text:
Astor v. Merritt/Opinion of the Court

This suit was brought by William Astor, in a court of the state of New York, and removed into the circuit court of the United States for the Southern district of New York, to recover the sum of $1,880 paid to the defendant, as collector of the port of New York, by the plaintiff, for customs duties, on the twenty-second of September, 1878, on certain goods brought by the plaintiff with him from Liverpool, as a passenger in a vessel. The goods and the duties exacted were as follows, (the items of the goods not being more particularly set forth in the record:) 45 pounds wool and worsted wearing apparel, at 50 cents per pound, $22.50, and 40 per cent. on its value at $990, $396, amounting to $418.50; cotton wearing apparel, 35 per cent. on its value at $150, amounting to $52.50; leather gloves, 50 per cent. on their value at $250, amounting to $125; and silk wearing apparel, 60 per cent. on its value at $2,240, amounting to $1,284; being a total of $1,880. The plaintiff recovered a verdict for $737, with interest from September 22, 1878, on which he had a judgment. He has brought a writ of error, claiming that he was entitled to recover the entire $1,880, on the ground that the goods were exempt from duty under section 2505 of the Revised Statutes, (page 489, 2d Ed.,) which provides that the importation of the following articles shall be exempt from duty; 'Wearing apparel in actual use and other personal effects, (not merchandise,) professional books, impiements, instruments, and tools to trade, occupation, or employment, of persons arriving in the United States. But this exemption shall not be construed to include machinery, or other articles imported for use in any manufacturing establishment, or for sale.'

At the trial, in October, 1880, the plaintiff testified in his own behalf, that, in the summer of 1878, he, a citizen of the United States, was traveling in Europe with his wife, three daughters, and son, also citizens of the United States, and returned to this country with them, arriving in New York, by a steamer, on September 22, 1878; that he had, in his personal baggage, certain articles of wearing apparel, being the goods above mentioned, belonging to himself and other members of his family, purchased in Europe during that summer, on which the duties above mentioned were exacted, and that they were paid in order to get possession of the wearing apparel; that the articles belonged to him, and were intended for the personal use of himself and his said family; that the articles for his own and his son's use were such articles of wearing apparel as they ordinarily wore at that season of the year; that they were principally intended for use in the winter, and were in no sense imported by him as merchandise; that some of his own and his son's wearing apparel had been actually worn by them personally, and he explained that fact to the custom-house authorities at the time of the exaction of the duties; that the articles of wearing apparel of himself and his son were purchased by him with the intention of using them wherever he and his family might be; that he did not know, when he purchased them, how long he was going to remain abroad; that, when they were purchased at Paris and sent home, they were placed in with their other wearing apparel, so as to form part of their ordinary wardrobes; that, if they had been detained in Europe, the garments were such as they would have required the moment the weather grew cool; and that the articles were bought for use whenever the weather should make it proper to use them, and without reference to where he and his son should be at the time they encountered cold weather.

Mrs. Astor testified that the garments of ladies' wear contained in the baggage were generally dresses and cloaks of woolen, worsted, and silk, and linens, intended entirely for her own and her daughters' use, and which had been purchased, under her supervision, in Paris; that such garments were intended for the separate and individual use of herself and daughters as soon as it was cold enough to wear them for the approaching season; that some were adapted for ordinary wear, and some for balls and entertainments, and all were made upon measure; that the aggregate quantity of wearing apparel which formed part of the baggage of herself and daughters rather fell short of their usual supply of such articles for that season of the year; that she was obliged, after she arrived in this country, to have some dresses made; that none of the articles were purchased for sale or exchange, but only for the special use of the persons for whom they were made; that, when they were purchased and sent home from the persons who made them, they were placed indiscriminately in with the wardrobe of the particular person for whom they were intended, so as to form part of the personal wardrobe of such person at the time; that a great part of them had been worn before she returned to this country, but some few had not been worn, because there was no special occasion to wear them; that, if the party had been detained in Paris, and cold weather had suddenly come on, the articles were such as she and her daughters would have required for immediate use; that, if they had remained for the winter, or a month longer, they would have worn the dresses intended for entertainments; that, from the time when these articles were purchased, there was nothing to prevent their being put on and worn the moment a proper occasion for wearing them arrived; that the articles lasted during the fall and winter, until spring, and had been entirely consumed by use; that she thought there were four dresses that had not been worn, because there had been no occasion to wear them; that the party had intended, at the time the articles were purchased, to spend the winter in America, but, if their plans had been changed at all, they would have remained in Europe and worn the articles there; that they went to Europe in May or June, 1878, traveled through England and to Paris, then through the continent and back to Paris; that most of the articles were ordered upon their first arrival in Paris, before traveling through the continent, and were paid for on coming back; and that most of them (about half, perhaps) were ordered and worn before traveling through the continent, because they were then needed.

It appeared in evidence that the examiner who appraised the dutiable articles in the plaintiff's baggage went upon the principle of including as dutiable articles those which seemed not to have been worn.

