author:
Wright, J.
      Bronson, J.

text:
    Jencks vs. Smith.
    Where A occupied land under H, and by the terms of their agreement the grass belonged to A; held, that A might transfer such grass, while yet growing, by a personal mortgage.
    Where upon a trial there is opportunity for‘objection, and the party whose duty it is to object, remains silent, all reasonable Intendments will be made, in a Court of Review, to uphold the judgment.
    The defendant, in a Justices’ Court, claimed the property by virtue of a personal mortgage, which was read in evidence without objection. It also appeared * that the mortgage had been filed; but the return of the Justice did not shew that there was any evidence that such filing was in the town where the mortgagor resided, or where the property was situated, as required by the statute, {Laws of 1S33, chap. 279;) nor did it appear, from the return, that the plaintiff, who claimed the property as purchaser under an execution against • the mortgagor, mude any objection on the ground of such defect in the evidence ; held, that such an objection could not be taken in the Court of Common Pleas on certiorari.
    On error from the Supreme Court. Smith sued Jencks before a Justice of the Peace.of the County of Madison, and declared in trespass for taking a quantity of hay. The defendant pleaded the general issue, and gave notice that he would prove the. hay belonged to him by virtue of a chattel mortgage, executed upon the same by one Philip Arnold. On the trial the plaintiff claimed the hay by virtue of a sale to him under an execution, issued from a Justices’ Court, against the said Philip Arnold. Arnold cut the hay upon land which he'Occupied under one Hunt. The hay was cut and stacked on Saturday, and on the Monday following the above execution was levied upon it, and the plaintiff bought it at the constable’s sale.
    Shortly before the hay was cut, Arnold had executed to the defendant a personal mortgage upon it, which, as Arnold testified, was given for a book account which he owed the defendant. He also testified that it was a bona fide transaction. The mortgage was read in evidence, and the return of the Justice does not shew that any objection was made to this evidence. A witness also testified that he saw the mortgage filed, but the return does not shew that the mortgagor resided, nor that the property was situated in the town where the mortgage was filed, nor does it shew that any objection was made on that ground. It appeared that when .the hay was levied upon, it had not been actually delivered to the defendant. After the levy, and before the sale, Arnold stated, in presence of the agent by whom the plaintiff bid off the hay, that he had given a mortgage upon it to the defendant. The defendant removed the hay by virtue of his mortgage, and for that the suit was brought. The return, after setting out the' above and some other facts, states, “ The testimony was here closed.” The'jm’y gave a verdict for the defendant, on which the Justice entered judgment in his favor. This judgment was affirmed by the Court of Common Pleas upon certiorari, but was reversed in the Supreme Court, on writ of error. x (see 1 Denio 580.)

      H. Cr. Wheaton, for plaintiff in error.

      Wm. J. Hough, for defendant in error.
   Wright, J.

Two points were made on the argument of this cause: 1. That the mortgage gave the defendant (in the Justices’ Court) no subsisting lien upon the grass, as it is not the subject of conveyance or pledge, as security, by chattel mortgage. 2d. That there was no proof on the trial before the Justice of the residence of the mortgagor, at the time of the execution of the mortgage; or that, when executed, the property was in the town in which the mortgage was filed.

With regard to the first point, I concur with the reasoning of the Supreme Court. (1 Denio 580.) It was assumed by both parties, on the trial, that by an agreement between Hunt the owner of the land, and Arnold the mortgagor, the grass, at the time the mortgage was given, was the property of Arnold. Both claimed through him. Hunt made no claim, nor was he a party to the controversy. The undisputed ownership of the grass .being in Arnold, I see no objection to liis passing Ms title by a sale, or mortgaging Ms interest in it. At all events, the transfer to the mortgagee became perfect on its severance from the freehold.

The act of 1833, chap. 279, provides that every mortgage, or conveyance intended to operate as a mortgage of goods and chattels, thereafter made, which shall not be accompanied by an immediate delivery, and be followed by- an actual and continued change of possession of the things mortgaged, shall be absolutely void, as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the town or city where the mortgagor, if- a resident of this State, shall reside at the time of the execution thereof: and if not a resident, then in the city or town where the property so mortgaged shall be at the time of the execution of such instrument. It is now insisted, that there was no proof on the trial of the residence of the mortgagor, nor did it appear that the mortgage was filed in the town where the property was at the time of its execution. If the return of the Justice showed affirmatively that this proof was wanting, and that objection was raised, before the Justice, on account of the absence of it, the defect would be fatal. But the return is merely silent on the point, and no objection appears to have been taken before the Justice. Where opportunity is given for objections, and none are made, but the party, whose duty it is to object, remains silent, all reasonable intendments will be made by a Court of Error to uphold the judgment. TMs doctrine, founded in good sense, has been promulgated, in a series of decisions, by the Courts of this State. In the case of Baldwin vs. Calkins, (10 Wend. R. 167) on certiorari, the Supreme Court held that an omission to object will even authorize the inference of a fact necessary to confer jurisdiction. In Menderback vs. Hopkins, (8 John. R. 436) a constable, having an execution, paid the amount to the plaintiff, without any demand of, or request by the defendant, and afterwards.sued the defendant for the money so paid. There was no evidence on the trial that- the constable had made a demand on the defendant, or-that he had been requested by him to make the payment. The Court said, “ a demand and request may have been presumed. It was to be inferred as admitted, when nothing was said to the contrary. Indeed, as no objection was made to any of the testimony, but it was submitted to the jury, every inference that could be drawn from the evidence, is to be presumed to have been drawn, and the verdict, by reasonable intendment, is good.” In Fort vs. Monroe, (20 Wend. R. 210) case was brought for negligence of a servant of the defendant in driving a gig, by which a son of the plaintiff was run over and killed. There was no evidence to shew that the servant was acting in the business of the master,- or within the scope of his authority, nor was that point made upon the trial, either on a motion for a non-suit, or after the testimony had closed. On a motion for a new trial, the Supreme Court remarked: The case seems to have been tried and defended upon the assumption of the existence of the relation of master and servant between the defendant and the person driving the carriage. It would, therefore, be unreasonable to disturb the verdict upon the ground now urged, as the counsel did not choose to avail himself of it when it could have been removed, by his adversary, by the production of proof.” In Oakley vs. Van Horn, (21 Wend. R. 305) the collector of a school district was sued, in a Justices’ Court, in trespass, for levying upon and selling a saddle for a school tax. In the return of the Justice it did not appear that any evidence was given to shew that before the levy the collector demanded the payment of the tax, nor on the other hand did it appear that the absence of such proof was objected to or in any way noticed on the trial. The collector had judgment, and the Supreme Court, in affirming it, say: “If we are authorized to hold, from the return, that no demand was made of the tax in question, previous to the levy, and that the point was duly raised in the Justices’ Court, there was error. But in the case at bar, the return is merely silent as to the proof of demand. No objection appears to have been made on that account, nor does it appear, affirmatively, that the proof was wanting. We must intend, therefore, that it was given. Had the, objection now raised come before us on a bill of exceptions, it must have been shewn affirmatively, that the collector failed to justify by proving- a demand before he levied; and beside, that the defect was mentioned as an objection, for it is one that may be supplied, and we would intend that had the objection been raised it would have been obviated by proof of the fact. Here the parties were present with every opportunity to raise the point.” In Holbrook et. al. vs. Wight, (24 Wend. R. 169) it was necessary for the plaintiffs to sustain their action, to prove that they had accepted or paid certain drafts. , There was no direct evidence in the Case as to the acceptance or payment, nor was there any objection on that ground raised on the trial. On a motion for a new trialj Cowen, Justice, who delivered the opinion of the Court, held the following language: “It is said there is no evidence in the case, that the plaintiffs had either accepted or paid the drafts. There is not, indeed, any direct evidence, but the fact of acceptance was assumed throughout the trial. The Judge referred to it in his charge to the jury. It is strange, if such .a material fact were out of .the case, that it was not mentioned as an objection and made a point.”

