it with Campbell, or the handing of it by the latter to Kelly, was no delivery;
    Fifthly. In regard to the effect of the policy ; that it was inoperative even if delivered, both because it wanted the agent’s signature, and because the premium had not been .paid;
    Lastly. In regard to the interview between Kelly and Brewster; that no proper tender then took place, because the latter was not the defendant’s agent.
    After stating that the plaintiff, Kelly, had stated on his examination as a witness, that Hewson came to the store of the plaintiffs, and after examining it and the stock, promised, that the defendants would insure them for a certain sum at a certain rate, and for a certain time, and said “ that they might consider themselves insured from that time,” the Court charged the Jury, “that if they should find the facts as stated by Kelly to be true, this would constitute a contract between the parties, and the defendants would be liable, because under such a state of facts,” the delivery of a policy “would be immaterial.” And, also, that the plaintiffs would be entitled to recover, even if there had been “no such arrangement as to make a binding agreement to insure as of that date,” but merely a proposition to insure sent on to Philadelphia, and “ the policy came back and was delivered to the plaintiffs, no premium being exacted or anything remaining to be done;” or, “if the policy was handed to the plaintiffs, as intended to be an effectual agreement, binding on the defendants, insuring the plaintiffs;” but that the defendants were not liable “if there was no delivery of the policy.” It also charged, that “the effect of what passed between Kelly and Brewster * * was not material in any aspect of the case.” It refused to charge in any other manner the propositions requested by the counsel for the defendants, to be given to the Jur$* as instructions, to which the latter excepted.
    A verdict having been given for the plaintiffs, the defendants appealed from the judgment entered thereon, as well as from an order denying a new trial, which appeals were now heard.

      L. B. Woodruff, for defendants, appellants.

      I. The complaint alleges nothing more than an agreement of the defendants to execute and deliver to the plaintiffs, a policy of insurance in the usual form of policies issued by thern. This was not a consummated insurance, but, at most, an executory agreement. (Sandford v. Trust Fire Ins. Co., 11 Paige, 547.)
    II. The action is brought to recover on an alleged actual insurance of the premises, and not to compel the performance of an agreement to execute and deliver a policy whereby the plaintiffs should, be insured. The agreement alleged and proved according to the plaintiffs’ own testinjony, does not sustain the action. ...
    This is not in form or substance an action to compel the delivery of a policy.
    Such an action is to be tried .by the Court and cannot be tried by a Jury unless issues are framed or specific questions ordered to be tried by Jury.
    Besides, in order to set up such a cause of action the plaintiffs should aver that within a reasonable time after the making of the agreement, and before the occurrence of the loss, they tendered the premium and demanded the policy, and should require the delivery of a policy and. payment of the loss. (Perkins v. The Washington Insurance Co., 4 Cow., 645; Lightbody v. North American Insurance Co., 23 Wend., 18; Carpenter v. Mutual Safety Insurance Co., 4 Sandf. Ch. R., 408 ; Rockwell v. Hartford Fire Insurance Co., 4 Abbotts’ Pr., 179.)
    The plaintiffs are therefore not at liberty to say, on this appeal; that this action is at all founded on an executory agreement, by which the defendants became bound to insure them by a policy to be thereafter executed and delivered. They have no right of recovery unless they have established an actual insurance by a policy duly delivered. (Bunten v. The Orient Insurance Co., 8 Bosw., 448.)
    III. The defendants never delivered a policy, and the * plaintiffs have no cause of action founded thereon. It never became operative or of any force as a consummated contract of insurance.

      1. The plaintiffs obtained possession of the policy by a fraudulent concealment of the fact that a fire had occurred.
    2. The act of Campbell in giving the policy to the plaintiffs in no wise - bound the defendants,— both Campbell and the defendants being ignorant that, before the plaintiffs handed the premium to Campbell, the condition of the premises had wholly changed.
    3. Until the plaintiffs performed the conditions, they acquired no right; and after the fire the defendants had a right to decline accepting payment; and they did so.
    4. The plaintiffs could not by obtaining manual possession from Campbell, in the manner they did, defeat the condition of the policy which required it be countersigned.
    5. Nor that which declared that it should not be binding until payment of premium.
    6. There never was a moment when defendants were consenting that plaintiffs should have possession of the policy in its then condition, nor without payment of the premium before a loss.
    IV. The conditions of the insurance were not performed. The premium was not paid before the fire, and the policy was never countersigned by the agent. The policy could not become binding unless these conditions were performed, or were waived. (New York Central Insurance Co. v. National Protection Insurance Co., 20 Barb., 468; Jube v. Brooklyn Insurance Co., 28 Barb., 412.)
    1. No agent of the company in New York had authority to waive the expressed conditions of the policy which the defendants had signed in Philadelphia. (Dawes v. N. R. Ins. Co., 7 Cow., 462; Lightbody v. N. Am. Ins. Co., 23 Wend., 18; McEvers v. Lawrence, Hoffm. Ch. R., 171; Chase v. Hamilton Mutt Ins. Co., 22 Barb., 527.)
    2. The agent did not in fact waive the conditions, nor is there any evidence that he attempted to do so.
    V. If the action could be regarded as an equity suit, to compel the execution of a policy and to obtain a recovery for the loss, still the alleged agreement for insurance involved the same conditions, (as the complaint itself admits and avers,) and the plaintiffs were not entitled to recover.
    VI. It is not regarded as essential to the defense, or a necessary condition to the grounds urged on this appeal, but is nevertheless submitted as quite clear, that Campbell, (the broker,) was in the transactions in question, the agent of the plaintiffs, and not of the defendants.
    VIL The testimony of Kelly to the conversation between him and Brewster, who had no authority whatever to act for the defendants, was erroneously received, and the defendants’ exception was well taken.
    Hewson should have been permitted to state the reason why he did not countersign the policy. So also Hewson, the agent of the company, and their surveyor, should have been permitted -to estimate the damage done by the fire.
    The question put by the juror, whether the policy “would have been a perfect policy,” was not competent, and the defendant’s objection should have been sustained. The question sought and elicited nothing but the opinion of -the witness, and that opinion was upon a question of law only. (Frith v. Barker, 2 Johns., 327; Mills v. Hallock, 2 Edw. Ch. R., 652; Allen v. Merchants’ Bank, 22 Wend., 215; 15 Id., 482; Hinton v. Locke, 5 Hill, 437.)
    To answer the question of the juror affirmatively, was to contradict the very terms of the policy, which declared that it should not be valid. (Cortelyou v. Van Brundt, 2 Johns., 357; Hinton v. Locke, 5 Hill, 437; Parsons v. Miller, 15 Wend., 561.)
    VIII. The several requests of the defendants, for specific instructions to the Jury, were proper and in accordance with the law, and the refusal of the Judge to give those instructions was error.
    IX. The charge was itself erroneous:
    1. In the particulars in which it differed from the requests for instructions;
    2. It was error to state that the defendants are unqualifiedly liable, if the facts stated by Kelly were true;

      This assumed that the plaintiffs were relieved from the performance of any conditions: 1
    3. The charge treats the possession of the policy by the plaintiffs, as an actual and legal delivery, and as the voluntary act of the defendants;
    4. It disregards wholly the fact that it never was delivered by the consent of the defendants or of Hewson, their agent, in respect to which there was no conflicting evidence;
    5. It also disregards the fact that it was obtained horn Campbell after the Are; and by concealing the fact of the fire;
    6. It substantially directed a verdict for the plaintiffs;
    7. It was erroneous to say that there was no difference between an oral and a written insurance.
    On the contrary, it is submitted that there is no such thing as an oral insurance. (11 Paige, 547, [supra] ; 1 Phillips on Ins., 8; Morgan v. Mather, 2 Ves., 15; Smith v. Odlin, 4 Yeates, 468; Cockerill v. Cincinnati Ins. Co., 16 Ohio R., 148; Perkins v. Washington Ins. Co., 4 Cow., 645.)
    And although there may be a binding verbal agreement upon sufficient considerations to execute a policy, the operative contract by which a party is actually insured, is, and must be, a policy in writing
    The charge was erroneous in instructing the Jury that it was immaterial whether there was- an actual insurance by policy delivered, or an agreement to insure. The form of the action; the mode of trial; the statement of’the-cause of action, and the relief, are different.

      E. Pierrepont, for plaintiffs, respondents.
    I. The evidence abundantly sustains the verdict, and the correctness of the law as laid down by the Judge is well settled. (Lightbody v. N. Am. Ins. Co., 23 Wend., 24; Bidwell v. Astor Ins. Co., 16 N. Y. R., 263; Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch., 408; 1 Duer on Ins., 66, § 11; First Baptist Church v. Brooklyn Ins. Co., 19 N. Y. R., 305; 18 Barb., 69; Perkins v. Washington Ins. Co., 4 Cow.,
      645; N. Y. Ice Company v. A. Western Ins. Co., 23 N. Y. R., 357; S. C., 12 Abbotts’ Pr., 417; Rockwell v. Hartford Ins. Co., 4 Id., 179.)
    II. The contract of insurance is like any other contract, and is to be governed by precisely the same rules. (19 N. Y. R., 305.)
    III. Hr. Campbell was the agent of the insurance company. Upon this point there is no contradictory evidence.
    IV. After Kelly had paid his money and received the policy, he learned that it was imperfect, and called upon the agent and asked him to countersign it, which the agent refused to do.
    V. The plaintiff’s right to a perfect and valid policy depended upon the contract, and the defendants’ right to their premium depended upon the same contract. Neither the right to the policy nor the right to the premium depended upon the fire at all—those rights were fixed before the fire, and were in no respect altered by its occurrence. Had there been no fire, the insurance company could ' have collected their premium, and the plaintiffs could have compelled delivery of a perfect policy.
    VI. The insurance contract was complete, and took effect on the first of July. The fact that the fire happened before the time when the premium was paid, and the policy delivered, does not change the rights of the parties.
   By the Court — Robertson, J.