The plaintiff's counsel requested the court to charge the jury as follows: '(1) The general purpose of the statute being to impose duties upon the importation of merchandise, the exemption of the wearing apparel of passengers is in accordance with that purpose, and the language providing for such exemption should have a wide and liberal interpretation. (2) The general purpose of exempting passengers' baggage, being as much in harmony with the statute as the general purpose of imposing duties on merchandise, all language which seems to bring such baggage within the same category with merchandise should be strictly contrued against the government, and all language tending to keep up the distinction should be liberally construed in favor of the citizen. (3) The words 'not merchandise,' in the clause of the statute now in question, relate to the words 'wearing apparel in actual use,' as well as to the words 'personal effects,' and the clause might properly be paraphrased as if it read 'wearing apparel in actual use (not merchandise) and personal effects (not merchandise.)' (4) The words 'not merchandise,' thus used, may properly be regarded as explaining and defining the words, 'in actual use,' and the clause may be rightly construed as if those were synonymous or correlative terms. (5) If, therefore, this wearing apparel was 'not merchandise,' it was 'in actual use,' within the statutory meaning of that term, and was therefore exempt. (6) The words 'in actual use,' not being scientific or technical words, should be applied in the common and ordinary sense in which they would be generally employed. If, therefore, this wearing apparel, under the circumstances disclosed in the testimony, would be generally and ordinarily described as being in actual use of the plaintiff and his family, then it should have been admitted duty free. (7) The words 'in actual use' do not mean 'in actual, immediate, personal use' at the moment, but must have a meaning somewhat more extended than that. The statute clearly shows that some wearing apparel intended for and awaiting use in a passenger's trunks, as well as that upon his person at the time, is to be admitted free. (8) If the words 'in actual use' were intended (as they clearly were) to embrace some wearing apparel which was only intended for and awaiting use in the passenger's trunks, there is nothing in the statute which shows an intention to exclude any wearing apparel so situated, and consequently, all such wearing apparel should be admitted free, provided the other requirements of the statute are fulfilled, viz, that it is 'not merchandise,' and belongs to the passenger. (9) Wearing apparel is properly and strictly 'in actual use' from the time when its use by its owner begins until it is finally consumed or worn out. (10) The use of wearing apparel which is purchased for the immediate personal comfort of the owner may be properly said to begin from the time when it is sent home from the maker and takes its place, ready for wear, in the owner's wardrobe. If these articles were in that condition they were 'in actual use,' within the statute, and should have been admitted free. (11) that 'wearing apparel' must be the 'wearing apparel' must be worn once or twenty times before it can be said to be in 'actual use,' and the jury is not bound by any such test in determining whether these articles were 'in actual use' when the plaintiff arrived here in September, 1878. (12) Wearing apparel suitable for the season of the year which is approaching at the time, not exceeding in quantity what the owner would ordinarily provide for himself and keep on hand for his reasonable wants, and purchased for his own use, as occasion may require, may be properly said to be 'in actual use,' within the meaning of the statute, from the time when they come into the owner's hands and are placed in his wardrobe, to be word whenever the proper occasion arrives; and, if these articles come within that test, they should have been admitted free. (13) The terms 'in actual use' as employed in the statute, are substantially equivalent to the words 'in present use,' including in their meaning not merely a reference to the actual present, but to so much of the immediate future as a person would ordinarily provide for in his every-day wardrobe; and if, in this sense, these articles were 'in actual use' they were exempt from duty. (14) All the necessities of modern civilization require that every person should continually renew his wardrobe, as articles are worn out. Whatever is purchased for that purpose passes into 'actual use' the moment it is sent home and placed by the owner among the other articles which form his present wardrobe; and if these articles were in that category they were exempt from duty.' The court refused to charge in accordance with any of these requests, and the plaintiff excepted to each and every such refusal.

The court then charged the jury as follows, and the plaintiff excepted to the parts which are in brackets: 'Certain facts are admitted or have been proved: (1) There was no evasion or goods by the plaintiff, and there is no character, and use or no use, of the goods by the plaintiff, and ther is no complaint of any departure from courteous treatment by the defendant's officers. (2) There is no dispute in regard to the value of the articles. (3) It is not denied that the clothing was to be used by the defendant's family, in this country, during the season then approaching, and was not excessive in quantity for persons of their means, habits, and station in life, and was their ordinary outfit for the winter. (4) That a part of the articles had not been worn, and that all were bought for use, and to be worn in this country, if the plaintiff's plans for a speedy return should be carried into effect. The main question in the case, and to obtain an answer to which this suit was brought, is whether, under the foregoing facts, the unworn articles were legally free from duty, as wearing apparel 'in actual use;' in other words, to ascertain the proper definition of the phrase or term 'in actual use.' The plaintiff insists that wearing apparel, suitable for the season of the year just approaching at the time, not exceeding in quantity what the owner would ordinarily provide for himself and keep on hand for his reasonable wants, and purchased for his own use, as occasion might require, may be properly said to be 'in actual use,' within the meaning of the statute, from the time when they come into the owner's hands, and are placed in his wardrobe, to be worn whenever the proper occasion arrives. It is our duty to ascertain, if possible, the intention of the legislature, from the language which is used, and ordinarily to give to the language its natural signification. In my opinion, by limiting the exemption from duty of travelers' wearing apparel to that 'in actual use,' congress meant to say that new and unused wearing apparel purchased in a foreign country, not for present use, but for prospective use in this country, though that prospective use might be in the near future, should pay duty; and that it is not the right of travelers to have new and unused wearing apparel which has been purchased abroad, not for use abroad, but for use upon their return to this country, admitted free of duty. I, therefore, limit the exemption, in general, [to wearing apparel which had been actually used as such before the arrival of the owner in this country,] and define ['wearing apparel, actually in use, (not merchandise,)' to mean wearing apparel bought for personal use and not for sale, which has been really subjected to use in the way in which that particular wearing apparel is ordinarily used.] Apparel bought in a foreign country not for present use, but for the purpose of anticipated use in this country, and not actually subjected to use in a foreign country, for the purpose for which it was procured, but put upon the person as a colorable device to escape duties, is not within the exemption of the statute. Some exceptional cases have been cited by the learned counsel for the plaintiff; and, in view of such cases, I may also say that the term also includes wearing apparel which has been purchased for the purpose and with the bona fide and not colorable intent of an actual, present, Personal wear, and subjected to use in a foreign country or in transit, and not merely for prospective use in this country, although said apparel may not actually have been used abroad. The last clause of the definition is not pertinent, as I understand the testimony, to the case on trial. Under this construction of the statute, [the unworn goods of the plaintiff were not exempt.] The apparel which had been worn, it not having been claimed that such wearing was colorable or took place in any other than the ordinary way in which clothing is subjected to use, was exempt. And this brings me to the question of fact, which is for the determination of the jury, whether any part of the assessed goods, and, if so, how much, had been worn.'