In the present case the fact seems to have been assumed throughout the trial that Arnold was a resident of the town of De Ruyter at the execution of the mortgage; and no objections appearing upon the return, I think we should intend that it was proved or admitted. Clearly upon principle, aside from direct authority, it ought not to be tolerated, that parties should go to trial in a Justices’ Court, raising no objections in its progress, or- at its close, when any defect in the proof, if pointed out, might be obviated, and afterwards, being dissatisfied with the verdict, an Appellate Court should be urged to reverse the judgment of the Justice on an allegation of such defect.

The judgment of the Supreme Court should be reversed, and that of the Common Pleas and Justice affirmed

Bronson, J.

Gardiner, Buggies, and. Jones, Js., concurred.

Jewett, Ch. J. and Gray, J. delivered opinions for affirmance, with whom Johnson, J. concurred.

Judgment of the Supreme Court reversed, and that of the Justice and Common Pleas affirmed.


source: Caselaw Access Project

author: Jewett, Ch. J. Gardiner, J. Johnson, J.

license: Public Domain

text:
    Abel French, Jr., vs. Robert D. Carhart.
    Where a deed given in 1829 contained a clause by which it was made subject to n reservation contained in a conveyance of the same premises given in 1793, between other parties, and the question was upon the construction oí the deed of 1829; held, that it was to be construed in the same manner, as though the language of the reservation as contained in the original deed were incorpora, ted into and formed a part of- the one in question.
    In the construction of deeds and other 'instruments the intention of the parties is to govern, and where the language used is susceptible of more than one interpretation, courts will look at the surrounding circumstances existing when the contract is entered into, such as the situation of the parties, and of the subj'ect matter of the contract.
    A conveyance of real estate contained a clause referring to and adopting the reservations and conditions in a former conveyance of the same premises, and the reservation in such former conveyance was in these words: “ Saving and always excepting to the said parties of the first part, their heirs and assigns, out of this present grant and release, all mines and minerals, that are now, or may be found within the premises hereby granted and released, and att the ree£s. Mils, runs and streams of water, and so much ground within the same premises, as they, the said parties of the first part, their heirs and assigns may-think requisite and appropriate at any time hereafter, for the erection of the-works and buildings whatsoever, for the convenient working of the said mines and also all such wood, fire wood and timber as they may think proper to use in building, repairing, accommodating, and working the said mines, with liberty to them, their heirs and assigns, and their and each of their servants to dig through and use the ground, for either of the said purposes, and to pass and repass through the premises, with their and each of their horses and cattle, carriages and servants, and to lay out roads therefor,’—and the habendum clause, contained a condition that the grantee, his heirs, &c., should not erect, or permit to be erected, any mill or mill dam upon the stream of water on the premises granted ; held, that the reservation of the stream was for all purposes and not for mining purposes merely.
    And in aid of this contructioh; held also, that it was proper to consider the evidence, which shewed that when the deed in question was given, the grantor owned the premises immediately below, on which were situated and used a a mill and dam, which set the water back on to the land conveyed, and that the grantee knew oí the existence of such mill and dam, and of the manner in which the stream was affected by their use.
    ' Held also, that the reservation was not merely of the natural bed of the stream, but of a right to use the stream in the same manner, and to set back the water to the same extent, as when the grant was made.
    Whatever is necessary to the fair and reasonable use of the thing excepted, is is also reserved as incident to the exception.
    A reservation in a deed of a right or privilege should be construed in the same way as a grant by tile owner of the soil, of a similar right or privilege. Per Jewett, Ch. J.
    7f the language of a deed is ambiguous, the Court, in order to arrive at the intention of the parties, may look at their subsequent acts, and the manner in which tile thing granted has been used, and enjoyed under the grant. Per Jewett,Ch. J,
    Error from the Supreme Court. Carhart sued French for overflowing his land, situated upon a creek, called the Eormanskill in Guilderland, Albany County, by means of a dam erected upon the stream below the premises overflowed.
    On the trial at the Albany Circuit before Cushman, Circuit Judge, in October, 1843, the. evidence tended to shew that in 1793, Abraham Ten Broeck and Wife gave a perpetual lease of the premises claimed by the plaintiff below, to John Bullock, which contained a reservation in these words: “ Saving and always excepting to the said, parties of the first part, their heirs, and assigns, out of this present grant and release, all mines and minerals, that are now or may be found within the premises hereby granted and released, and all the creeks, kills, runs, and streams of water, and so much ground within the same premises, as they the said parties of the first part, their heirs and assigns may think requisite and appropriate at any time hereafter, for the erection of the works and buildings whatsoever, for the convenient working of the said mines, and also all such wood, fire-wood and timber, as they may think proper to use in building, repairing, accommodating, and working the said mines, with liberty to them, their heirs and assigns, and their and each of their servants to dig through and use the ground, for either of the said purposes, and to pass and re-pass through the premises, with their and each of their horses .and cattle, carriages and servants, and to lay out roads therefor.” In the habendum clause of the same lease, was a condition in these words : “ And upon this condition, that néither the said John Bullock, nor his heirs, nor assigns do at any time hereafter erect or permit, or causé to be erected, any mill or milldam upon any creek, kill, river, or stream of water, within the premises hereby granted, nor give, nor 'cause to be given, any manner of let or obstruction whatsoever to the said parties of the first part, their heirs or assigns, to their and each of their prejudice in the full enjoyment of the rights, titles, and privileges saved to him or them by the saving and exception, before in these presents above mentioned.” Then followed a clause giving a right to re-enter on failure in performance of the conditions.
    In 1805, Ten Broeck and Wife conveyed to James McKoun and Abel French, Sen., the premises claimed by the defendant, and on which the dam in question is erected. This conveyance contained in the granting part the following clause: “ Together with the privilege of erecting a dam at the fall above mentioned,” (referring to the location where the dam in . question is erected) not “ exceeding five- feet in height.” As early as 1817, Abel French, Sen. erected a dam at the place indicated by this deed, and this, dam (having been one or more times washed away and re-built) was continued down to the time of the trial, and during that period the water raised by such dam was used to supply a flouring mill upon the same premises. The defendant below rebuilt the dato in question in 1839.
    On the 17th of February, 1829, Abel French, Sen. had become owner, under the titles from Ten Broeck, of the premises claimed by the plaintiff and defendant respectively, and on that day he conveyed the plaintiff-s premises, (the same described in the- declaration) to Jeremiah Van Auken, “subject, among other things, to such covenants, reservations, and conditions, as are mentioned in the original deed or lease formerly given by Abraham Ten Broeele, deceased, to John Bulloclc.” Van Auken went into possession and occupied until April, 1837, when he'conveyed the same premises to the • plaintiff, with the same reservations, and the like reference to the lease from Ten Broeck. The premises are bounded in these deeds, “ on the South by the Normanskill.” The defendant also derived his title from Abel French, Sen., to the premises on which the dam complained of was built. The evidence also tended to shew, that Van Auken during the time that he owned and occupied the plaintiff’s premises, made no objection to the continuance of the dam, and that the plaintiff at the time he purchased, was acquainted with the premises, and knew of the existence of the dam, and the manner in which it affected the stream. The weight of testimony also went to shew, that the dam as rebuilt by the defendant raised the water no higher than the dam which proceeded it had done, and no higher than it was raised when Van Auken and the plaintiff purchased respectively. The water was set back over a mile, and covered some three or four acres of the' land claimed by the plaintiff. It did not appear that any mines or minerals had ever been found on the premises.
    The Circuit Judge charged the jury that the only question for them to pass upon was as to the amount of the plaintiff’s damages, that the plaintiff had shewn a perfect title to all the land covered by his deed to the middle of the Normanskill, subject only to the reservation of the stream for mining purposes. The defendant’s counsel insisted and requested the Circuit Judge to charge,- l.That the conveyance of French to Van Auken, bounded Van Auken on the edge of the stream as it then was, and gave him no title to the land then under water. 2. That the reservation of all creeks, kills, streams and runs of water, was absolute for any and every purpose. 3. That the location of French’s deed was a question of fact for the jury. 4. That the reservation in question was ambiguous, ' and its construction should be left to the jury upon the instruments themselves, and the surrounding circumstances which had been given in evidence. The Circuit Judge refused so to charge, and the defendant excepted to his charge and refusal to charge as requested. The jury found for the plaintiff. The Supreme Court on bill of exceptions refused to grant a new trial and gave judgment for the plaintiff.