Under the evidence and charge to the Jury in this case, the only embarrassment grows out of that part of the complaint which states a cause of action arising out of the execution of the policy, of which a copy is annexed. The testimony of Kelly, one of the plaintiffs, by itself, shows clearly the making of an independent oral contract to insure, irrespective of any agreement to deliver a policy. The question of the reliability of such testimony, and the making of such contract, were fairly left to the Jury, as matters of fact. . The only questions to be considered in regard to such contract, are those raised by the requests to charge, to wit: Whether, as the parties contemplated the making of a policy in a certain form, the same conditions were grafted on such contract as would be contained in such form, and whether the tender of a policy in such form and demand of the premium, and the refusal of the latter, would not terminate the oral contract. I apprehend no such construction can be given to the original contract: otherwise if the policy had failed to be returned from Philadelphia before the beginning of the risk, the plaintiffs would have been without insurance altogether. It certainly became binding the moment it was made, and the utmost effect that can be given to the additional promise to execute a policy in a certain form, is that, upon the tender of that policy, and a demand of the premium, the oral contract should cease. But, in this ease, no such policy was ever prepared; the only one prepared,* was one that declared it to be only obligatory when ratified by the agent for the defendants. Unless the defendants waived that condition when tendering it, if they ever made such tender, they could not escape from the continuing obligation of the oral contract. In regard to that branch of the case, the charge, of the Court, as well as its refusal to charge, is unimpeachable.

So, too, the refusal to charge that Campbell was not the agent of the defendants, in regard to any material fact, is warranted by the facts. The only important point of his agency was his receipt of the policy. There was evidence that Hewson, the acknowledged agent of the defendants, employed Campbell to deliver the policy, and receive the premium. His delivery of it was, therefore, theirs, as he did not make it until he received the premium. There was no pretense that the delivery to Campbell was as the agent of the plaintiffs; indeed, the defendants contended to the contrary. In regard to the premium, it was actually paid before the policy was delivered, and its prepayment formed no part of the oral contract to insure. It was not necessary, therefore, to establish either its waiver, or any authority to waive it. What the parties intended in regard thereto, is wholly immaterial, if such intent was not conveyed in the language by which the contract was formed The payment of the premium, after the fire, did not affect the agreement between the parties; by the oral contract credit was given to the plaintiffs for it, at least until a proper policy should be tendered, and such premium demanded. The conflicting testimony of the plaintiff, Kelly, and Oampbell’s clerk, (Orary,) left it uncertain whether the premium ever was demanded, and the actual payment corresponded in time with Kelly’s last promise to pay it. Campbell, at all events, in demanding the premium, for which he was the agent of the defendants, never dealt with the plaintiffs as though desirous of ending the oral contract, since he sent to them several times for it. I do not see how, if the defendants chose to carry out their agreement to execute a policy, by receiving the premium, its time of payment, whether before or after the fire, could make any difference. The only point remaining in the requests to instruct, except that as to the interview between one of the plaintiffs and a temporary representative of Campbell, is the refusal of the Court to instruct the Jury that the policy in question was inoperative, because it was not countersigned by the agent of the defendants.

The complaint clearly contains two causes of action, although, perhaps, not distinctly enumerated as such. The statement of the second cause, growing out of the written policy, would necessarily have been insufficient to maintain a legal action, without the allegation of waiver of the countersigning of such policy by the agent for the defendants. In the absence of that, it might have been sustained as an action to compel the countersigning, and then to recover on such countersigned policy, which are causes of action that may be joined. (Bunten v. Orient Insurance Company, 8 Bosw., 448.) But the summons is merely for a money demand on contract, and there is no demand for relief, except damages. The complaint concedes the inefficiency of the policy, unless properly delivered and the signature of the agent waived; while the answer virtually admits its efficiency, if both those contingencies occurred. The request, therefore, to charge absolutely that “ the policy was ineffective and inoperat- “ ive, for the reason that it was not countersigned by the “ agent,” was too broad and general, without the qualification, unless such signature by such agent was waived. A charge in the form requested would have been, in substance, that nothing could atone for the absence of the signature. The defendan ts had a right to aslc that the Jury might be instructed, that unless the plaintiffs proved the waiver, they could not recover, because that was the issue, but not merely and absolutely that a policy in the same form, unsigned by the agent, was not binding, because no such issue was involved, notwithstanding the change in the form of pleading, Juries are confined in their findings to the issues actually made by them. Indeed, the Court, by charging that the plaintiffs were entitled to recover, “ if the policy was delivered to them, nothing remaining to he done, the defendants being competent to waive any “provision in their policy that it should not take effect unless “ certain things were done,” or “ if it was handed to them “as intended to he an effectual agreement binding on the defendants,” virtually conceded the effect of the conditions as to countersigning and prepayment of premium, and every other provision to render it inoperative, contained in it. It virtually said the converse; that if anything remained to be done, required by the policy to be done to make it binding, or if it was not intended to be an effectual agreement binding on the defendants, it was not so. Hot much stress was laid, in the argument, upon this, and no great reliance was probably placed upon it at the trial.

The only remaining point as to which an instruction was requested was, the conversation between one of the plaintiffs and Brewster, a temporary representative of Campbell ; this was to the effect, that what was said or done by the former to the latter, was not a tender of the premium to the defendants. In the view I have taken of this case, it was not necessary for the plaintiffs to tender- any premium ; it was not alleged in the complaint, and the plaintiffs’ case did not depend upon it. As to the exception taken to the admission of the conversation, it was properly overruled. The evidence shows that Campbell, being employed as a sub-agent by Hewson, to deliver the policy and receive the premium, and interested to earn his commissions as a broker, sent to Kelly to notify him the policy was ready; the latter went to the office of the former to procure a change in the policy, and found Campbell unwell in an adjoining office, who employed a friend (Brewster) to receive Kelly’s communication; he did so, wrote a memorandum of it, and put it in the policy, where it was seen by Campbell. It was sent by him to Hewson, but went to Kelly by. mistake. Kelly had a right to show that he had not refused, but only delayed, with the defendants’ assent, to pay the premium ; that he went to Campbell’s office to give his reason for such delay, and that such reason was communicated to Campbell. When they delivered him the policy and returned the memorandum, which return, he had reason to believe, was virtually a denial of his request, he promised to pay the original premium, and paid it at the time. The taking down of such conversation by Brewster, and the making of such memorandum and inclosing it to Campbell, were features in the dealings between the parties, to show that there never had been any intention to abandon the contract of insurance with the plaintiffs. The defendants, at that time, could have sued him for the premium and recovered; there was no reason why they should not be equally held for the insurance, unless, upon a tender of the policy and a peremptory demand by them for the premium, the plaintiffs had refused to pay it. The evidence was admitted in the first place, subject to be stricken out, if not connected with the defendants. The Court instructed the Jury that it was immaterial No application was made to strike it out, but simply a request- to pass upon its effect, while the defendants themselves introduced Brewster and Campbell to testify as to such conversation. Under such circumstances the exception should not prevail.

Hewson’s reasons for not signing the policy were wholly immaterial and properly excluded. The question of the Juror, which was objected to, “ Would it have been a per-“feet policy, if he had paid the premium?” had once already been put and answered, without objection; it was not objected to until repeated, and seems to have been put more with a view either of calling the witness’ attention to the impropriety of sending an imperfect policy to procure the premium, or inducing him to reflect whether he did so, or, perhaps, showing that the signing by the agent had been waived. It certainly was not designed to get at the witness’ opinion on a mere question of law. There is one view in which, even in that aspect, the question was not objectionable. The policy purports to be made in the State of Pennsylvania, and, of course, should be governed by its laws, in its interpretation; the witness had been agent for an insurance company of that State, and might have been familiar with its laws upon that subject; at all events, the objection was not put upon the ground that he was not an expert, which the objector is bound to specify. I have not been able to find any authority for the responsibility of a party for a Juror’s improper question; one has as much right to except to it as another, and neither has the power to withdraw it. It would be rather hard to make either party suffer for the illegal questioning of a Juror. A more appropriate remedy would be to move to strike out the answer, or to call upon the Court to direct the Jurors to disregard it. But in this case the defendants were too late with their objection, after allowing the question to be asked and answered once without it.

Hewson clearly was not proved to be such an expert as to allow him to testify as to estimated damage, if such a mode of proof is admissible at all, and the question put to him to that effect was properly excluded.