The court then commented on the testimony as to what articles had been worn and what had not been worn, and added: 'Your duty is to examine the testimony on both sides, and ascertain whether the plaintiff has proved that any, and, if so, how many, of his worn articles were assessed for duty. The amount, if anything, which he has overpaid is the measure of the defendant's liability. * *  * I suppose it is conceded that some were not worn. The amount, if anything, which he has overpaid,-that is, the amount, if anything, which he has paid upon worn goods,-is the measure of the defendant's liability.'

The parts of the charge excepted to were these: (1) That, although the clothing in question was confessedly not excessive in quantity for persons of the means, habits, and station in life of the plaintiff and his family, and was their ordinary outfit for the winter, the exemption of wearing apparel from the payment of duty was limited 'to wearing apparel which had been actually used as such before the arrival of the owner in this country.' (2) That the terms 'wearing apparel in actual use, (not merchandise,)' as contained in the statute, 'meant wearing apparel bought for personal use, and not for sale, which was been really subjected to use in the way in which that particular wearing apparel is ordinarily used.' (3) That 'the unworn goods of the plaintiff' in this case were not exempt.

By section 46 of the act of March 2, 1799, c. 22, (1 St. 661,) it was provided that 'the wearing apparel, and other personal baggage, and the tools or implements of a mechanical trade only, of persons who arrive in the United States, shall be free and exempted from duty;' and a separate entry of such articles was required, with an oath that the packages contained no goods other than 'the wearing apparel and other personal baggage' and tools, and were not directly or indirectly imported for any other person or intended for sale. By section 2 of the act of April 27, 1816, c. 107, (3 St. 313,) it was declared that the following articles should be imported into the United States free of duties, that is to say, 'wearing apparel and other personal baggage in actual use, and the implements or tools of trade of persons arriving in the United States.' This continued to be the language in section 1 of the act of September 11, 1841, c. 24, (5 St. 463,) and until section 9 of the act of August 30, 1842, c. 270, (5 St. 560,) was enacted, which introduced the language now found in the first clause of the paragraph above cited from section 2505 of the Revised Statutes, which language was repeated in Schedule 1 of section 2 of the act of July 30, 1846, c. 75, (9 St. 49,) with the addition of what is now found in the second clause of said paragraph; and the whole appears again in section 3 of the act of March 3, 1857, c. 98, (11 St. 193,) and in section 23 of the act of March 2, 1861, c. 68, (12 St. 196,) from which it was transferred to the Revised Statutes. Although the description of what is so exempt is thus changed from what it was in section 46 of the act of 1799, the Revised Statutes require, in section 2799, the same oath on entry which was so required by the act of 1799, and state that it is required 'in order to ascertain what articles ought to be exempted as the wearing apparel and other personal baggage, and the tools or implements of a mechanical trade only, of persons who arrive in the United States.'

The course of legislation is thus seen to have been to exempt from duty, in 1799, 'wearing apparel and other personal baggage;' in 1816, 'wearing apparel and other personal baggage in actual use;' in 1842, 'wearing apparel in actual use and other personal effects, (not merchandise;)' and in 1846, and thenceforward, the same articles as in 1842, with the limitation as to excluding from the exemption articles imported for sale. The enactment in question is repeated in the statute now in force as section 2503 of the Revised Statutes, by virtue of section 6 of the act of March 3, 1883, c. 121, (22 St. 521.) The question raised is therefore one of continuing importance and interest under the customs laws.