      J. Van Burén, (Atty. Gen’l.) for plaintiff in error.
    I. The Judge erred in charging the jury that the reservation of “ all creeks, kills, streams and runs of water” in French’s deed was a reservation only for mining purposes.

      1. The “ covenants, reservations and conditions” in the lease from Ten Broeck, are a part of the deed from Abel French, Sen., to Jeremiah Van Auken, under which plaintiff'claimed title.
    2. The reservation of “ all creeks, kills, streams and runs of water” is absolute. (Oakley vs. Stanley, 5 Wend, 523; Provost v. Calder, 2 Wend. 517.)
    3. The construction thus given by the Court to the deed from Abel French, Sen., in 1829, destroys the valuable prescriptive right the defendant has acquired by twenty-five years adverse possession.
    II. The conveyance from French to Van Auken, with the reservation contained therein, bounded the said Van Auken on the edge of the stream as it then was, and gave him no title to the land then under water. (Childs v. Starr, 4 Hill, 369.)
    III. The Judge erred in refusing to submit to the jury as a question of fact, the true location of French’s deed to Van Auken. (Frier v. Van Alen, 8. J. R. 495; Livingston v. Ten Broeck, 16 J. R. 94; Rockwell v. Adams, 7 Cow., 761; Dibble v. Rogers, 13 Wend. 586.)

      M. T. Reynolds, for defendant in error.
    1. The convey- anee from French to Van Auken being absolute, and without reserving any right to flow any part of the lands conveyed, except such right as is reserved, in the lease from Ten Broeck, divested the grantor of a right to flow the land conveyed. 2. The reservation in the lease referred to is in terms confined to the use of the stream for mining purposes only. 3. The grant containing an express reservation, thereby more strongly excludes all implied reservations.
   Jewett, Ch. J.

Taking into consideration the words of the exception and condition annexed, it appears plain to my mind that the. reservation of the creeks, kills, runs and streams of water, was intended by. the parties to the conveyance to be absolute and unqualified. There is an obvious distinction between the reservation, as it relates to mines and minerals, and the creeks, kills, runs and streams of water, and as it relates to the ground and wood, fire-wood and timber. In respect to the two first objects of the reservation, it applies, by its terms, to all of the mines and minerals, and to all of the creeks, kills, runs and streams of water. In regard to the latter two, the language is changed and qualified to so much ground, and all such wood, fire-wood and timber, as should be necessary for mining purposes, and excluding such part of the ground, and so much of the wood, &c., as should not be .necessary for those purposes.

But conceding that the language is ambiguous, so as to cast a doubt upon the construction, there are extraneous facts in the case 'which deserve an attentive consideration. The language of the reservation we are considering, is found in the original perpetual lease from Ten Broeck to Bullock, given in 1793, but it is referred to and adopted in the deed from French to Van Auken in 1829, and is therefore to be construed precisely as though it were incorporated into and formed a part of that deed. Now the time when, and the circumstances under which that conveyance was made, are, as it seems to me, of great importance in the construction of the conveyance itself. The same dam now complained'of was then in existence, and had .existed for a long period. It was then, and had for many years been used to supply a head of water to operate the mills of the grantor a few rods below the premises granted. Those mills would be rendered useless and valueless without a continuance'of the same right. No mines or minerals had ever been discovered, nor does it appear that either of the parties believed, or had any reason to believe, that any would ever be discovered, so as to render the reservation, under the construction claimed by the plaintiff below, of the least possible utility. These circumstances were in the view and contemplation of the parties at the time this reservation was incorporated into the deed of 1829, and they demonstrate, to my mind, that the intention was to reserve the waters of the Normanskill, for the same uses to .which they were then, and had for a long time been applied. The contrary supposition involves an absurdity which ought not to be imputed to either of the parties. Upon the construction which I place upon the reservation, the reason and object of it are plain and obvious. Upon the construction claimed by the plaintiff, it seems, to say the least, without any adequate object or aim.

It is a cardinal rule in the construction of contracts, that the intention of the parties is to be enquired into, and if - not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the Courts will look at the surrounding circumstances existing when, the contract was entered into, the situation of the parties, and of the subject matter of the instrument. . To this extent, at least, the well settled rule is, that extraneous evidence is admissible to aid in the construction of written contracts. (Wilson vs. Troup, 2 Cow. 195, 228; Parkhurst vs. Smith, Willes. Rep. 332; Bradley vs. The Washington, Alex. & Geo. S. P. Co., 13 Peters 89; Gibson vs. Tyson, 5 Watts. 34.) Applying this sound and rational principle to the language of the reservation in question, and to the extraneous circumstances just noticed, and it would seem impossible to err in the construction.

Another rule of construction is, that when the words of a grant are ambiguous, the Courts will call in aid the acts done under it, as a clue to the intention of the parties. (Livingston vs. Ten Broeck, 16 Johns. 22; Atty. Genl. vs. Parker, 3 Atk. 576; Atty. Genl. vs. Foster, 10 Ves. Jr. 338; Weld vs. Hornby, 7 East. 199; Rex vs. Osborn, 4 East 327; Doe vs. Ries, 8 Bing. 181 per Tindal, C. J.) Upon this principle we are permitted also to look at the undisturbed use of the right contested, on the one side, and the unqualified acquiescence, on the other, down to the time o.f the plaintiff’s purchase of the premises in 1837 ; and these circumstances are also justly ntitled to weight in the construction of this reservation.

I therefore come to the conclusion that the unqualified right to use the water of the Normanskill for milling purposes upon the premises of the defendant, was reserved in the deed of 1829. And that being so, it followed, that the right to flow so much of the land conveyed by that deed as was necessary for the reasonable and full enjoyment of the reservation, was also reserved. This reservation should be construed in the same way as a grant by the owner of the soil of a like privilege ; for- the rule is, that what will pass by words in a grant will be excepted by the .same words in an exception. (Shephard’s Touchstone, 100, 1 Saunders, 326, n. 6; Doud vs. Kingscote, 6 Mees. and Wels. 197; Hinchliffe vs. Kennard, 5 Bing. N. C.) Now if Abel French, Seri., .who owned the premises of both parties when the deed of 1829 was executed, had then conveyed the premises of the defendant below with “ all the creeks, kills, runs and streams of water,” the right to the beneficial enjoyment of -the dam, mills and privileges, situated on those premises would have passed by such conveyance, as a necessary incident to the subject matter actually' granted,although not specifically named. (Shephard’s Touch. 89, Bac. Abr. Title Grant, 1. 4.; Price vs. Braham, Vaughan’s Rep. 109.) Upon this principle if a man having a close to which there is no access except over his other lands, sell that close, the grantee shall have a right of way to it, for without it he cannot derive any benefit from the grant. So if the grantor should reserve that close, to himself, and sell his other lands, the law will presume a right of way reserved. (Howton vs. Frecusson, 8 Term Rep. 50; Holmes vs. Goring, 2 Bing. 56; Clark vs. Cogge, Cro. Jac. 170; Jorden vs. Atwood, Owen Rep. 121; Nickols vs. Luce, 24 Pick. 102, 1 Saund. 323, n. 6 ; Collins vs. Prentice, 15 Conn. R. 39, 3 Kent. Comm. 421, 422, 5th Ed.) The way in the one case is granted by the deed, and in the other case reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evidence of the intention of the parties.—For the law will not presume an intent that one of the parties should convey land to the other in such a manner, that the grantee can derive no benefit from the conveyance, nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. Under such circumstances the law will give effect according to .the presumed- intent of the parties. The sound and reasonable rule is, that whatever is necessary to the fair enjoyment of the thing granted or excepted, is incidentally granted or excepted. (Liford’s Case 11, Coke. 52; Doud vs. Kingscote, 6 Mees. and Wels. 174 ; Hodgson vs. Field, 7 East. 613.)