From all the circumstances, it appears that the Jury had a right to find, that a valid oral contract to insure was made, determinable on the execution and delivery of a written contract; that such delivery and the rigorous demand of the premium, so as to terminate the oral contract, was delayed until after the fire ; that the premium was then paid, and an imperfect policy delivered, intended to have been made perfect, by the defendants, on the payment of the premium. It is clear that for such premium the defendants, on the 28th of June, intended to have taken the risk of $2,000 for a year; they had a right to stop the credit for the premium and the oral contract, by presenting a perfect policy and demanding the former. They did not exercise the right, and when a loss has occurred, they seek to evade it. Their agent did not put his objection to their liability, at first, upon any ground but the omission to countersign.

The judgment and order denying a new trial must be affirmed, with costs.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J. Barbour J.

license: Public Domain

text:
    Catharine Fogal et al., Plaintiffs and Respondents, v. Joseph Pirro, Defendant and Appellant.
    1. The mere production of an ancient deed by the party claiming under it, does not entitle him to read it in evidence without further proof.
    2. As against an action of ejectment by the remainderman, the statute of limitations does not begin to run in favor of a person in possession under the termor, till the determination of the precedent estate.
    3. Where a mortgage executed by husband and wife, of lands belonging to the wife in fee, and of which the husband is tenant by the curtesy, is foreclosed after the death of the wife, by proceedings against the husband, without joining the heirs of the wife, the purchases takes only the life estate; and it makes no difference that the Sheriff’s deed on the sale'purports .to convey the fee. And the mortgage being extinguished by such sale, an action by the heirs of the wife to recover the land from the purchaser, after the death of the husband, cannot be sustained as an equitable action to redeem; nor can it be sustained in the aspect of an action in the nature of ejectment, where, as in this case, a deed under which the wife claimed, which was in the nature of a release to her by numerous heirs of her devisor, was executed by only a part of those named in it as grantors, and neither acknowledged or recorded, nor proved to have been delivered. Per Barbour, J.
    (Before Bosworth, Oh. J., and Barbour and Monell, J. J.)
    Heard, April 23;
    decided, December 27, 1862.
    This action was brought by Catharine Fogal, Sophia Randall, Peter Provoost, Amanda Tyte, Charles M. Day, John Fogal, Alexander Tyte and Colloon Randall, against Joseph Pirro and John Raab, to redeem a certain lot in Essex street, New York City, alleged in the complaint to belong in fee to the plaintiffs, from the operation of a mortgage, and to regain the premises.
    The complaint alleged, that on the 9th of November, 1804, Peter Colyer, of Kings County, was seized in fee and possessed of three lots of ground, in the City of New York, one of them being on Eagle street; that he then made his will, whereby he gave to his three daughters, Eve, Margaret and Catharine, each one lot of land, and died soon after, without having revoked or altered such will, and leaving his said three daughters and other children, and his widow, him surviving, and that at the time of the testator’s death each of the said three daughters was married—Eve, to John Provoost; Margaret, to George Tiebout; and Catharine, to John D. Provoost.
    That by a deed dated May 10, 1805, made between Margaret Colyer, widow of Peter Colyer, Charles Colyer and Catharine his wife, Jacobus Colyer and Jane his wife, Peter Colyer and Eve his wife, William Van Cott and Jane his wife, John Provoost and Eve his wife, George Tiebout and Margaret his wife, and John D. Provoost and Catharine his wife,—reciting, among other things, that the said Charles, Jacobus, Peter, Jane, Eve, Margaret and Catharine were the children, devisees and heirs-at-law of Peter Colyer, deceased, that doubts had arisen respecting the construction of his will, and that the parties desired to carry the intention of the testator into effect—the said parties, other than John D. Provoost and his wife Oathaine, granted, bargained and sold to the said Catharine and to her heirs and assigns forever, the lot of ground in Essex street, which was the subject of this action; and that the said Catharine was and continued in possession of such lot, up to her death, in 1810.
    That in June, 1809, John D. Provoost and Catharine his wife executed a mortgage to Ezekiel Bishop, covering the lot in Essex street, and also a lot in Charlton street, which belonged to John D. Provoost, to secure to Bishop the payment of $800, one year from the date of the mortgage.
    That Catharine, the wife of John D. Provoost, died in February, 1810, leaving her husband and her children, Margaret, Catharine, Eliza, Sophia and Peter, surviving, and that Margaret, the widow of Peter Colyer, died in 1811.
    That after the death of his wife, John D. Provoost continued to hold possession of the Essex street lot until September, 1815.
    That in July, 1815, a foreclosure suit was brought in chancery, upon the said mortgage, by Bishop against John D. Provoost as sole defendant, which resulted in a decree of foreclosure and sale to satisfy the amount then due, with cost, amounting in all to $1,077.98; and that in September, 1815, the lot in Charlton street was sold under the decree for $850, to James Stansberry, and the lot in Essex street to Bishop, the mortgagee, for $750, who respectively paid their bids, and received deeds of conveyance in fee from the master. That in Eovember, 1815, Bishop conveyed the Essex street lot to John Ackley; in 1822, Ackley conveyed it to William Eelson, who died in possession; in 1850, the lot was sold under a judgment in a suit to which none of the plaintiffs in this action were parties, to John Raab, who received a deed of conveyance therefor, from the Referee and Eelson’s heirs, and entered into possession; and in August, 1856, Raab conveyed the premises to Pirro, the defendant in this action.

      That John D. Provoost died in 1841. Margaret, daughter of Catharine Provoost, married E. Morgan, and in 1832 died without issue, and intestate. Eliza, another daughter, married Charles Day, and in 1838 died, his widow, leaving two children—Charles M., one of the plaintiffs in this action, and Amanda, who married Alexander Tyte, (and who was, with her husband, named as plaintiff.) Catharine,. daughter of Catharine Provoost, married John Eogal, (both plaintiffs.). Sophia, another daughter of Catharine Provoost, married Colloon Randall, (also plaintiffs;) and that all the last named persons, as well as Peter Provoost, were still living. That the mortgage executed by John D. and Catharine Provoost to Bishop, if not satisfied by the decree, had been fully paid and satisfied; that the defendant had possession of the premises, claiming to be the owner in fee, and refused to surrender or to inform the plaintiffs what, if anything, was due upon the mortgage.
    The plaintiffs demanded judgment, requiring the defendant to surrender the premises, or that an account be taken of the amount, if anything, due upon the mortgage, and that, on payment by the plaintiffs of that amount, the mortgage be declared satisfied, and the defendant be required to surrender.
    The answer admitted the conveyance from Raab to the defendant Pirro; alleged that at the time of the commencement of this action the defendant had, and still had, a valid title to, and was in possession of, the premises, as owner in fee; that the defendant, his predecessors and grantors, have held and possessed the premises adversely to the pretended title of the plaintiffs for more than twenty years prior to the commencement of the action; and that neither the plaintiffs nor their ancestors had been seized or possessed of the premises within that period; and denied everything in the complaint not admitted in such answer.
    Upon the trial, before Mr. Justice Hoffman, in March, 1860, the plaintiffs proved the title in fee to have been in Peter Colyer, by a conveyance made to him in 1784. They then read in evidence the will of Peter Colyer, mentioned in the complaint, dated Kovember 9th, 1804. The devise to the plaintiff’s ancestor, Catharine Provoost, is in the following words: “Item—I give and bequeath to my daughters Eve, Margaret and Catharine, each one lot of land, lying in the City of Kew York, situate, one in Eagle street, two in Essex street.”
    The plaintiffs then offered in evidence, as an ancient deed, without further proof, a paper purporting, in the body of the instrument, to be a deed, executed by the widow and children of Peter Colyer, dated May 10, 1805, which was objected to by the defendant, admitted, and exception taken.
    They also proved the mortgage executed by Provoost and wife to Bishop, in 1809, with the decree and sale on foreclosure, in 1815, as stated in the complaint; that the complainant received the full amount of his decree, including costs, out of the proceeds of the sale; and that the remainder of such proceeds, being $511.94, was paid over to John D. Provoost, the defendant in such foreclosure suit. Also, that John D. Provoost died in 1841, leaving five children, of whom Sophia and Catharine were married before their father’s death, and, with their husbands, were still living. Eliza married Charles Day, and survived her husband (who died in 1838) some years, and died leaving two children, Charles Day and Amanda Tyte. Margaret died in 1832, leaving no issue, and her husband had since deceased; and Peter was yet living.
    Catharine Eogal, one of the plaintiffs, and wife of another plaintiff, was then offered as a witness by the plaintiffs; the defendant’s counsel objecting, on the ground that she was the wife of one of the plaintiffs. The objection was overruled, and the Court directed that the witness be sworn on behalf of the plaintiffs other than herself and her husband; the defendant’s counsel excepting. In giving her testimony, after stating that she was the daughter of John D. Provoost, and giving some details of marriages and deaths in the family, she said: “ I recollect that my mother had a lot in Essex street; I have been on the lot in Essex street as long as I remember, and during the life of Aunt Tiebout; she had possession of it; my mother granted her the use. I know that lot; I played on it.” Upon her cross-examination, she said: “My mother is dead ever since I was ten years of age; my father was living when I played on the lot in Essex street; nobody lived there in 1837; it was vacant; there was no house on it as long as my mother lived; there were two lots in Essex street that we played on.” No further evidence was given by this witness, or any other, touching the possession of the property by Catharine, or her husband.
    Oolloon Bandall, one of the plaintiffs, and husband of another, was also offered as a witness, sworn in the same manner, and testified as to marriages and deaths in the family, under like objections and exceptions.
    The plaintiffs then rested, when the defendants’ counsel moved to dismiss the complaint; which motion was overruled and exception taken.
    The defendants proved the conveyance to Baab in 1850; that he then entered into possession, erected buildings, received rents, &c.; and also his deed to Pirro, and the entry of the latter in 1856; and the case was then argued and submitted.
    The Judge, in a written opinion, decided that the plaintiffs Eogal and Bandall were entitled to redeem the whole or a portion of the mortgaged premises, and, by an order of Court sent the cause to a Beferee, to take and state an account, showing the amount due upon the mortgage, . assuming that $227 was due in 1815, and computing interest after August, 1841, (the date of the death of John D. Provoost,) and also the amount paid by Bishop and the several persons holding under him, for improvements, taxes and assessments, and the amount of the rents and profits received, or which, by due care and diligence? might have been received by them, and to report; to which order the defendants excepted.