It is quite apparent that the circuit court finally applied to the plaintiff's wearing apparel the test of whether the given article had been bought for personal use, and not for sale, and had also been worn, and subjected it to duty unless it had been actually worn. The court refused to give the twelfth instruction, which it stated to be, that articles of apparel, suitable for the season of the year just approaching at the time, not exceeding in quantity what the owner would ordinarily provide for himself, and keep on hand for his reasonable wants, and purchased for his own use, as occasion might require, may be properly said to be 'in actual use,' within the meaning of the statute, from the time when they come into the owner's hands, and are placed in his wardrobe, to be worn whenever the proper occasion arrives, and, if the articles in question came within that test, they should have been admitted free. The court very properly said that putting upon the person an article of apparel as a colorable device to escape duties, was not wearing it, or an actual use of it, in the sense of the statute. It further said that the term 'in actual use' also includes wearing apparel which has been purchased for the purpose and with the bona fide and not colorable intent of an actual, present, personal wear, and subjected (subjection?) to use in a foreign country, or in transit, and not merely for prospective use in this country, although said apparel may not actually have been used abroad. But it added that this last clause of the definition was not pertinent, as it understood the testimony, to the case on trial. The court, however, in all it said, limited the exemption from duty as not including new and unused wearing apparel purchased abroad, not for present use, but for prospective use in this country in the near future. While it said that the exemption might include what had been bought for the purpose and with the bona fide and not colorable intent of actual present wear abroad or in transit, and not merely for prospective use here, although not actually used abroad, it said that the latter clause did not apply to this case, because the wearing apparel in question was bought to be worn here, as an outfit for the winter.

It is contended here, for the defendant, that unworn wearing apparel, purchased for an approaching season, cannot be exempt from duty, as 'in actual use,' before that season has arrived, while wearing apparel proper for the season of arrival from abroad may, unless there is a want of good faith, be considered as 'in actual use,' whether it has been already used or not. We are of opinion that the court should have given a different construction from that which it gave to the statute, as applicable to the facts of this case. If the articles in question fulfilled the following conditions, and were (1) wearing apparel owned by the plaintiff and in a condition to be worn at once without further manufacture; (2) brought with him as a passenger, and intended for the use or wear of himself or his family who accompanied him as passengers, and not for sale, or purchased or imported for other persons, or to be given away; (3) suitable for the season of the year which was immediately approaching at the time of arrival; (4) not exceeding in quantity or quality or value what the plaintiff was in the habit of ordinarily providing for himself and his family at that time, and keeping on hand for his and their reasonable wants, in view of their means and habits in life,-they were to be regarded as 'wearing apparel in actual use,' of a person arriving in the United States, even though they had not been actually worn.

If a person residing in the United States should purchase wearing apparel here, in a condition ready for immediate wear without further manufacture, intended for his own use or wear, suitable for the immediately approaching season of the year, and not exceeding in quantity, quality, or value the limit above mentioned, no one would hesitate to say that such wearing apparel was 'in actual use' by such person, even though some of it might not have been actually put on or applied to its proper personal use. The word 'actual,' in the lexicon, has as a meaning 'real,' as opposed to 'nominal,' as well as the meaning of 'present.' 'In use' is defined to be 'in employment;' 'out of use' to be 'not in employment;' 'to make use of, to put to use,' to be 'to employ, to derive service from.' These definitions aid in showing that it is too narrow a construction of the words 'in actual use,' as applied to this case, to say that they require that the wearing apparel should have been actually worn.

It is manifest that, by the words 'in actual use,' congress did not intend that those words should be limited to wearing apparel on the person at the time. They must have a more extended meaning. The test of having worn the article, as a criterion whether it is 'in actual use,' is arbitrary, and without support in the statute. An article of wearing apparel, bought for use, and appropriated and set apart to be used, by being placed in with, and as a part of, what is called a person's wardrobe, is, in common parlance, in use, in actual use, in present use, in real use, as well before it is worn as while it is being worn or afterwards. The test of wearing, must therefore be rejected. What test shall be adopted? We are aided by the other language of the statute, in saying that the articles must be 'personal effects,' and must not be 'merchandise,' and must not be 'for sale.' These words of limitation, on the one hand, serve to indicate that, on the other, if the articles, being wearing apparel of the arriving passenger, are fairly personal effects of his, and not merchandise, and not for sale, a construction of the words 'in actual use' is to be sought for which will carry out the spirit and intent of the entire provision of the statute, and, while it comports with the ordinary habits of passengers and travelers, will not open the door for fraud. Such a construction we believe that one to be which we have laid down for a case like the present. As regards citizens of the United States returning from abroad, and foreigners visiting this country, it cannot be supposed that congress intended they should have worn all the wearing apparel they bring, or else pay duty on it; or that they shall not bring with them, free of duty, wearing apparel, not worn, bought in good faith for personal use in the immediately coming season, and not unsuitable in quantity or quality or value. 'Persons arriving in the United States' are citizens returning or foreigners visiting or emigrating. The statute applies to all equally. If, as the result of our construction of the law, it shall happen that citizens returning from abroad may obtain, as to their personal wardrobes, a pecuniary advantage over citizens who remain at home, that is but an incidental advantage attendant on the opportunity to go abroad. If foreigners visiting or emigrating are not compelled to pay duties on their unworn wearing apparel, it is merely exempting them from a tax the imposing of which has a tendency to induce them to remain abroad. The words in 'actual use' require no such construction, and, under the guarded rule we have laid down, the government will, on the one hand, not lose any revenue which the statute intends to give it and does give it, and persons arriving from abroad will be enabled to bring with them their usual and reasonable wearing apparel in actual use, without being required to have worn it before landing. $As appears by the record in this case, the treasury department, in heretofore making regulations for the conduct of the officers of the customs, as to the exemption of wearing apparel, promulgated the following, which were in force from 1857 to 1875: 'Such exemption of wearing apparel cannot be without limit as to the character and quantity of the articles which are to be admitted to free entry; and it is for the department or its officers to determine whether articles for which exemption is claimed are entitled thereto under a reasonable construction of the law. The rule by which the department usually determines the dutiable or free character of wearing apparel in such cases is as follows: (1) Did the owner visit the foreign country for the purpose or with the direct intention of purchasing the article or articles? (2) Were the articles intended for the sole use of the person purchasing the same? (3) Was such purchase actually necessary for the health or comfort of the person or persons purchasing the same? These questions must be answered under oath.' On the twenty-third of February, 1875, as we learn from public documents, other regulations were prescribed, which were in force at the time of the present transaction, as follows: 'So far as wearing apparel is concerned, only those articles which have been in actual use are exempted from duty, although in many cases this exemption has been applied to all articles of wearing apparel belonging to and contained in the baggage of the owner, whether new or old. New articles of clothing, which have not been in actual use abroad, and not necessary for the present confort or convenience of the owner, are chargeable with duty; and the fact that they are intended for the future use of the person who brings them, or of another person, and are not for sale, does not exempt them from duty.' It is doubtless impossible, under the statute, to formulate a general rule which will apply to every case. The law must have a reasonable construction in reference to cases as they arise.