In the case before us, French, the grantor in the deed of 1829, when he conveyed the premises overflowed, to Van Auken, the plaintiff’s grantor, retained to himself the premises below on the same stream, and he expressly reserved the stream itself, by the phrase “ all creeks, kills, runs, and streams of water.” On the premises not granted he possessed mills, which would become worthless, if the reservation is to be construed so as to apply only to the stream in- its natural course. Under these circumstances I cannot doubt that the phraseology employed by the parties was intended to indicate the stream in the condition it then was, .and to reserve it for the uses to which it was then, and had been applied. And 'in adopting this construction, I do not think we do any violence to the language in which the parties chose to express themselves.

I am of opinion that the judgment of the Supreme Court should be reversed, and a venire de novo issued by that Court.

Gardiner, J.

The main question in the cause, is as to the true meaning and effect of the conveyance from Van Auken to the plaintiff, or which is equivalent thereto, the effect of the deed from Abel French, Sen., to Van Auken.

The reservations, conditions, and covenants contained in the lease from Ten Broeckto Bullock, are made parts of the deed from A. French, Son., .to Van Auken, and of the latter to the plaintiff, and must be construed as I apprehend in the same manner as if the language of the lease in these particulars had been incorporated into those deeds respectively.

Such is the legal inference from the reference in those deeds to the lease in question, (4 Wend, 374.) and the obvious import of the terms adopted by the parties.

The premises are conveyed toVan Auken, “subject to a rent of five bushels of wheat, one third part of a load of wood, and to such other covenants, reservations, and conditions, as are mentioned in the deed to Ten Broeck.” The reservations as to the rent and wood are placed upon the same footing with the covenants, conditions, and reservations in the lease, and are all adopted by the parties in presentí, as parts of the contract then made.

The exception in the lease above mentioned is in the following- words : “ Saving and always excepting to the said parties of the first part, out of the present grant and release, all mines and minerals that now are or may be found within the premises hereby granted and released, and all the creeks, kills, runs and streams of water.” • If the exception had stopped here, there probably would be no difference of opinion as to its construction. Two distinct subjects, mines and water are referred to, and both are excepted by the same general terms from the operation of the grant. The exception then proceeds to a new subject,—“ and so much ground within the same premises, as the grantor may think requisite and. appropriate at any time hereafter, for the erection of works and buildings for the working of said mines; also such wood and timber, as they may think proper for the working said mines, with liberty to dig through and use the ground for either of said purposes, to pass and repass with horses, &c., through the premises and .lay out roads therefor.” The latter clause of the exception above quoted, unquestionably refers to mines as the principle subject with which they are’ connected, and to which they are limited. The language is, so much ground, also such wo.od, as may be thought necessary for mining purposes.” But it is not perceived how this in the slightest degree qualifies or restricts the previous general exception as to the creeks, streams, &c. The language of the exception in reference to the latter, is not “ so much of the creeks, kills, runs and streams of water,” are excepted as the grantor or his assigns may think requisite and appropriate for mining purposes, or any other special object; but all creeks, &c., without limitation of- any kind, are reserved absolutely. In confirmation of this view, we find another clause of the deed by which it is made a condition of the grant, that neither the grantee nor his assigns “do at any time hereafter erect or permit or cause to be erected, any mill, or mill dam upon any creek, kill, or river, or stream of water, within the said premises.” The condition it will be perceived is as broad as the right reserved, if that extended to all the creeks, streams, &c., but it is not in harmony with the construction of the Supreme Court, which limits that right to such use of the water as may be deemed requisite for mining purposes.

We may ask why prohibit the grantee from the use of the water not reserved to the grantor, and therefore, of no value to him ?

The answer given by the learned Judge, who delivered the opinion of the Supreme Court is, that the lessors or their friends might have claimed a monopoly of the milling business. This is certainly a substantial reason why the grantor should reserve all the water, but not a very satisfactory explanation why the condition should be more extensive than the 'exception. I feel great confidence, therefore, in the opinion, that the construction given to this part of the grant by the defendant below, is the correct one, and that the Circuit Judge erred in refusing to charge as requested, “ that the reservation in said deed of “ all creeks, kills, streams and runs of water,” was an absolute reservation of the same for any and every purpose.”

It was argued that the ’conveyance from French to Van Auken, reserved no right to flow any part of the lands conveyed, and must, therefore, be deemed absolute, and the grantor was thereby divested of all right to flow the premises in question.

We have attempted to show that the reservation in the lease from Ten Broeck to Bullock, of “ all creeks, kills, runs and streams of water,” was unqualified. ' To what did the parties suppose these terms to relate in 1829, when the deed from French to Yan Auken was executed ? To the state of the stream as it was at the time of the conveyance ? or as it had been in 1793, the date of the lease to Bullock ? Their intention is to be collected from the conveyance itself, and the attending circumstances.

And first, none of the words of the reservation above quoted have any definite legal meaning.

A creek, according to Webster, sometimes signifies a small bay, inlet, or cove, and more generally in this country, a small river. Kill, 'is a Dutch word, signifying a channel or bed of the river, and hence the river or stream itself. A stream, means a river, brook, or rivulet, any thing in fact that is liquid and flows in a line or course.

It is presumed that a creek or stream does not cease to be such, merely because its course may be opposed by some obstruction whether natural or artificial. They do not cease to be streams, because in consequence of such obstruction their water may be deepened or flow with a diminished velocity. They would still flow, and the same quantity would pass any given point in its channel in the same time, and they would continue in common parlance' to be designated by their former names: ' '

The language of the reservation is therefore equally applicable to the condition of the stream as it was in 1829, or in 1793. -

In the second place, the circumstances attending the conveyance point to the former period exclusively. The legal presumption is that the parties were upon the land when the conveyance was executed to Van Auken. (2 Phillips Ev. 8 Lond. ed., 731; Cowen and Hill’s notes, 2 part, 1399.)

Let us assume therefore, what is substantially proved, that prior to the sale in 1829, to Yan Auken, French had taken the former to the premises, and pointed out to him -the dam, and its effect upon the stream, that it caused the water to set back one mile or more; to overflow a part of the premises he was about to purchase, and the use to which the water was applied; and had then said to him. in the language of the deed, I “ except and reserve all this creek, kill, stream, or run of water, and you are prohibited from erecting or permitting or causing to be erected any mill or mill dam thereon, and you agree that you will not give or cause to be given any manner of let or obstruction whatsoever to my prejudice in the full enjoyment of the rights, titjes, and privileges saved to me by the saving and exception aforesaid.”

I do not say that the grantee was bound so to understand, but it seems to me that he might naturally infer, that the reservation of the grantor, applied to the stream as it then was, and not as it would be if the dam was removed.