      The Referee reported in detail, showing (with corrections made by the Court) the amount due against the mortgagors to be $5,534.07; which was excepted to by the defendants.
    Upon the coming in of the report, the cause was again brought on to be heard on the pleadings, proofs and Referee’s report, before Mr. Justice Hoffmax, at Special Term in April, 1860, when he held, that although some of the plaintiffs were barred by the statute of limitations, the others, who were not barred, were entitled to redeem their share of the land, on payment of their portion of the debt, and thereupon a judgment was entered, dismissing the complaint as to the plaintiffs Peter Provoost, Amanda Tyte, Charles M. Day and Alexander Tyte, (upon the ground that they were barred by the statute of limitations,) directing that Catharine Eogal, SophiaRandall, John Fogal and Colloon Randall pay to the defendants, within three months, $2,767.03 being one-half of the amount found due, and that, upon such payment being made, the defendant execute and deliver to them his deed, conveying to them one undivided moiety of the premises,- and directing that the complaint be dismissed as to those plaintiffs, in case they should fail to pay within the time limited.
    The defendant Joseph Pirro excepted to some of the findings of facts and conclusions of law filed by the Judge, and appealed to the General Term. The plaintiffs Peter Provoost, Charles M. Day, Amanda Tyte and Alexander Tyte, excepted to so much of the judgment as dismissed the complaint as to them, but did not appeal.

      Charles C. Egan, for the defendant, appellant.
    I. The complaint should have been dismissed.
    1. It did not state facts sufficient to constitute a cause of action. (Dunlap v. Gibbs, 4 Yerg., 94; Hoare v. Peck, 6 Sim., 51; Cuthbert v. Creasy, 4 Bligh, O. S., 125; Fyson v. Pole, 3 Younge & Coll., 266; Story’s Eq. Pl., 484, 503, 529; 3 R. S., 5th ed., 503, § 78; Humbert v. Trinity Church, 7 Paige, 195; 3 Atk., 313 ; Jenner v. Tracy, 3 P. Wms., 287, n. b; Beekman v. Frost, 18 Johns., 544, 560, per Spencer, J.; Giles v. Baremore, 5 Johns. Ch., 545, 553; Kidd v. Cheyne, 18 Jur., 348; Story’s Eq. Pl., § 426; 1 Story’s Eq. Jur., 365, and note.)
    2. The whole of the premises were claimed by all, and three could under no circumstances recover. (Cole v. Irvine, 6 Hill, 634; Gillett v. Stanley, 1 Id., 121; Miller v. McCan, 7 Paige, 451; Adams’ Eq., 3d Am. ed., 674; Story’s Eq. Pl., 3d ed., § 185; 1 Story’s Eq. Jur., §§ 484, 490; Henley v. Stone, 3 Beav., 355.)
    3. Ho disabilities were alleged, and on the face of the complaint the rights of all the plaintiffs were gone by lapse of time. (Beekman v. Frost, 18 Johns., 544, 560; Giles v. Baremore, 5 Johns. Ch., 545, 553; 3 Atk., 313; 3 P. Wms., 287, n. b.)
    II. Catharine Provoost was not shown to have been seized in fee of the premises at her death. 1. The pretended will was improperly admitted. (Jackson v. Luquere, 5 Cow., 221.) But it gave her only a life estate. (Harvey v. Olmsted, 1 N. Y. [1 Comst.], 483; Olmstead v. Olmstead, 4 Id., 56; Edwards v. Bishop), Id., 61; Mesick v. New, 7 N. Y. [3 Seld.], 163.) 2. The unrecorded deed was improperly received in evidence as an ancient deed. (1 Greenl. Ev., 9th ed., 28, § 21; 1 Id., § 144; citing Jackson v. Luquere, 5 Cow., 221; Jackson v. Lamb, 7 Id., 431; Wilson v. Betts, 4 Den., 201; Hewlett v. Cock, 7 Wend., 371.) 3. It was not executed by four of the parties in interest and referred to, nor acknowledged by any, and, therefore, could not pass a title to the estate of a feme covert. 4. There was no evidence that the parties executing it were the children of Peter Colyer. (Jackson v. Browner, 18 Johns., 37; Stokes v. Dawes, 4 Mason, 268; Jackson v. Russell, 4 Wend., 543; S. C., in error, sub nom. Russell v. Jackson, 22 Id., 277; Carver v. Jackson, 4 Pet., 83; Schermerhorn v. Negus, 2 Hill, 335.) 5. The deed, if it conveyed anything to Catharine Provoost, gave her but five-sevenths. 6. Catharine Fogal was an incompetent witness. (1 Greenl. Ev., §§ 334, 335; Hasbrouck v. Vandervoort, 9 N. Y. [5 Seld.,] 153.)
    III. Upon condition broken, the legal'title to the estate became absolute in Bishop, and he could have obtained possession without even notice to. the plaintiffs, either by ejectment or advertisement. (1 Rev. L. of 1813, 373, ch. 32, §§ 5, 10; Phyfe v. Riley, 15 Wend., 248.)
    The sale under decree of foreclosure in equity, was equivalent to sale under the power by advertisement. (See Doolittle v. Lewis, 7 Johns. Ch., 45; Slee v. Manhattan Co., 1 Paige, 48, per Walworth, Chancellor; Stat. of 1842 ch. 277, § 8.)
    IY. In the absence of proof of title in Catharine, as well as to quiet the title, the Court will presume that he was seized in fee, by deed or otherwise. (1 Greenl. on Ev., §§ 16 and 17; Ricard v. Williams, 7 Wheat., 109; Brattle Square Church v. Bullard, 2 Metcalf, 363.)
    Possession less than twenty years, coupled with circumstances indicative of ownership, has been held sufficient for the presumption of a grant. (Sumner v. Child, 2 Conn. R., 607, 628, 632, per Gould, J.; Clark v. Faunce, 4 Pick., 245.)
    V. Provoost never had an estate, as tenant, by the curtesy in these premises. The will gave but a life estate to Catharine Provoost. There was no proof that she was an heir of Colyer, or that she was married to Provoost; nor that the plaintiffs were the heritable issue of John D. and Catharine Provoost; nor that there was seizin in fact, or possession in her before her death. (2 Black. Com., 126; 1 Roper, 4, 6, 9; 4 Kent, 28, 30; Doe v. Hutton, 3 Bos. & P., 643; Perkins, § 453; Co. Litt., 29.)
    YI. Whatever estate Provoost had, yielded to and was merged in the greater, the legal estate, held by Bishop, the mortgagee, on condition broken. (4 Kent, 45; Cooper v. Whitney, 3 Hill, 95; Chesterman v. Gardner, 5 Johns. Ch., 31; Story’s Eq. Jur., § 629, p. 697; Power v. Lester, 23 N. Y. R., 527.)
    But the conveyance, if it did not operate by way of release or extinguishment, certainly did by way of forfeit-, ure. (Co. Litt., 251, a. b., 302, b.; 4 Kent., 34, 35; Cooper v. Whitney, 3 Hill, 95; Packer v. Rochester & Syracuse R. R. Co., 17 N. Y. R., 283.) No entry by him, after her death, could avail him to create or revive a tenancy. (1 Rop., 9; Perk., § 453; Co. Litt., 29.) The recovery in the foreclosure suit, even if defective as to plaintiffs, defeated the tenancy; and such recovery never having been reversed or set aside, no tenancy thereafter existed. (1 Rop., 42, and note ; Perk., § 475; 3 R. S., 5th ed., 28, §§ 151, 152; Adair v. Lott, 3 Hill, 182.)
    VII. If the mortgage by Provoost and wife was intended to pay his debt, then it was a disposition of her inheritance or estate absolutely, (on non-payment,) subject to no after reckoning or claim of hers. (1 Rop., 138; 3 Bro. C. C., 213; Neimcewicz v. Gahn, 3 Paige, 619.)
    VIII. Plaintiffs in foreclosure, .lose rights by lapse of time. (Anon., 3 Atk., 313; Jenner v. Tracy, 3 P. Wms., 287, note b; Doe v. Jesson, 6 East, 80, and note, quoting stat. 21 Jac., 1, ch. 16, § 1; 1 Rev. L. of 1813, 185, 186, ch. 183, § 3; Jackson v. Schoonmaker, 4 Johns., 390; Beekman v. Frost, 18 Id., 544, 560.)
    IX. An adverse possession commenced in 1815, (see Clapp v. Bromagham, 9 Cow., 530,) and ripened into a right of possession in twenty years; and ten years thereafter, (allowed for the disability of infancy,) tolled the right of entry' of the plaintiffs. (1 Rev. L. of 1813, 185, 186; 4 Johns., 390; 3 Cruise’s Dig., 368, tit. 29, ch. 1, § 3; Taylor v. Horde, 1 Burr., 60, 119; 2 Salk., 421; 1 Ld. Raym., 741; Smith v. Burtis, 9 Johns., 174; Smith v. Lorillard, 10 Id., 339, 356, per Kent, Ch. J.; Jackson v. Ellis, 13 Id., 118; Jackson v. Wheat, 18 Id., 40.) The statute bar applies as well to actions in equity as at law. (Humbert v. Trinity Church, 24 Wend., 587, 607.)
    X. The right to redeem is maintained upon the disability of marriage existing, not in 1815, but in 1841. This would be tacking a disability upon a disability, in violation of the statute. When the statute has commenced to run against the ancestor or other person, under whom the plaintiffs claim, it continues to run notwithstanding any disability that may accrue. (Demarest v. Wynkoop, 3 Johns. Ch., 129, 138; Fleming v. Griswold, 3 Hill, 85.) The statute begins to run when possession is taken from the mortgagor, which, in this case, was in 1815. (Jackson v. Wheat, 18 Johns., 40; Demarest v. Wynkoop, 3 Johns. Ch., 129, 138; Doe v. Jesson, 6 East, 80; Jackson v. Johnson, 5 Cow., 74; Cholmondeley v. Clinton, 4 Bligh, O. S., 1.) Tenancy of Provoost existed, at best, only as to the surplus which was paid into Court, which the heirs could not be delayed in securing, except the interest on such surplus for life. (Cunningham v. Knight, 1 Barb. S. C. R., 399; Jackson v. De Witt, 6 Cow., 316; 3 R. S., 5th ed., pp. 31 and 33, §§ 6 and 24; Id., p.43, § 20; Blydenburgh v. Northrop, 13 How. Pr. R., 292, 295, 296.)
    Provoost will be regarded in equity as guardian for plaintiffs, and liable to account as such for the surplus. (Van Epps v. Van Duzen, 4 Paige, 70.)
    XI. The assumption that $227 is due on the mortgage, is against the allegations in the complaint, as well as the evidence; makes the defendant a trustee of the legal estate for the benefit of the plaintiffs, which by our law in the case of a paid mortgage he cannot be deemed. (Jackson v. Crafts, 18 Johns., 110 and 114.)
    The parties seeking redemption must redeem both pieces' of land. (1 Story’s Eq. Jur., 365 ; 2 Ves., Jr., 376 ; 2 Fonb. Eq., B. 3, ch. 1 § 9, n.) If the plaintiffs are permitted to redeem, the sum of $750, with interest, must be paid. (2 Fonb. Eq., B., 3, ch. 1, § 13; Adams v. Brown, 7 Cush., 220; Adams’ Eq., 9th ed., 315; Balch v. Onion, 4 Cush., 559; Parkist v. Alexander, 1 Johns. Ch. R., 394; 1 Story’s Eq. Jur., 469, § 439.)
    XII. Ackley and the subsequent grantees, bona fide purchasers, cannot be defeated by. the unrecorded deed. (4 Kent’s Com., 93; Dickerson v. Tillinghast, 4 Paige, 215 ; Story’s Eq. Jur., 440, 699, §§ 411, 631.)
    XIII. The decree is founded upon proof of disabilities and other matters not charged in the complaint. (Kelsey v. Western, 2 N. Y., [2 Comst.] 500.)