The judgment of the circuit court is reversed, and the case is remanded to that court, with direction to award a new trial.

title: Astor v. Merritt/Opinion of the Court


text: Talk:Astor v. Merritt/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Burley v. German-American Bank

L. H. Bisbee, John S. Polk, and Henry Decker, for plaintiff in error.

Edward Salomon, for defendant in error.

BLATCHFORD, J.

title: Burley v. German-American Bank


text: Talk:Burley v. German-American Bank

title: Talk:Burley v. German-American Bank


text:
Burley v. German-American Bank/Opinion of the Court

This is suit brought in a court of the state of New York in June, 1877, and removed by the defendant into the circuit court of the United States for the Southern district of New York, after answer. The plaintiff is the receiver of the Cook County National Bank, of Chicago, Illinois, and the defendant is a corporation of New York. The complaint alleges that on the twentieth of February, 1875, the defendant held three promissory notes, maturing on that day, for $10,000 each, made by the Charter Oak Life Insurance Company, as collateral security for a loan of $25,000; that the notes were paid to the defendant at maturity, and there was a surplus, beyond what was due to it on the loan, of $5,000; that the notes were at the time the property of the plaintiff, as receiver; that the defendant received notice of such ownership prior to the payment; and that the plaintiff is entitled to a judgment for such surplus, with interest. The answer avers that on October 20, 1874, one Bowen borrowed of the defendant $25,000, and delivered the three notes to it as collateral security; that they were negotiable and not due, and were duly transferred by Bowen to the defendant, he then having the legal title to them, and then claiming, and the defendant believing him, to be their owner; that the notes were paid February 20, 1875, when due, and the proceeds were applied to pay the loan, leaving in the hands of the defendant a surplus, due to Bowen; that on April 14th following, the defendant, then believing, with good reason, that that surplus belonged to Bowen, applied it, on his direction, towards paying other notes then held by the defendant, indorsed by Bowen, which notes it gave up, on such payment. The answer then says: 'Except as hereinbefore stated stated or admitted, these defendants, on information and belief, deny each and every allegation in the said complaint contained.' The answer then sets up, as a second defense, that in August, 1871, Bowen agreed in writing with the defendant that all securities which he might thereafter deposit with it should be regarded as security for any money it might loan to him; that, when the three notes were so deposited, the agreement was a continuing one, under which it received and held the notes as security, not only for the loan of $25,000, but for indebtedness which thereafter arose from Bowen to it, as indorser on notes, and existed on February 20, 1875, to a larger amount than said surplus; that, on the direction of Bowen, it applied that surplus towards paying the last-mentioned liability of Bowen; and that at all times it believed, with good reason, and without notice to the contrary from the plaintiff, that the three notes were the property of Bowen, and that he had good right to dispose of them and of their proceeds. The answer then says. 'And, as a part of this second and separate defense, these defendants, on information and belief, reiterate their denials, hereinbefore contained, of each and every allegation in said complaint not herein stated or admitted.' The case was tried by a jury, which found a verdict for the defendant, on which there was a judgment accordingly, and the plaintiff has brought a writ of error.

The proof at the trial showed that the surplus was applied on a note made by one Benjamin F. Allen and indorsed by Bowen. Bowen was a director in the Cook County Bank, and its agent, and the agent of Allen in New York, and also a director in the defendant bank. Allen was president of the Cook County Bank, and, with one Stephens and one Blennerhasset, composed the firm of Allen, Stephens & Co., of New York. He was also a private banker in Iowa. In October, 1874, Allen, Stephens & Co. had the three notes, which they had received from the makers in part payment of a debt. They put the notes into the hands of Bowen, and he pledged them to the defendant as a security for a loan of $25,000, and placed the proceeds of the loan to the credit of the Cook County Bank, in a bank in New York city. On the day the three notes matured, and before they were paid, Allen, Stephens & Co. notified the defendant that Bowen never owned the notes, and that the surplus, after paying the loan, should be credited to the Cook County Bank. The plaintiff had been appointed receiver of that bank of February 1, 1875. The main question in dispute at the trial was as to whether the notes belonged to the Cook County Bank, having been advanced by Allen, Stephens & Co. to that bank, and delivered to Bowen to raise money on; or whether they belonged to Allen individually, and the proceeds of the loan were placed to the credit of the Cook County Bank, in accordance with a custom of Bowen to place to the credit of that bank all moneys belonging to Allen individually. The case went to the jury on the single question of fact as to whether the three notes belonged to the Cook County Bank or to Allen individually. There was no exception to the charge of the court, but the plaintiff took exceptions to the admission of evidence.