The phrase “ full enjoyment” for which the grantee covenants, is to be taken distributively, and applied as well to creeks and streams as to mines. This follows necessarily, if it be admitted that the reservation of the former was absolute, and if this be granted, it is difficult to explain how the grant- or, having reserved the stream, was to enjoy the privilege saved to him without the use of the water. Of course the proper exercise 'of. the privilege was.a question of fact for the jury. In Provost vs. Calder, (2 Wend. 517.) the exception in the deed was as follows:—“ Excepting and reserving to myself, &c., the sole and only right of the stream of water running through the land demised, and the party of the second- part is not to. erect or build any kind' of water works on said stream or creek, but the same I hereby reserve to myself as aforesaid.” It will be seen that the exception and prohibition are almost in the terms of the one under consideration. In the last clause, “ the same I hereby reserve to myself as aforesaid,” the immediate antecedent-of “same” is, creek or stream, and the reservation to which the word “ aforesaid” applies, was of the water, not of the right to build water works, a right not in terms reserved to the grantor, but which the grantee was prohibited from exercising. The Court, however, looking to the intention of the parties, very properly determined that the right to erect water works on the lands granted was reserved. If we substitute the covenant of Van Auken in this case, for the last clause of the exception in the case cited, the sentence would read thus: “ Excepting, &c., and the party of the second part is not to erect or build any kind of water works on said creek, but he hereby agrees not to give or cause to be given any manner of let or obstruction to said grantor in the full enjoyment of the right and privilege saved to him by the saving and exception aforesaid.” If the exception in Provost vs. Calder, was properly adjudged to reserve the land, the covenant, above referred to taken in connection with the prohibition and reservation, must be sufficient to reserve a mere easement. It is true, í lease was taken in that case, and the circumstance is adverted to as evidence of the understanding of 'the parties. In this also, we have the fact that Van Auken occupied the land for ten years, without objecting to the dam or the flowing of his premises. The evidence of a practical construction is as strong in the one case as the other.

Upon the ground therefore first, that the reservation of all creeks, streams, &c., in the lease of 1793, was absolute, and second, that by the true construction of the conveyance from French to Van Auken, the right to flow the premises for milling purposes, to the extent that they had been previously, and were at the time of the conveyance, overflowed, was reserved by the grantor, the judgment of the Supreme Court should be reversed, and venire de novo issue.

Johnson, J.

The deed from French to Van Auken, executed in 1829, is to be read and construed as though the reservations and conditions of the original lease were inserted in it, and were part and parcel of the language of the instrument. We are then to look at the whole instrument and give it such a construction as shall give full force and effect as far as possible to the grant and reservations according to the sense in which it "was mutually understood and relied upon by the parties" at the time. The question to be determined is, whether the Fformanskill was intended by the parties to be reserved for the working of mines merely, as assumed by the Supreme Court ? It is to be observed that the phrase “ mining purposes” used throughout by the Circuit Judge, the Supreme Court, and Counsel for the plaintiff below, is not to be found in the deed. The language there employed is “ working mines.” By referring to the reservations it will be seen that there is a reservation of “so much ground within the same premises,” as the grantor, his heirs and assigns might think necessary “ for the erection of the works and buildings, for the convenient working of the said mines.” Wood, firewood, and timber are also reserved “ to use in building, repairing, accommodating and working said mines.” But it nowhere appears that the grantor contemplated using the water-power in working the mines whenever or wherever they might be found, or putting it to any other use than he was making at the time of the grant and reservation. Indeed it is quite as difficult to perceive how the stream could be used to the least advantage for working mines,” as it is to believe that French intended to grant to Van Auken the right to destroy-his mill and dam immediately below, and only to reserve its use for this visionary and utterly impracticable service. Working mines consists mainly in excavating, draining, and raising ore ; a service performed by miners, and entirely distinct and separate from the business of smelting ores and forging metals, where water or steam-power is necessarily employed. Again, look at the condition. If the grantor intended only to reserve the streams, &c., for mining purposes, why not prohibit the grantee from erecting works to work mines ? Why confine the prohibition to mills and mill dams ? and that too under a penalty so stringent and sweeping as the forfeiture of the whole estate, unless he supposed he had by the reservation secured the use of the water for such purposes to himself.

The learned Justice who delivered the opinion of the Supreme Court, adverting to this condition in the deed or lease, says-: “ The lessors or 'their friends might have claimed a monopoly of the milling business for the neighborhood, and the condition might have been inserted to secure that.” I think it quite obvious that such was the object of inserting this conditioli. But how was that object to be secured? Surely not by reserving the water merely for working mines ! The construction of the Supreme Court shuts up the stream forever for milling purposes, unless these conflicting titles shall again chance to unite in the same person ; and whatever may be its capacity for useful employment, or the wants and necessities of the public, it can only be brought into requisition on the discovery of a mine, in some location where hydraulic power may be “ conveniently” tasked in excavating, and raising ore or other mineral substance to the surface.

This construction seems to me as much at war with all sound legal rules of interpretation as it is with a judicious public policy. I think we shall best give effect to the spirit, and intent of the instrument and the intentions of the parties by holding that in judgment of law, the grantor reserved the right to use the water as he was then using it, and as it had been used long antecedent to the reservation; and that we are bound to presume such to have been the intentions, unless it is limited and conferred to some other or different use by express and unequivocal terms.

But it is said that if the reservation of the stream is absolute and not limited to working mines merely, still the defendant below has no right to maintain his dam or flow the land of the plaintiff below beyond the ancient and' natural bed of the stream. This would be so, if at the time of the grant the stream flowed in its ancient and natural channel, and there was nothing in the reservation to show the purpose for which it was reserved. Here, however, it was different. At the date of this grant, and for a long time prior to that, the defendant’s mill-dam had been established, and if we are to believe the testimony of the witnesses, French and Van Auken flowed the water upon the premises in question, as high as it was at the commencement of this suit, and so continued without objection up to the time of the plaintiff’s purchase, in 1837. As far back as 1793, as appears by Ten Broeck’s deed, the stream was used for a saw-mill, and it might be a task of no little difficulty at this day to discover the ancient bed of the stream upon the premises in question.

I think there cannot be a reasonable doubt that the reservation in Van Aukin’s deed, was a reservation of the use of the stream, as its use and flow were then established, and that it was so understood, and intended by the parties. The reservation and the condition, taken together, fully justify such a conclusion. In Provost vs. Calder, (2 Wend. 517.) the reservation was the sole and only right of the stream of water running through the above demised piece of land, and the party of the second part is not to erect or build any kind of water-works whatsoever, on said stream of water or creek, but the samé I hereby reserve to myself as aforesaid,” and this the Court held to be a reservation of the right to use the water power upon the land. In that case, as in the one before us, it will be seen that there was only a reservation of the stream coupled with a provision that the other party should erect no water-works upon it. The cases of Burr vs. Mills, (21 Wend. 290, and 6 Connecticut, 289,) relied upon by the plaintiff’s counsel, are cases of a conveyance without any reservation, and are not in point. Here there is a reservation of a stream which the party was then using, coupled with an absolute prohibition of the same use to the other party, and the only question is, as to the nature, purpose, and extent of the reservation. I am of opinion that the Judge erred in the construction of the reservation in the deed, and that the judgment should b.e reversed.

Jones, J. and Weight, J., concurred in the result of the preceding opin'ons.

Bronson, J., delivered an opinion i$i favor of affirming the judgment, with whom Ruggles, and Gray, Js., concurred.


author: Bronson, J.

text:
    Coggill vs. The American Exchange Bank.
    One of two partners drew, in the name of his firm, a bill upon the plaintiff payable to the order of B, and having forged the name of B as endorser upon the bill, presented it to the Bank of Central New York, had it discounted in the regular . course of business, and applied the proceeds to his private use. The Cashier of the Bank endorsed the bill and transmitted it to the defendants for collection, and the plaintiff accepted and paid it to the defendants. After discovering that the payee’s endorsement was forged, he sued to recover back the money so paid. Held, that the action could not be maintained.
    B, the payee, being a stranger to the transaction, and having no interest in the draft, his endorsement was not necessary in order to transfer a good title to the party discounting the paper, or to entitle such party to receive the money upon it. -
    The plaintiff, having accepted and paid the bill under these circumstances, would have a right to charge the amount against the funds ‘of the drawers in his hands, or, if there were none, to maintain an action against them for money paid to their use.
    The case of The Canal Bank vs. The Bank of Albany, (1 Hill 287,) commented upon and approved; but distinguished from this case, inasmuch as there, the endorser whose name was forged, was the owner of the draft, and the only person entitled to receive the money upon it. Ber Bronson, J.