      John Townshend, for plaintiffs, respondents.
    I. The decree below is too favorable to the appellant; it ought to. have declared the mortgage satisfied by the sale in 1815, and that all the plaintiffs were entitled to recover possession of the premises, as in ejectment, and without payment for improvements.
    II. The cause of action did not arise until the death of John D. Provoost, in 1841. The question is not whether a remainderman may redeem, but whether he must redeem, pending a life estate. Pending the life estate, there could be no adverse holding, as to those in remainder. There can be no cause for a redemption of action until the right is expressly or impliedly disavowed. A redemption by those in remainder would have inured entirely to the benefit of the tenant for life.
    III. The exceptions to the witnesses, Catharine Fogal and Colloon Randall, were too broad. (Brown v. Richardson, 20 N. Y. R., 472.) Besides, it seems as if the witnesses might have been examined generally. (Marsh v. Potter, 30 Barb., 506 ; Babbott v. Thomas, 31 Id., 277; Shoemaker v. McKee, 19 How. Pr., 86; Barton v. Gledhill, 12 Abbotts’ Pr., 246.) The case of Hasbrouck v. Vandervoort, (9 N. Y., [5 Seld.,] 153,) does not apply.
    IV. The unrecorded deed of 1805 was properly admitted, as an ancient deed. (Troup v. Hurlbut, 10 Barb., 354; Staring v. Bowen, 6 Id., 109; Clark v. Owens, 18 N. Y. R., 434.)
    V. Most of the exceptions arising on questions to the witnesses are rendered immaterial by the decree being adverse to the plaintiffs, Provoost, Tyte, and Day. (Walker v. Dunspaugh, 20 N. Y. R., 170.)
    VI. The facts found at Special Term will be received as the facts in the case, and are not the subject of exception and review thereupon.
   By the Court—Bosworth, Ch. J.

The deed of May 10th, 1807, was admitted in evidence, without any proof beyond the production of the paper. There was no other evidence of its prior existence; none as to its custody, or where it came from when produced at the trial, and of course, no evidence that the plaintiffs, or either of them, ever had possession of the premises in question, under it. This decision is, clearly, erroneous. (Wilson v. Betts, 4 Denio, 201; and Clark v. Owens, 18 N. Y. R., 434.)

The questions: when did the plaintiffs’ right of action accrue, and when did the statute of limitations begin to run ? are not free from difficulty.

When Catharine and John Eogal were married, is not stated in the findings of fact, nor is it stated in them when Sophia and Colloon Randall were married.

The findings of fact do not state that Ezekiel Bishop claimed to own in fee. Although they state that he conveyed iu fee to John Ackley, on the 25th of November, 1815, (having bought the premises on the 4th of September, 1815,) they do not state that Ackley was ever in the actual possession of the lot.

They state that Ackley and wife conveyed in fee, on the 8th of November, 1822, to William Nelson, “ who held the same during his life in fee, and after his death his heirs or devisees held said lot, claiming said lot in fee, until the 22d of January, 1850.”

Whether the plaintiffs Catharine and Sophia, were, or whether either of them was married prior to February 8, 1822, the date of the conveyance to Nelson, does not affirmatively appear; nor do I deem it important to ascertain.

The foreclosure and sale in Chancery did not affect their title as heirs of their mother. She had died before that suit was brought, and they were not parties to it.

If the mortgage was satisfied by the sale in Chancery, so that their estate ceased to be incumbered by the mortgage, the statute of limitations, as against an action of ejectment, would not begin to run, until the death of the tenant by the curtesy. If the mortgage is to be treated as satisfied, their legal title is clear, and the statute is no bar, they being at the time of the death of the tenant by the curtesy, under the disability of coverture, and that disability being still continuing. (Jackson v. Johnson, 5 Cow., 74, 94, 102, 103; Same v. Schoonmaker, 4 Id., 390; Casborne v. Scarfe, 1 Atk., 605.)

They had no right of entry, nor any right of possession during the existence of the estate by the curtesy. And during the continuance of that estate, their right as heirs of their mother could not be defeated by a claim of adverse possession commencing while that estate existed, and after the death of their mother, and not founded on title derived from her. Jackson v. Johnson (supra) is directly in point.

Whether an action to redeem is barred, though an action of ejectment may not be, I am not disposed to decide, at present.

If, as between the plaintiffs and the defendant now claiming to own the lot, the mortgage is to be deemed, in equity, a subsisting incumbrance, and he is to be deemed, in equity, an assignee of it, there are many reasons why the right to redeem should not be regarded as barred.

A doctrine or rule, which requires them to redeem, would impose on them the burden of paying off the mortgage, for the benefit of the tenant by the curtesy, while his estate as such tenant in connection with the other mortgaged property, might be worth more than the amount of the incumbrance. It would impose this burden, without conferring on them the right to the estate by the curtesy, or any interest in it. Though they should pay the mortgage debt, still they would have no right of entry or possession until that estate terminated.

And they would be compelled to do this, merely to preserve their legal right to bring ejectment, after the lite estate had ceased.

In 2 Atk., 333, (Anon.,) a redemption was allowed, and what was said, in regard to the excuse of there being a tenant by the curtesy, was not involved in the judgment, and is purely obiter.