In the course of the trial the defendant offered evidence to show that Allen owned the notes. The plaintiff objected to such evidence, on the ground that, under the answer, the defendant could only prove that Bowen owned them. The defendant contended that, under the general denial in the answer, it could prove ownership of the notes in Allen or in any one else, because the answer raised the issue of title in the plaintiff. The court admitted the evidence and the plaintiff excepted. The admissibility of the evidence must be tested by the rules established in the courts of the state of New York. The Code of Civil Procedure of New York (§ 500) provides as follows: 'The answer of the defendant must contain (1) a general or specific denial of each material allegation of the complaint, controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; (2) a statement of any new matter constituting a defense or counter-claim, in ordinary and concise language, without repetition.' The contention on the part of the plaintiff is that if an answer alleges new facts as an affirmative defense, it must be a confession and avoidance, and it cannot at the same time be a denial; that this answer does not deny generally the material facts set forth in the complaint, nor state matters that are property in confession and avoidance; that a general denial would have raised an issue of fact as to title; that this answer is not a general denial of title in the Cook County Bank; that a denial, general or special, cannot contain any affirmative allegation of facts, as a defense, by way of confession and avoidance; that, although the answer was to be accepted at the trial at its value, it amounted, at most, to a special traverse of the allegation of title in the Cook County Bank; and that the testimony of the defendant should have been restrained within the limits of the allegations in such special traverse. The counsel for the plaintiff is mistaken in treating the two branches of section 500 as in the alternative. A defendant is not limited to the one or the other. He may in his answer embody both a denial, general or special, and a statement of new matter constituting a defense. Such is the express language of the statute.

The complaint in this case avers that the three notes were, at the date when they were paid, the property of the plaintiff. This was a fact which, on a general denial, it was necessary for the plaintiff. This was a fact which, does not aver that Bowen owned the notes, but only that he borrowed the money and transferred the notes to the defendant, he then having the legal title to them, and claiming, and the defendant believing him, to be the owner; and that the defendant received the surplus money, and, believing it to belong to Bowen, applied it in the manner stated. There is no statement of ownership in Bowen, or in any other person, at any time, and no admission of ownership in the plaintiff when the notes were paid, which is the only allegation as to ownership in the complaint. Therefore, when the answer then goes on to deny each and every allegation in the complaint except as before in the answer stated or admitted, it necessarily denies the allegation of the complaint as to ownership in the plaintiff. The same thing is true as to the averments in the second defense. They conclude by saying, not that at all times Bowen was the owner, but that the defendant at all times believed him to be the owner; and then a like denial is made as to the second defense. There was no ambiguity about this, and there could be no doubt or surprise. The averment of the complaint as to the plaintiff's ownership was thereby denied, the issue as to that was made, and the defendant had a right to prove anything which went to contradict such ownership, by showing ownership in Bowen or Allen, or any one else.

It is provided by section 519 of the Code of Civil Procedure that the allegations of a pleading must be liberally construed, with a view to substantial justice between the parties; and section 546 provides that where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment. The remedy is by motion (People v. Ryder, 12 N. Y. 433;) and it must be made before trial, in a case like the present, where the objection is that a denial is indefinite or uncertain, and the remedy is not by excluding evidence at the trial. Greenfield v. ''Mass. Mut. L. I. Co.'' 47 N. Y. 430, 437.

But it is well settled in New York that a denial in the form here in question is proper. The form is that every allegation is denied 'except as hereinbefore stated or admitted.' In Youngs v. Kent, 46 N. Y. 672, material allegations in a complaint, which, if controverted, presented an issue of fact for trial, were not expressly admitted, and were not alluded to in the statement of special facts alleged in the answer, and it was held that they were to be regarded as controverted under a denial of each and every allegation of the complaint not 'herein admitted or stated.' In Allis v. Leonard, 46 N. Y. 688, (fully reported in 22 Alb. Law J. 28,) the same principle was applied to an answer which admitted certain allegations in a complaint and denied all except those expressly admitted. We regard it as the rule in New York that a denial, such as is found in the answer in this case, in connection with the rest of the answer, is a sufficient denial to raise an issue as to the plaintiff's ownership of the notes, and to warrant evidence to show any other ownership. Under such a denial a defendant has a right to prove anything that will show the allegation covered by the denial to be untrue. Wheeler v. Billings, 38 N. Y. 263; Hier v. Grant, 47 N. Y. 278; Greenfield v. ''Mass. F. I. Co.'' Id. 430, 437; Weaver v. Barden, 49 N. Y. 286.

The plaintiff also objects that certain testimony brought out on the cross-examination of the witness Blennerhasset was not responsive to anything elicited on his direct examination. But no objection was taken at the trial on that ground. The objection taken was that the testimony was irrelevant, meaning that it was not admissible under the answer, because it tended to prove that Allen owned the notes.

Under the objection of the defendant, the court, at the trial, excluded entries made in the books of the Cook County Bank in June, after the plaintiff was appointed receiver, and after the notes were paid, and after the surplus was appropriated. The exclusion of these entries was proper. The rights of the defendant could not be varied by entries thus made, because they were not contemporaneous entries, made in the due course of the business, as a part of the res gestoe, but were made by one of the parties after the rights of the other party had become fixed.