      It seems that the drawers, after having passed the draft with the payee’s name endorsed upon it, and received the avails of it in an action against them, would be estopped from controverting the genuineness of the endorsement.
    Where a bill is put in circulation by the drawer, with the endorsement of the payee forged upon it, a bona fide holder may treat it as a bill payable to bearer. Ber Bronson, J.
    Error to the Supreme Court, where Coggill sued the American Exchange Bank in assumpsit, to recover back the money which he, as the drawee and acceptor, had paid to the hank as the holders of a bill of exchange, upon which the name of the payee had been forged. The case was this; Shapley and Billings' were partners in business at Earlville, Madison county, and the plaintiff resided and did business in the city of New York. On the 28th of July, 1843, O liarles S. Billings, one of the partners, drew a bill in the name of the firm, on the plaintiff, for $1,500, payable to the order of Truman Billings, ten days after sight. ' Charles S. Billings forged the name of Truman Billings, as endorser on the draft, and also the name of Truman Billings, Junior; and with those names upon the bill, presented it to the bank of Central blew York, at Utica, for discount, on the 29th of July; and the bank discounted the bill and paid the money to Charles S. Billings. The discount was made in the usual course of business, the bank having no knowledge of the forgery, nor any reason to suppose that Billings was not' acting, as he professed to do, for his firm, though in point of fact he applied the money to his own private use. The bank, endorsed the draft, and sent it to the defendants for collection. The plaintiff accepted the bill, and paid the same at maturity, on the 12th of August, to the defendants. The plaintiff had no funds of the drawers in his hands, but accepted and paid the bill for their accommodation, in pursuance of an agreement made with Charles S. Billings to do so. Charles g. Billings absconded, about the 7th of August, on account of this and other forgeries. . On learning that the names of the endorsers had been forged, the plaintiff, on the 18th of August, called on the defendants to refund tho money, and then brought this action to recover it back. On the trial, the Circuit Judge charged the jury that the plaintiff was not entitled to recover, and the plaintiff excepted to his opinion. The jury found a verdict for the defendants, which the Supreme Court refused to set aside, and rendered judgment .for the defendants. The plaintiff brings error.

      B. D. Noxon and J. Van Buren, (Atty. Genl.) for plaintiff in error.

      J. A. Spencer, for defendants in error.

      Points for plaintiff in error:

      ' I. The endorsement of the name of the payee being forged, the defendant had no title to the bill, and the payment was therefore made without consideration, and under a mistake of fact. (Canal Bank vs. Bank of Albany, 1 Hill 289 ; Talbor vs Bank of Rochester, ib. 295 ; 6 Barn, and Cress. 671; 9
      ib. 902; 9 D. & R. 731; 5 ib. 403; Ch. on Bills, 430, 198, 265; 4 T. R. 28; 1 M. Bl. 607; 1 Car. & Payne 297; Doug. 633.)
    II. The plaintiff, by his acceptance of the draft, contracted to pay to the order of .Truman Billings, and being an accommodation acceptor, he may insist on the letter of his contract.
    III. Had the plaintiff refused to pay the bill, the defendant could not have compelled him, inasmuch as he could not make title, through a forgery.
    TV. The acceptance of the bill was no admission of the genuineness of the endorsements. The Central Bank, on the other hand, by endorsing the bill before it was accepted, guaranteed the genuineness of the previous endorsements, and thus gave them credit with the plaintiff, and it should not now be permitted to take advantage of its own wrong.
    Y. The plaintiff has no remedy over against the firm of Shapley and Billings, the drawers.

      Points for defendant in error:

    I. Truman Billings, the payee, never had any interest in the draft, and therefore his endorsement was not necessary to pass the title to the Bank of Central Hew York. The bank, by receiving it from Shapley and Billings, the drawers, became the owner, and had the right to receive the money upon it. (Ch. on Bills 220, 9th Am. from the 8th London ed; ib. 178; 2 Bailey Rep. 547; 5 Greenl. Rep. 282; 13 Mass. 304.)
    II. As between the drawers and acceptor, the bill is to be regarded as payable to the drawer’s order, or to the order of a fictitious person, or to the order of the Cashier of the Central Bank. (Plefts vs. Johnson, 1 Hill 112.)
    III. The plaintiff, as acceptor, had no interest in the endorsements, and no remedy upon them. He stands as the maker of a note, and the bank alone was interested in having genuine endorsers. (Ch. on bills 267, same ed. as above;

      Griffin vs. Rudd, 21 Wend. 502, 504; Suydam vs. Westfall, 4 Hill 211, 217.)
    IY. The plaintiff is not liable to Truman Billings, the payee, for the money upon this draft. Truman Billings having no interest in the draft, has no claim to recover upon it. The case, therefore, does not come within the' reason of the rule which allows an acceptor, who has paid the draft upon the faith of a forged endorsement, to recover it back.
   Bronson, J.

In an action against the drawee of a bill, it is not enough for the holder to prove that it has been accepted, without also establishing his title to the bill. And if the acceptor, under a mistake as to the fact of ownership, has paid the bill to one who had no title, the money may be recovered back, although it was paid to a bona fide holder. (Canal Rank vs. Bank of Albany, 1 Hill 287.) The plaintiff relies upon this case as not "being distinguishable from he own; but he is under a great mistake. It is not expressly stated in the report of that case, that Bentley, the payee named in the draft, was the owner of it; nor was it necessary that the fact should be stated, for where nothing appears to the contrary, the payee must be taken to be the owner. It may, however, be proper to mention, that it did expressly appear that Bentley W'as the owner of the draft. My recollection on the subject has been confirmed by inquiries made since •the argument. In the case now before us, the fact is fully established, that Billings, the payee named in the bill, never was the owner of it; nor was it drawn with the intent that he should either endorse it, or have any interest in, or concern with it. In the one case, the payee owned the bill, and could have maintained actions upon it, both against the ae ceptors and the drawers; while in the other, the payee has no interest in the bill, and cannot maintain an action upon it, for his own benefit, against any one. In the one case, payment to the holder of the bill would be no protection against an action by the payee, because he was the true owner ; while in the other, the payee, having no title, could in no event have it legal claim to the money. The distinction between the two cases, is very material and is quite too obvious to be mistaken by any one.

Although the payee, Billings, had no interest in the bill, the question still remains whether the Bank of Central New York, in whose place the defendants stand, acquired a good title to it. We think they did. Shapley and Billings drew the bill, and passed it to the bank, with the name of the payee endorsed upon it. By that act they plainly affirmed that the endorsement was genuine, so that the bill might be negotiated by delivery. By means of this representation they induced the bank to discount the bill; and if the bank had brought an action upon it against them, counting in the usual form, as upon a bill payable to Truman Billings, and endorsed by him, the drawers would, upon the plainest principles for maintaining honesty and fair dealing, have been estopped from controverting the genuineness of the endorsement. If an authority is needed in support of this doctrine, Meacher vs. Fort (3 Hill So. Car. 227, and Riley’s Law Cas. 248,) is a case directly in point.

There is another form of declaring in which-the bank might have recovered on the bill. As the payee had no interest, and it was not intended that he should ever bepome a party to the transaction, he may be regarded, in relation to this matter, as a nonentity; and it is fully settled that when a man draws and puts into circulation a bill which is payable to a fictitious person, the holder may declare and recover upon it as a bill payable to bearer. (Vere vs. Lewis, 3 T. R. 182; Minet vs. Gribson, id. 481, and 1 H. Black, 569, S. C. in the House of Lords; Collins vs. Emett, 1 H. Black, 313; Plets vs. Johnson, 3 Hill 112.) In legal effect, though not in form, the bill is payable to bearer; and it is always good pleading to state the legal effect of the contract. It is said in some of the cases, (and see Bennett vs. Farnell, 1 Camp. 130, and 180, b. note,) that when the action is against the accept- or of such- a bill, it must appear, that he knew the payee was a fictitious person. But I can see no sufficient reason for laying down such a rule. It is enough that the holder has a a good title to the bill, so that the acceptor on paying it, can properly charge the amount against the funds of the drawer in his hands, if there be any; and if there be none, that he may have an action against the drawer for money paid to his use. As the acceptor can never resort to the payee or endorser, hé has no interest in knowing through whose hands the bill has passed, except for the purpose of ascertaining that the holder has a good title.