Raffety v. King, (1 Keen, 602,) which reviews all the prior decisions, strongly supports the decision of the Judge at Special Term.

Instead of feeling at liberty to overrule his decision on this point, I prefer to not commit myself upon it, and not to pass upon the question, and to leave it open for further argument and consideration, upon a retrial of the action.

That the right to bring ejectment is not barred, if such an action will lie, all agree.

What interest either plaintiff has in the lot, upon the evidence before us, if it be not lost by lapse of time, it is useless to discuss. The case made on a new trial may be entirely different in this regard.

I concur in granting a new trial on the ground first stated, and place my concurrence on that sole ground.

Barbour J.

Hothing can be clearer, to my mind, than that this action cannot be sustained, as a suit in equity, to redeem the land in question from the operation of the mortgage executed by Provoost and wife, in 1809. The defendant is neither a mortgagee in possession, nor is that mortgage a lien upon the premises; nor has he ever stood in the place of the mortgagees, except in regard to the life estate of John D. Provoost, which has terminated. At the time of the institution of the foreclosure suit, in 1815, Bishop, the mortgagee, had an equitable lien upon the land, by his mortgage, to the extent of the life estate therein of John D. Provoost, as tenant by the curtesy, in possession, and, also, of the estate, in fee, belonging to Catharine Provoost, at the date of the execution of the mortgage, if she was then, in fact, vested with such fee; and might, by foreclosure and sale, have reached either or both of those estates. If he had brought his suit against the heirs-at-law of Catharine, his decree would have covered the fee, subject to the life estate; in case he proceeded against the husband alone, he was entitled to a decree for the sale of the life estate only. For some reason,—perhaps, because he was advised that Catharine’s interest in the premises was, merely, an estate for life, and had terminated at her decease, in 1810, or, possibly, under the belief that the sale of the estate of John D. Provoost would be sufficient, together with the other lot, to satisfy his lien,—the mortgagee saw fit to proceed against the latter alone, and to sell his interest as tenant by the curtesy. If he was governed by the last mentioned estimate, his opinion was justified by the result; for the proceeds of the life estate of Provoost iu this lot, and of his fee in the other, were not only sufficient to pay the claim of the mortgagee, but left a considerable balance to be returned to Provoost. By that foreclosure and sale of the life estate, and without selling the estate in fee, the mortgage was fully satisfied and discharged; and the purchaser entered into possession, and, up to the death of John D. Provoost, occupied, with his grantees, the premises, not as mortgagee, but as the absolute owner of the life estate purchased by him at the foreclosure sale, and nothing more; Catharine’s heirs, in the meantime, remaining the owners of the fee, burdened with the life estate, but discharged of the lien of the mortgage. The purchaser at the foreclosure sale, who, in this case, was the mortgagee himself, not only by his purchase, became seized of the life estate which he bought, but, with his grantee, the defendant, became subrogated to all the rights of the mortgagee in that life estate; but only in such life estate. Ho interest in the estate in fee passed to the purchaser at the foreclosure sale, by subrogation or otherwise; for he did not buy that estate, and took none of the rights of the mortgagee therein. In few words, the defendant stands exactly in the shoes of John D. Provoost, whose interest in the premises, and only that, passed to the purchaser by the foreclosure sale. The fact that the Sheriff executed to such purchaser a deed in fee, is, in this regard, wholly unimportant. To decide otherwise, and hold that the grantee in such deed holds adversely to the owner of the fee, would be to establish the principle that any tenant for a term extending beyond twenty years, may, by his own deed, purporting to grant in fee, cut off* the rights of the real owners of that title, which would be monstrous. It seems clear, therefore, that the plaintiff cannot sustain this action as a suit to redeem the fee of the premises from the operation of the mortgage; there being no mortgage lien upon such fee, nor any person, since the decease of the tenant for life, entitled, by subrogation or otherwise, to claim redemption-money, or to remain in possession during the non-payment of moneys secured by mortgage. The interest, by subrogation, of the purchaser and his grantees, as well as their rights as owners of the life estate, terminated upon the death of John D. Provoost; and they never had any interest in the fee.

But this is not, merely, an action in the nature of a suit in equity, to redeem the property from the lien of a mortgage ; it has a double aspect. If the facts warrant it, the plaintiffs may, under the pleadings, be entitled to a judgment, as in an action of ejectment, for the possession of the land itself, or of an undivided portion of it, without condition of payment on their part. Without pausing to consider, therefore, whether the defendant in this case may avail himself of an error in a judgment awarding to him several thousand dollars, as redemption-money, to which he is not entitled, or the question as to whether the Judge had jurisdiction, at Special Term, to render a judgment at all, after a trial, before him without a Jury, had shown, (as I think it did,) that the plaintiffs were not entitled to any relief in equity, I pass to the examination of the further questions involved in the suit, and presented upon this appeal.

Assuming that the plaintiffs are the owners in fee, as the heirs-at-law of their mother, there was no possession by Bishop or his grantees, prior to the death of John D. Provoost, adverse to the title of such owners ; the estate by the curtesy having been carved out of, and being held under and in subordination to the fee. They were, simply, tenants, though for Provoost’s life, and without payment of rent, of the owners in fee; and, as such, were liable to them for waste, &c. If, therefore, the plaintiffs are such owners in fee, they became entitled to the immediate possession of the premises, upon the death of Provoost ; and might then, or may at any timé within twenty years after, but not before that period, maintain their action, in the nature of an action in ejectment, for the recovery of such possession.

But, to enable the plaintiffs to succeed, it is absolutely necessary for them to show that Catharine Provoost died seized of the premises, or some portion of them, in fee. Her father’s will given in evidence, did not establish this; for the devise was in general terms, and contained no words of limitation or inheritance, and, therefore, passed only a life estate. (Harvey v. Olmsted, 1 Comst., 483.) Besides, even if the devise had carried a fee, the fee of this particular lot would not have vested in Catharine, to the exclusion of her sisters, by such devise alone, and without a severance by the three sisters of the property given to them, respectively, and the setting apart of this parcel to Catharine. It was, therefore, incumbent upon the plaintiffs, in order to entitle them to recover more than the share falling to Catharine as one of the seven heirs-at-law of her father, to show, that, by some act, subsequent to the death of her devisor, Catharine’s life estate became changed to an estate in fee in the lot in question ; and this they attempted to do by the production of the alleged deed of 1805.

This deed states, upon its face, that it is made by Margaret, the widow of Peter Colyer, and Charles Colyer, Jacobus Colyer, Peter Colyer, Jane Van Cott, Eve Provoost, Margaret Tiebout, and Catharine Provoost, (described in the deed to be the children, devisees, and heirs-at-law of Peter Colyer, deceased,) with their respective wives and husbands ; and, after setting forth the will of Peter Colyer, and reciting the fact that doubts have arisen whether the words contained in the will are sufficient to pass estates in fee to Jacobus, Eve, Margaret and Catharine, purports to grant and convey to each of the parties to such deed, from all the others, the lands devised to each of them by the will; one of the two lots in Essex street being designated and so conveyed to Margaret Tiebout, and the other, being the lot in controversy, to Catharine Provoost. But such deed is not signed either by Jane Van Cott or Margaret Tiebout, two of the alleged children of Peter Colyer, or their husbands; and purports to be signed only by Margaret Colyer, the widow, and Charles Colyer, Jacobus Colyer, Peter Colyer, Eve Provoost, and Catharine Provoost, five of the seven heirs-at-law, with their wives and husbands, although other seals are attached to the instrument, opposite blanks. The name of Jane Colyer, too, (stated in the body of the deed to be the wife of Jacobus,) appears twice among the signatures,.; one purporting to have been written by her, and the other attested by a mark or cross; and the three subscribing witnesses simply attest that it was “ sealed and delivered in presence of” themselves, without stating whether all the persons whose signatures are upon the paper, so sealed and delivered it, or only a part of them. Some of the persons, too, whose names appear among the signatures, signed in no other way than as marksmen ; and there is no evidence upon the face of the paper that such marks were made by those persons. Fo evidence, beyond what may be inferred from the production of the paper by the plaintiffs, themselves, was given touching its custody, at any time between the date of its alleged execution and the trial of the action; and it does not appear to have been either acknowledged or recorded.

It is fully* settled, with us, that an instrument purporting to have been executed more than thirty years before it is offered in evidence, is not entitled to be read as an ancient deed, upon presentation, merely, and without further proof of its authenticity. The bare efflux of time is not sufficient. Proof that the paner offered has for that period, ‘ been in the custody of the party who, if genuine, would be the proper person to hold it, is essential. ETor is that enough. Evidence of possession under the deed, during the thirty years, or some other corroborative evidence of its authenticity, is also necessary. (Jackson v. Luquere, 5 Cow., 221; Jackson v. Lamb, 7 Id., 431; Hewlet v. Cock, 7 Wend., 371; Wilson v. Betts, 4 Denio, 201.) In the case last cited, proof that the paper offered had been in the possession of the proper custodian for sixty years was held insufficient, in the absence of further corroborative evidence. And, beyond all this, it is essential to the admission of the instrument as evidence, that it be wholly free from any just grounds of suspicion. (1 Greenl. Ev., § 21 and note 4.)