There is but one more point for consideration. The plaintiff introduced in evidence a deposition of Allen, taken in February, 1879, to the effect that he, for himself individually, had procured Bowen to obtain the loan from the defendant, and that he used the money, although he did not provide the collaterals, and that he gave no instructions to transfer the three notes or their proceeds to any other account. The plaintiff also put in a second deposition of Allen, taken in December, 1879, in which he stated that the three notes belonged to the Cook County Bank when the loan was obtained; that it was obtained for the use of that bank; that he was mistaken in his first deposition, because he had not then carefully considered the matter, and was without books and papers to refresh his memory; that the proceeds of the loan went to the credit and benefit of the Cook County Bank; that the surplus of the notes belonged to that bank; and that the reason he believed so was that he never used or attempted to use the surplus, and never gave any direction for its application to any purpose. Afterwards, Bowen, on his examination, was asked by the defendant to state whether Allen gave him any direction as to the use of such surplus. The plaintiff objected generally to the evidence, and the court allowed it as competent in contradiction of the testimony of Allen on the subject. Bowen then testified that Allen told him to appropriate the surplus on the note of Allen, indorsed by Bowen, on which it was applied. It is plain that this evidence was competent. It was not offered in impeachment of Allen, as going to show that on some occasion he had told Bowen that he had given instructions to appropriate the surplus of the notes. In such a case it would have been necessary to ask Allen in advance whether he had not told Bowen that he had given such instructions, in order to direct his attention to the specific person to whom it was alleged that he had made a statement that he had given such instructions, when he was now testifying that he had not given such instructions. But the evidence offered was not of that character. The issue on trial was whether the notes belonged to Allen or the Cook County Bank. To prove they did not belong to Allen, the plaintiff had procured Allen to testify that the reason he believed that the surplus of the notes belonged to the Cook County Bank was because he had never given any directions to apply the surplus to any purpose. The answer stated that the defendant had applied the surplus by direction of Bowen. Then, when Bowen was afterwards examined by the defendant to show that Allen owned the three notes, he testified that Allen told him to apply the surplus on a note of his, indorsed by Bowen, which the defendant had. This was direct proof on a direct issue in the case, not proof on a collateral matter.

The judgment of the circuit court is affirmed.


text: Talk:Burley v. German-American Bank/Opinion of the Court


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Drury v. Hayden

This is an appeal from a decree in equity, in favor of the holder of promissory notes secured by a mortgage of land in Chicago, for the payment by the appellant personally of the sum due on those notes. The material facts appearing by the pleadings and proofs are as follows: On July 28, 1875, Solomon Snow, owning the land, made two mortgages thereof, in the form of trust deeds, with power of sale in case of default in payment of the principal or interest of certain promissory notes of the same date, made by him to Joseph E. Loockwood; the first mortgage to Edwin C. Larned, as trustee, to secure the payment of a note for $28,000, payable in five years, and the second mortgage to Roswell B. Bacon, as trustee, to secure the payment of two notes for $6,000 each, payable in two and three years, respectively; and on December 14, 1875, conveyed the land by warranty deed to William C. Snow, subject to the two mortgages, which the latter assumed and agreed to pay and save him harmless from. On January 28, 1876, William C. Snow conveyed the land by warranty deed to Isaac M. Daggett, subject to the two mortgages, but without any stipulation that Daggett should assume and pay them. On April 12, 1876, Daggett conveyed the land by warranty deed to William Drury, subject to the two mortgages, 'both of which said incumbrances the party of the second part herein assumes and agrees to pay.' Each of the mortgages and deeds was duly recorded within a few days after its date. Drury, after receiving the conveyance to him, paid interest accruing on the notes secured by each mortgage. The testimony of Daggett, of Drury, and of the broker who negotiated the sale between them, conclusively shows that the clause in this last deed, by which Daggett agreed to assume and pay the incumbrances, was inserted by mistake of the scrivener, without the knowledge and contrary to the intention and agreement of the parties. On July 12, 1877, as soon as the mistake was discovered, Daggett executed a deed of release to Drury, reciting the mistake, and therefore releasing him from all liability, demand, or right of action arising from or out of that agreement. This release was recorded on July 18, 1877. About November 1, 1876, Annie E. Hayden, the appellee, purchased from Lockwood, for a valuable consideration, the two notes held by him and secured by the second mortgage. But she did not allege, or offer any evidence tending to prove, that at the time of purchasing the notes she knew of or relied upon the clause in the deed of April 12, 1876. Her original bill in this case was filed on January 26, 1878, against the mortgagor, the trustees named in each mortgage, and the successive purchasers of the equity of redemption, for a forclosure of the second mortgage and a sale of the land, by reason of default in the payment of interest on her notes, and for a personal decree against Drury for the amount of any deficiency, in the proceeds of the sale, to pay her debt. After answer and replication, the case was referred to a master, who, on February 6, 1880, reported that the sum due to her was $15,194.21. It was alleged in a supplemental bill filed on February 13, 1880, and was admitted in the answer thereto, that pending this suit the holder of the first mortgage had filed a bill and obtained a decree of foreclosure, under which the land had been sold and conveyed to the purchaser, and that the mortgagor was insolvent. The circuit court entered a final decree, in accordance with the prayer of Hayden's supplemental bill, for the payment by Drury of the sum reported by the master. See Hayden v. Snow, 9 Biss. 511; S.C.. 14 Fed. Rep. 70. From that decree this appeal is taken.