It may be well enough, by way of discouraging such transactions, to hold, that one who discounts a bill for the benefit of the drawer, with knowledge of the fact that the payee is a fiictitious person, cannot recover against the acceptor. (Hunter vs. Jefferey, Peake. Add. Cas., 146.) But that doctrine has nothing to do with this case ; for the bank had no knowledge or suspicion at the time the bill was discounted, that the name of the payee had been forged.

The point has been adjudged, that when the maker of a promissory note puts it into circulation, with a forged endorsement of the name of the payee upon it, a bona fide holder may sue and recover against the maker as upon a note paya7 ble to bearer-; (Fort vs. Meacher, Supra.) and the same rule has been applied where the payee had no interest in the note, and it was not intended that he should become a party to the transaction. (Foster vs. Shattuck, 2 N. Hamp. 446.) Notwithstanding what was said in Dana vs. Underwood, (19 Pick. 99.) I think this sound doctrine ; and it is applicable to the case, of a bill put into circulation by the drawer with a forged endorsement upon it. A bona fide holder may treat it as a bill payable to bearer.

The bank had a good title to the bill as against the draAvers, and the payee ; and that Avas a good title against all the Avorld. Ho one is injured by this doctrine.' The bill has answered the end for which it Avas drawn. The plaintiif has paid money for the draAvers in pursuance of their request; and he has the same remedy against them that he would have had if the endorsement had been genuine.

I have spoken of the drawing and negotiating the bill as the act of both of the partners, although only one of them was present at the time, because such was the legal effect of the transaction. It is said that Charles S. Billings was not the agent of his partner Shapley for the purpose of ’committing a forgery; and that is very true ; but his right to draw and negotiate bills in the name of the firm has not been questioned ; and that is all that is material to the present inquiry. Is it not important to know who put the name of Truman Billings as endorser upon the bill. It is enough that Truman Billings was not the owner of the bill, and that it was passed to the bank with his name upon it.

As the bank discounted the bill for the firm of Shapley and Billings, it is of no importance that Billings applied the money to his own private use, instead of carrying it into the affairs of the partnership. And in relation to the estoppel, it is quite clear that the declarations and acts of one of the partners, made and done."while transacting the partnership business, and relating to it, are equally conclusive upon both of them. We have not been referred to any book which holds a different doctrine.

The plaintiff probably accepted and paid the bill under the mistaken assumption that the endorsement was genuine. But he was not mistaken about the main fact which he was concerned to know, which was, that the holder was the owner of the bill. Having paid the money to the proper person, the plaintiff has all the rights against the drawers which he would have had if the endorsement had been made by Truman Billings ; and there is no principle upon which this action can be maintained.

Judgment affirmed.


author: Jewett, Ch. J.

text:
    Hoes, and Mary, his wife, and Hager, and Anna, his wife, Appellants, vs. John M. Van Hosen, Respondent.
    The general rule is that the personal estate of a testator is the primary fund for the payment of legacies, and a testator is presumed to act upon this legal doctrine, unless a contrary intent is distinctly manifested by the terms and provi« sions of the will.
    Where the personal estate is not in terms exonerated, and is not specifically given away by the will, it will be deemed the primary fund for the payment of legacies notwithstanding such legacies, by the terms of the will, are expressly charged upon the persons to whom the real estate is devised. The charge upon the devisees in such a case will be deemed in aid, and not in exoneration of the primary fund.
    A testator gave to his wife the use of his real and personal estate during her widowhood; to two of his sons he devised the reversionary interest in his real estate, and directed them to pay legacies to his other son and to his daughters; but made no disposition of the reversionary interest in the personal estate; held, that such reversionary interest in the personal estate was the primary fund for the payment of the legacies.
    This was an appeal by the complainants from a decree of the Chancellor, reversing that of the Vice Chancellor of the third Circuit, and directing the complainants bill to be dismissed with costs. The facts are sufficiently stated in the opinion of Chief Justice Jewett.- (See also, 1 Barbour, Ch. Hep. 380.)

      H. Hogeboom, for appellants.

      A. L. Jordan, for respondent.
   Jewett, Ch. J.

The testator, on the 17th day of September, 1817, duly made his last will and testament, and on the same day died, leaving a widow and six children. At the time of his death, his property consisted of a farm of about 190 acres, worth about $9,500, of farming utensils and stock thereon, worth about $848 06, of choses in action and other personal estate, worth about $5,827 65. At the time of his death, Ms debts owing by Mm amounted to about $144 55, and Ms funeral charges to $59 33.

To his two sons John and George, he devised and bequeathed all of his farm of land, with all thereto belonging, with his house, barn, &c., their heirs and assigns forever, share and share alike, with all of Ms farming utensils, and also, all his stock of whatever nature then on Ms farm; to Ms son Lambert he bequeathed, three thousand dollars, to be paid witMn one year after his decease, by his two sons, John and George; to each of his three daughters, Mary, (called Dorothe,) Anna and Jane, he bequeathed the sum of seven hundred dollars, also to be paid by Ms said two sons, John and George, as they severally should become of age.

To Ms wife Dorothe, he gave the use and income of all his estate during her widowhood. He appointed Ms wife executrix, his son John and his brother George executors, and made no other disposition of his personal estate.

The two executors proved the will and took out letters testamentary. The executrix did not qualify as such; George, one of the executors, died in 1822, leaving the son John sole executor, who soon after the testator’s death made an agreement with the widow, by which he took the possession of the entire estate and used and occupied the same, for his own benefit and that of his brother George, until the year 1825, when he purchased Ms brother’s interest in said estate.

The debts and legacies were paid by John out of the testator’s personal estate. The widow died in 1834.

The complainants now claim an account of the reversionary interest in that part of the personal estate not specifically bequeathed to the two sons John and George, and payment of their shares therein as next of kin of the testator.

TMs claim is resisted upon two grounds, first, on the ground, that such reversionary interest was the primary fund for the’ payment of the legacies, after the debts were paid and by which it was exhausted. Second, on the ground that Maria before her marriage and Hager after his marriage with Anna, respectively released their claims to the defendant.

As to the first ground: It is a rule in the construction of wills that the intention of the testator should govern in all cases, except where the rule of law overrules the intention ; and this intention, it is well settled, must be collected from the whole of the will or writing itself. (Bradley vs. Leppingwell, 3 Burr. 1541; Evans vs. Astley, 3 Burr. 1581.) The personal estate of the testator is deemed the natural and primary fund to be first applied in discharge of his personal debts and general legacies, (Toller L. of Ex. 417.) and the testator is presumed to act upon this legal doctrine, until he shows some other distinct and unequivocal intention. (1 Story’s. Eq. § 573.) It is a rule also that, in the event of a deficiency of assets to pay the debts of the testator, payable out of the personal assets, and discharge the specific and general legacies, the latter must abate in proportion to the deficiency, or, be lost altogether, unless the real estate is charged with their payment.

The old law was, that the personal estate could not be exempted from the payment of debts and legacies without express words; but this is now admitted not to be necessary; and it is sufficient, if there appears upon the will an “ evident demonstration,” a “plain intention,” or a “necessary implication.” (Gittins vs. Steele, 1 Swanst. 25; Watson vs. Brickwood, 9 Vesey, Jr., 447; Booth vs. Blundell, 1 Meriv. 192, S. C. 19 Vesey, Jr., 517; Kelsey vs. Deyo, 3 Cow. 133; Tole vs. Hardy, 6 Cow. 333; Glen vs. Fisher, 6 John, Ch. 33; Livingston vs. Newkirk, 3 John, Ch. 319.) What shall constitute proof of such an intended exemption by the testator Is not in many cases ascertainable upon abstract principles; but must depend.upon circumstances—and different Judges have held different opinions. Lord Thurlow thought it was a point so slender and fine that he could not collect any certainty upon the question. (Ancaster vs. Mayer, 1 Brown’s Ch. R. 462.) And Lord Eldon, (in Booth vs. Blundell, Supra.) remarks, “ it is scarcely possible to find any two cases, in which the Court altogether agrees with itself; there being hardly a single circumstance, regarded in one, as a ground of inference in favor of the intention suggested as- belonging to that particular will, that is not in some others treated as a ground against that intention.”