At the time this deed was read in evidence, none of these prerequisite facts had been proven. The production of the paper by the plaintiffs does not establish a presumption that it had been in their custody or that of their ancestor, from the day of its date; for each of the parties to it, all being grantees, was as well entitled to its possession as was Catharine Provoost, and, for aught that appeared, some one of them had held it until the day of the trial, notwithstanding they were her grantors. It is true that, after the deed was read in evidence, an attempt was made to prove that Catharine Provoost was in possession of the lot in controversy at some time previous to her death in 1810; and the Judge has found, as a fact, that John D. Provoost, and Catharine, his wife, were in the actual possession of the premises before and at the time of the execution by them of their mortgage to Bishop, in 1809.

Upon a careful consideration of the evidence embodied in the printed case, I find myself unable to concur with the learned and able Judge who tried the cause, in regard to this question of fact. There is no evidence whatever in the case tending to prove possession, to any extent, in Provoost or his wife, aside from what is contained in the testimony of Catharine Fogal; and that, it seems to me, is insufficient to establish such possession. She testifies, after the mists of more than half a century have gathered around her memory, that she played, when a child less than ten years old, not upon the one lot in question, but upon two lots in Essex street; being, probably, the two lots devised by Peter Colyer with another lot in Eagle street, to his three daughters, Eve, Margaret, and Catharine. If it may be inferred that the witness so played there by permission or the direction of her mother, therefore, it is quite as reasonable to suppose that the mother exercised this right by virtue of her claim to all three of the lots, and her ownership in freehold of one of them, not, as yet, then set apart to her or severed, as it would be to assume that she had or claimed sole possession of the one in question; for,' until partitioned, each of the sisters was equitably entitled to the possession, jointly with the other two, of either or all of the three parcels. The theory suggested will also apply to the alleged use of the lot stated by the witness to have been granted by her mother (who was incapable of making a grant without joining her husband) to Mrs. Tiebout, and the alleged possession of the latter; a possession, by the way, thus attempted to be proved, simply by the use of the legal term itself, without showing in what manner or to what extent it was had; possession, too, of a vacant lot, upon which there was no house, and where, notwithstanding such possession, the children of Mrs. Provoost were sent to play. But, be that as it may, I think the testimony of Mrs. Eogal, (as well as that of Colloon-Randall,) was inadmissible under the rule as it stood when such evidence was given. The case of Hasbrouck v. Vandervoort, (5 Seld., 153,) seems to me to be conclusive upon that point.

Besides this, it is quite apparent that the instrument is incomplete as a deed, and could never have been delivered to any of the parties, except for* the purpose of being executed by them. The object and design of all the parties appears, clearly, to have been, not merely to carry into effect the intention of Peter Colyer, as expressed in his will, but to go beyond that, and grant by and on the part of all the heirs-at-law, a particular lot, in severalty, to each of the three daughter's, in fee, in lieu of the life estate which she had, by the will, in an uncertain one of three lots, and, also, to grant and release to each of the other devisees the lands devised to them, respectively, as well as to covenant, as they did, with each other, that they would, severally, abide by the will, according to the construction thus given to it, and carry it into effect. The great object of each of the parties to the proposed deed, therefore, was to perfect and quiet the title to the lands devised to him; and such grant and release to himself constituted the consideration for his execution of the deed. This, then, being the motive of the parties, it is more reasonable to suppose that the deed was stopped in transitu by some of them, in its passage for execution, than to believe it was finally delivered to any of the parties, as a complete deed, before it was executed by all the grantees.

There is still another reason which ought, of itself, to have precluded the admission of the instrument, even if its execution by all the parties whose signatures appear upon it, had been fully proved;—that is, it did not prove, nor tend to prove, any fact stated in the complaint. Certainly, the title claimed by the plaintiffs to have been vested in their ancestor by a deed of a certain description, executed by fifteen persons named in the complaint, and in no other manner, cannot legally be proven by the pro-1 duction of a deed signed by eleven only of those persons. I am of opinion, therefore, that the deed was improperly permitted to be read, and that there is no evidence in the case tending to establish the fact that Catharine Provoost was ever seized or possessed of a fee in the premises, except as one of the seven heirs-at-law of her father.

Conceding, however, for a moment, that all of the persons named in the deed of 1805, as parties to it, were heirs of Peter Colyer, and his only heirs-at-law,—that the deed was duly delivered to Catharine Provoost by those persons whose signatures appear upon it,— and that it was properly received in evidence;—still, the judgment cannot be sustained, even upon the theory of the Judge himself. For, in that case, the two heirs-at-law who failed to sign the deed are the owners of two-sevenths of the premises. So, too, as to Eve Colyer, a married woman, who signed the deed, but failed to acknowledge it in the manner required by the statute then in force, so as to render it effective. (1 Webster’s L. N. Y., 478.) Nothing passed by her deed, and she remains the owner of another seventh. Surely, then, the plaintiffs who have obtained the judgment are not entitled to the possession of that portion of the premises which is represented by those three-sevenths, even though it may clearly appear that the defendant has no right whatever to such possession. They must rest upon the strength of their own title, and cannot avail themselves of the weakness of that of their adversary. I think, too, that the learned Judge erred in dismissing the complaint, as to a part of the plaintiffs, upon the ground that they were barred by the statute of limitations. The action was brought within twenty years after the death of the tenant for life; when the right of the plaintiffs to the possession accrued. For these reasons, I am of opinion that the judgment cannot be sustained upon any supposable theory, and that it should, therefore, be reversed, with costs, and a new trial granted.


author: By the Court — Monell, J.

text:
    Joseph Creuse, Plaintiff and Appellant, v. Louis Defiganiere, (Executor &c., of the will of Felix Henry Martin,) Defendant and Respondent.
    ]. A letter written by a debtor, in effect acknowledging the existence of an indebtedness, and proposing a compromise, but distinctly indicating an unwillingness to pay, and a determination to pay nothing if the offered compromise be rejected, is not such a recognition of the debt as will take it out of the statute of limitations.
    2. A. new promise cannot be raised by implication from any act of an agent of the debtor, whose only authority is to effect a compromise upon specified terms.
    3. It seems, that an agent cannot bind his principal by an implied new promise made within six years before action, where the authority of the agent was given more than six years before the action.
    (Before ¡Robertsoñ, White and Monell, J. J.)
    Heard, November 11, 1862;
    decided, January 5, 1863.
    This action was upon a judgment recovered by the plaintiff against one Martin, the defendant’s testator, on the 26th of ¡November, 1840, in the Tribunal of Commerce, of the city of Paris, France.
    The answer denied all the allegations in the complaint, except the death of the testator, and the defendant’s appointment as his executor. The answer further set up, as a separate and distinct defense, that the supposed cause of action did not accrue to the plaintiff at any time within six years next before the commencement of the suit.
    The action was commenced on the 10th of May, 1859, and was referred to Benjamin D; Silliman, Esq., as Referee to hear and determine all the issues.
    Martin, the defendant in the judgment and the defendant’s testator, died January 16, 1857, and letters testamentary were issued to the defendant March 26, 1857.
    The Referee found as a fact that no acknowledgment or promise had been made by Martin, the decedent,, or by the defendant, to pay the claim within six years next preceding the death of Martin, and decided that the defendant was entitled to judgment.

      O. A. House, for plaintiff, appellant.
    Cited, Van Rensselaer v. Livingston, (12 Wend., 490,) M'Crea v. Purmort, (16 Id., 460, 476,) Winchell v. Hicks, (18 N. Y. R., [4 Smith,] 558,) Shoemaker v. Benedict, (11 N. Y. R., [1 Kern.,] 183,) Story on Cont., § 135, and cases cited.

      Charles N. Black, for defendant, respondent.
    Cited, Bloodgood v. Bruen, (8 N. Y. R., [4 Seld.,] 368,) Wakeman v. Sherman, (9 N. Y. R., [5 Seld.,] 91,) Bell v. Morrison, (1 Peters, 362,) Hubbell v. Coudrey, (5 Johns., 132.)
   By the Court — Monell, J.

The plaintiff relied upon a new promise to remove the bar of the statute of limitations.

The Beferee having found against the plaintiff on that fact, we are called upon to review his finding upon the evidence.

The evidence relied on by the plaintiff, as establishing a new promise, is to be found in some letters of the defendant’s testator, annexed to a commission executed in France.

The first of these letters is addressed to Mr. Louis Detun cq, at Paris, and is dated Hew York, May 14, 1851. After speaking of the bad faith of certain persons who had caused his ruin he says : “I say those persons because “ there is more than one. 1st, That one who has manufac- “ tured the hair works which were sent to me, is a certain “ Guyaz, a man without honesty, who was superintendent “ of the factory, and who manufactured with so much “ fraud that I was obliged, at last, to sell the same at a “ price not sufficient to cover my expenses for freight and “ custom house duties. When last in Paris their claim “ was of nearly eleven thousand francs. To get myself “ out of any trouble, I offered them three thousand francs, “ which offer they declined to accept—their object being, “ knowing that I was obliged to return to the United “ States, and aware that I was possessed of a property—to prosecute me when absent, and to expropriate me. They have succeeded. I have been prosecuted before the Tri- “ bunal of Commerce by a person of the name of J. “ Creuse, who solely lent his name to a Mr. Gibaud, who “ became the purchaser of the property owned by me in “ the Pigal street, and at the' passage des beaux arts, at “ Monmartre.

“ Therefore, it is not upon this Orense, who has reeo- “ vered judgment against mein the Tribunal of Commerce, “ that you have to call, but upon Mr. Gibaud, who lives in “ St. Dennis street. Consequently, I pray you, my dear “ sir, to be so kind as to see that Mr. Gibaud, and to make “ him an offer of twenty per cent on the debt. It will be “ necessary for you to consult a lawyer, to whom you may “ show the papers intrusted to the kind care of your “ daughter. She will, also, deliver to you the sum of “ money destined to the settlement of that unhappy affair. “ If Mr. Gibaud persists to refuse this last offer, you may “ tell him that it is the last he will hear of me.”

The next letter is of the same date and is addressed to Josephine Detuneq, at Paris. In it, he says, “ Please “ explain to your father the reason why I wrote that letter “ to him. By a thorough understanding between you and “ him, I hope that you will easily succeed in settling that “ cursed affair.”

On the 30th May, 1851, in another letter addressed to Josephine Detuneq, he says, “I suppose that Mr. Gibaud “ has easily accepted my offers.”

On the 14th of July, 1851, Louis Detuneq, addressed a letter to the plaintiff, in which he says, “lam bearer of a “ power from Mr. Martin of Hew York, authorizing me to “ propose to you a convenient settlement in relation to the “judgments rendered by the Tribunal of Commerce of “Paris, in your favor .against him, and giving me all “ powers and authority to negotiate and compromise with “ you; and further placing at my disposal the necessary “ money to pay you, if such proposition is accepted.” Under date of Hovember 28, 1851, Josephine Detuneq wrote the plaintiff, renewing the offer of compromise.

On the 24th January, 1852, Louis Detuneq again addressed a letter to the plaintiff, in which he says: “ My “ daughter, when back to Hew York, has communicated “ your proposition to Mr. Martin; but he refuses peremp- “ torily to pay more than three thousand francs. * * # * “ He says that * * * your best policy is to" accept his “ offer; because, otherwise, you will never get a cent from “him.* * * * Mr. Martin’s intention is, that upon receiving “ three thousand francs, you will give him a receipt in full.”

Josephine Detuncq, who was examined as a witness on the part of the plaintiff, testified that the affair to which Martin alluded in his letter to Louis Detuncq, was the indebtedness from Martin to Orense, the plaintiff.

The letters relied on as containing such a recognition of the debt as is claimed amounts to a promise to pay, are those of November 28, 1851, and January 24, 1852, from Josephine and Louis Detuncq. All the previous letters, of which I have given extracts, having been written more than seven years and six months before the commencement of the action, are important only as containing the authority to Detuncq to make the offer of compromise.

If the contents of the letters of Martin can be construed into a new promise to pay, and they contained sufficient authority to Detuncq to make the promise, then a promise made by an agent would be binding upon the principal. (Winchell v. Hicks, 18 N. Y. R., 558.)

But the greatest force and effect I am able to give to the letters, is, that they contain a quasi recognition of an indebtedness, coupled with a desire that it might be compromised.

It is necessary to refer to a few only of the cases where this subject is considered, to see how the law stands.

In Allen v. Webster, 15 Wend., at p. 289, the rule is stated to be “ that to revive a debt barred by the statute of limitations, whether the statute theoretically operates upon the debt itself or upon the remedy only, there must be an express promise, or an acknowledgment of a present indebtedness; a subsisting liability and a willingness to pay it.”

In Deyo v. Jones, 19 Wend., at p. 493, it is said that, “ to avoid the statute, the admission must amount to an unqualified acknowledgment of the debt, disconnected with any circumstances indicating an intention not to become liable upon it.”

In Bell v. Morrison, 1 Peters, 351, the rule is thus stated: “ If there be no express promise, but a promise is to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission, of a present subsisting debt, which the party is liable' and willing to pay. If there be accompanying circumstances, which repel the presumption of a promise or intention to pay,” &c., “they ought not to go to a Jury as evidence of a new promise.”

KTo more clear and distinct enunciation of the rule can be found in the" books, and the language of Mr. Justice Story, which I have quoted, is adopted and approved by our Court of Appeals, in Bloodgood v. Bruen, (8 N. Y. R., [4 Seld.,] 369.)

In a later case, (Pickett v. King, 34 Barb., 195,) the same general rule is recognized, where the Court say it is upon the principle of an implied promise, that partial payments have been held to revive the debt, as being both an admission of the debt, and as implying a willingness to pay the same.

In Bowker v. Harris, (30 Vt. R., [1 Shaw,] 424,) the action was to recover the balance of a debt, part having been previously paid upon a compromise. The defense was the statute of limitations, and the plaintiff relied upon the payment as evidence of a new promise. Barrett, J., says: “ It is claimed by the plaintiff that this constituted such an acknowledgment of the existing indebtedness, as, within the principle of the decided cases in this State, will take the case out of the operation of the statute. We regard the rule of law on this subject to be comprehensively, and with just discrimination, laid down in the case of Phelps v. Stewart, (12 Vt. R., 256.) Under that rule, in its legitimate application, we are fully of the opinion that the payment made by the defendant in this case did not operate as an acknowledgment of an existing indebtedness. The payment was made to end the indebteduess, not as recognizing a still subsisting balance. Both parties so .understood and designed it at the time it was made. Instead, therefore, of indicating a willingness on the part of the defendant to stand liable for the balance claimed, the whole purpose was to end such liability. It would be doing violence to the obvious reason and sense of the transaction, to imply from it a promise to pay. The implication is directly the other way.”

Giving the plaintiff the benefit of the letter to Louis Detuncq of the 14th of May, 1851, and assuming a continuing authority in Detuncq to bind his principal by a promise on the 24th January, 1852, what is the proof of a new promise? Martin alludes to the judgment in favor of Orense, the plaintiff, recovered in the Tribunal of Commerce, but directs Detuncq not to call upon him, but upon a Mr. Gibaud, and to make him an offer of twenty per cent of the debt. And he adds “If Mr. Gibaud persists to refuse this last offer, you may tell him that it is the last he will hear of me.” Detuncq urged an acceptance of the offer of compromise, “because when once gone away, it will be finished and you will never hear of Mr. Martin.” Again, (letter of January 24, 1852,) “your best policy is to accept the offer, because otherwise you will never get a cent from him.” Although there is in these letters an acknowledgment of an existing indebtedness, there cannot be implied from them a promise to pay. The acknowledgment was made upon an offer of compromise, which seems to have been rejected and cannot, therefore, be proven against the party making it. (Marvin v. Richmond, 3 Denio, 58.) There is also, if not in express language, yet to be distinctly inferred, an unwillingness to pay. The offer of twenty per cent of the debt, was for the purpose of buying peace. If, as is said in Buller’s ET. P., 236, A. sues B. for £100, and B. offers to pay him £20, it shall not be received in evidence, for this neither admits or ascertains any, debt, and is no more than saying he would give £20 to get rid of the action. The offer having been rejected it cannot be used afterward for any purpose. So far as it may be regarded as the admission of a fact, as of the existence of the debt, it may be competent evidence. The distinction in the elementary books, is between the admission of a fact, and a mere proposition not accepted, to do an act by way of settlement. The former is admitted, the latter excluded. (1 Phil. Ev., 108.) The use sought to be made of this offer of compromise, is not as admitting the debt only, but as containing an implied promise to pay. For such a purpose it does not seem to me it can be used. It was an offer to do an act by way of settlement, which within Mead v. Degolyer, (16 Wend., 644,) should have been excluded.

But if it could be admitted, it fails to raise, by implication or otherwise, a promise to pay the debt. There is not such a recognition of the debt, coupled with an expressed willingness to pay, as takes the case out of the operation of the statute. On the contrary, there was an unmistakable determination, if the compromise was rejected, to pay nothing. (Rockham v. Marriott, 37 Eng. L. & Eq., 460.)

The authority to Detun cq was to effect, if possible, a settlement of the debt. It did not extend beyond that. He had no power to bind his principal by an express promise, and he could not, by any act, declaration or admission, raise one by implication. He was not made an agent for any such purpose, and, therefore, it is, that no efficacy can be given to the agent’s letter of the 24th January, 1852, which it is claimed contains the evidence of the new promise. It cannot be that an agent can bind his principal by an implied new promise made within six years, where the authority to make it was more than six years before. The statute would commence running from the time the authority was given,' not from the time the agent made the new promise.

Upon the whole, we are of opinion, first, that the letters of the defendant’s testator, do not contain such a recognition or admission of the debt, as was to justify the inference or implication of a promise and willingness to pay; and second, that if they did contain one, the promise was not in time to remove the statute bar. Of course we reject the contents of the agent’s letter of the 24th January, 1852, as being without authority.

The view which we have taken, renders it unnecessary to determine whether the limitation of the Revised Statutes (2R. S.,448,^8,) of suits against executors to eighteen months, is repeated by the provision of the Code, (Code, § 102,) which limits them to one year.

The judgment should be affirmed.