What then was the intention of the testator, plainly collecIccted from the whole will in respect to the fund out of which the legacies were expected or required to be paid ? Was it, that these legacies should be paid by his sons, John and George personally, in consideration of the devise of the real estate and bequest of the farming utensils and stock on his farm in remainder after the death or re-marriage of his widow to them, in exoneration of. the reversionary interest in the personal estate undisposed of by his will ? Or was it that such devise and bequest to the two sons with directions to them to pay, should, be in aid of the reversionary interest in that personal estate, and that that interest should be the primary fund for the payment of the legacies ?

There is no express charge of the legacies upon the estate given to John and George in exoneration of the reversionary interest in the personal estate not specifically bequeathed; nor can any such charge be implied, if the testator is presumed to have acted upon the doctrine that his personal estate was the primary fund for the payment of his legacies : yet it is clear that the testator intended that the legacies should in no event fail or abate, and therefore, by his direction that John and George should pay such legacies, evidently in consideration of his bounty to them, he not only created a charge üpon them personally, but in equity, a charge upon the estate bequeathed and devised to them.

The mere making of a provision for the payment of debts or legacies out of the real estate, does not discharge the personalty. There must bo an intention not only to charge the realty, but to exonerate the personalty: not merely to supply another fund, but to substitute that fund for the property antecedently liable. Thus in numerous cases, it has been held that neither a charge of debts on the testator’s lands generally, or on a specific portion of them, nor. a devise upon trust for sale, however formally or anxiously framed, nor the crea* tion of a term of years for the purpose of such charge, will exonerate the personalty. (White vs. White, 1 Vernon 43; Bridgman vs. Dove, 1 Atk. 103 ; Lord Inchiquin vs. French, 1 Cox. 1; Hancox vs. Alley, 11 Vesey, 186; Tower vs. Lord Rous, 18 Ves. 132; Ancaster vs. Mayer, 1 Brown, Ch. R. 454, Ram. on Assets, Ch. 3, § 5; 2 William’s Exrs. 2 Am. Ed. 1215.)

Nor is it material that the charge is imposed on the devisee in the terms of a condition, as where real estate is devised to A. he paying the debts and legacies or the like. (Bridgman vs. Dove, 3 Atk. 203 ; Mead vs. Hide, 2 Vernon, 120; Watson vs. Brickwood, 9 Vesey, Jr., 447, Roper on Leg. 163.)

. In all these cases, the charge upon the realty, or the condition that the devisee shall pay as directed, is deemed and taken to have been made in aid of the primary fund, and not in exoneration of it, unless there is an absolute disposition of all the personal estate of the testator; in such case, the intent of the testator to charge the realty in exoneration of the personalty, is sufficiently manifested. In this case there was no disposition of the reversionary interest in more than f>5,0'00 value of the personal estate.

I am satisfied, therefore, upon this branch of the defence, that the Chancellor came to a correct conclusion.

It is however insisted, that assuming that the legacies were to be paid out of the reversionary interest in the personal estate not bequeathed to the devisees, the Chancellor, instead of dismissing the bill, should have directed an account of this property to he' taken to ascertain whether the debts and legacies would exhaust it—in the event that it should be held that the releases were inoperative beyond the amount of the legacies of the reléasors. If the case was such that it could not be seen, without a reference, that they would exhaust it, an account in the event mentioned should be taken. But there is no room for any doubt upon that question. The widow died in June, 1834. , Until then she was entitled to the use and income of the personal estate. The reversionary interest of that portion not specifically bequeathed to John and George, amounted to $5,827,65. The legacy to Lambert alone, with interest, after the expiration of one year from the death of the testator, to which the defendant would be entitled to be allowed, without any account of the three legacies to the daughters, of $2,100 in the aggregate, and without the debts and the interest on each from the time the same were payable, greatly exceeds the value of that personal estate. . There is not the least ground appearing in the case rendering it proper or necessary for such reference.

Being entirely satisfied of the soundness of the defence upqn the first ground, I do not deem it necessary to examine the other. I am of opinion that the decree of the Chancellor should be affirmed.

Decree affirmed.


text:
    Schermerhorn, Appellant, vs. The Mohawk Bank Resp’ts.
    Where a bill was regularly taken, as confessed in the Court of Chancery, and the Chancellor, on motion before him, refused to open the default, on the ground that the answer which the defendant sought to put in was not a good defence to the suit on the merits; held, that the decision of the Chancellor was not the subject of appeal.

      J. Rhoades and S. W. Jones, for the respondents,
    moved to dismiss the appeal. The Mohawk Bank filed a bill against Schermerhorn and others to set aside certain assignments as being a fraud upon creditors. After the bill had been taken as confessed, the defendant, Schermerhorn, moved to open the default, and for leave to defend. The Chancellor denied the motion; and from that order the defendant has appealed. The case of Fort vs. Bard, decided in September last, is in point to show that an appeal will not lie.

      A. Taber and F. Bandford, for the appellant,
    said there was a distinction between this case and the one cited. In Fort vs. Bard, the Chancellor denied the motion to open the default, on the ground that the defendant wished to set up an inequitable defence. But it was not so in this case. And this was not a mere question of practice. The Chancellor did not put his decision on the ground that the default had not been sufficiently excused; but he examined the case on the merits, and denied the motion on the ground that the facts on which we relied did not constitute, a good defence. On that question we think the Chancellor erred; and in such a caso an appeal should be entertained.
   By the Court,

Bronson, J.

There is no difference in principle between this case and the one cited at the' bar. The motion to open a regular default is always a question of practice, addressed to the discretion of the Court in which the suit is pending; and it is not, in its nature, a proper matter for review in an Appellate Court. This is so, whatever may be the ground on which the motion was 'decided..

Appeal dismissed.


text:
    Brady, Appellant, vs. Donnelly, Executor, &c., Respondent.
    The defendant to a bill in equity, put in a demurrer thereto, which was overruled by the Vice Chancellor. On appeal to the Chancellor, the order was affirmed. The defendant then appealed to this Court, and afterwards answered the bill. Held, that by answering, the appeal was .waived.
    Motion to dismiss appeal. The case was this: The bill was filed before the Vice Chancellor of the First Circuit, and the defendant Brady put in a demurrer thereto, which was overruled by the Vice Chancellor, with leave to file a second demurrer. The defendant appealed to the Chancellor, who, on the 26th of May, 1846, made an order affirming the decision of the Vice Chancellor, and from that order the appeal to this Court now in question was taken. In pursuance of the leave given, as above mentioned, the defendant, before the 26th of May, 1846, put in a second demurrer, which was also overruled by the Vice Chancellor in September, 1846. From this decision another appeal was taken by the defendant to the Chancellor, but the order so appealed from was affirmed by default in January, 1847. The appeal last mentioned not being made in such a manner as to stay proceedings, the complainant, on the 14th of December, 1846, had an order entered taking the bill as confessed. This order was opened by consent, and the defendant, in the same month of December, put in his answer -fully denying the equity of the bill. A replication thereto was filed, and the cause proceeded upon the merits under the issue so joined. It appeared that after the answer was put in, the above appeal to this Court was noticed on both sides for hearing at two or more successive terms of the Court. The solicitor for the respondent, in his affidavit for the motion, stated, that .until within a week' he had not been advised of the impropriety of prosecuting the appeal after the defendant had answered the bill as aforesaid.

      Charles O’Connor, for the respondent, insisted that by answering the bill the defendant had waived his appeal.
    «7. T. Brady, for the appellant.
   After advisement, the Court (Jones and Gray, Js., dissenting) held that the appeal was waived, and ordered the same to be dismissed.