U. P. Smith and J. M. H. Burgett, for appellant.

''Wm. R. Page and Roswell B. Bacon'', for appellee.

[Argument of Counsel from pages 225-226 intentionally omitted]

GRAY, J.

title: Drury v. Hayden


text: Talk:Drury v. Hayden

title: Talk:Drury v. Hayden


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Drury v. Hayden/Opinion of the Court

The case presented by the pleadings and proofs appears to us a plain one.

It is unnecessary, for the purpose of deciding it, to consider any of those questions, suggested at the argument, upon which there have been varying decisions in different states; such as whether an agreement of the grantee, in a deed-poll of land, to assume and pay an existing mortgage, is in the nature of an assumpsit, implied from the acceptance of the deed, or is in the nature of a covenant, being in an instrument sealed by the other party; whether a suit upon such an agreement must be brought by the grantor, from whom alone the consideration moves, or may be brought by the mortgagee, as a person to whose benefit the agreement inures; how far the mortgagee is entitled, by way of subrogation, to avail himself in equity of the rights of the grantor; and whether or not the mortgagee has any rights under such an agreement in a deed from one who is not himself personally liable to pay the mortgage debt.

The appellee, by her purchase of the notes secured by the second mortgage, doubtless acquired all the rights of the mortgagee. New Orleans Canal Co. v. Montgomery, 95 U.S. 16; Swift v. Smith, 102 U.S. 442. But having purchased in ignorance of the supposed agreement of Dury in the deed of conveyance from Daggett to him, and having done nothing upon the faith of that agreement, she has no greater right by estoppel against Drury than the mortgagee had. The mortgagee had no part in obtaining and paid no consideration for that agreement, and, upon the most favorable construction, had no greater right under it than Daggett, with whom it purported to have been made.

On the facts of this case, Daggett, in a court of equity at least, never had any right to enforce that agreement against Drury. The payment of interest on the mortgage notes would naturally be made by Drury to prevent a foreclosure of the mortgage on his land, and cannot be held to be an affirmance of an agreement of which he had no actual knowledge. The clause containing the agreement being conclusively proved to have been inserted in the deed by mistake of the scrivener, without the knowledge and against the intention of the parties, a court of equity, upon a bill filed by Drury for the purpose, would have decreed a reformation of the deed by striking out that clause. Elliott v. Sackett, 108 U.S. 133; S.C.. 2 SUP. CT. REP. 375. The release executed by Daggett to Drury has the same effect, and no more.

It follows that the appellee has no equity against the appellant, and the decree of the circuit court must be reversed, and the case remanded, with directions to dismiss the bill.

title: Drury v. Hayden/Opinion of the Court


text: Talk:Drury v. Hayden/Opinion of the Court


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Hayes v. Michigan Central Railroad Company

A. D. Rich, for plaintiff in error.

Ashley Pond, for defendant in error.

This action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions to that ruling embodies all the circumstances material to the case, and presents the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury.

The defendant, in running its trains into Chicago, used the tracks of the Illinois Central Railroad Company, under an arrangement between them; and no question is made but that the defendant is to be treated, for the purposes of this case, as the owner as well as occupier of the tracks. The tracks in question are situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore. They were built in fact, at first, in the water on piles; a breakwater constructed in the lake protecting them from winds and waves, and on the west or land side the space being filled in with earth, a width of about 280 feet, to Michigan avenue, running parallel with the railroad. This space between Michigan avenue and the railroad tracks is public ground, called Lake park, on the south end of which is Park row, a street perpendicular to Michigan avenue, and leading to and across the railroad tracks to be water's edge. Numerous streets, from Twelfth street north to Randolph street, intersect Michigan avenue at right angles, about 400 feet apart, and open upon the park, but do not cross it. Nothing divides Michigan avenue from the park, and the two together form one open space to the railroad. The right of way for these tracks was granted to the company by the city of Chicago over public grounds by an ordinance of the common council, dated June 14, 1852, the sixth section of which is as follows:

'Sec. 6. The said company shall erect and maintain on the western or inner line of the ground pointed out for its main track on the lake shore, as the same is hereinbefore defined, such suitable walls, fences, or other sufficient works as will prevent animals from straying upon or obstructing its tracks, and secure persons and property from danger; said structure to be of suitable materials and sightly appearance, and of such height as the common council may direct, and no change therein shall be made except by mutual consent: provided, however, that the company shall construct such suitable gates, at proper places at the ends of the streets which are now or may hereafter be laid out, as may be required by the common council, to afford safe access to the lake; and provided, also, that in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them.'

It was also provided in the ordinance that it should be accepted by the railroad company within 90 days from its passage, and that thereupon a contract under seal should be formally executed on both parts, embodying the provisions of the ordinance, and stipulating that the permission, rights, and privileges thereby conferred upon the company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28, 1853.

The work of filling in the open space between the railroad tracks and the natural shore line was done gradually,-more rapidly after the great fire of October 9, 1871, when the space was used for the deposit of the debris and ruins of buildings,-and the work was completed substantially in the winter of 1877-78. In the mean time several railroad tracks had been constructed by the railroad company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly. The railroad company had also partially filled with stones and earth the space east of its tracks, to the breakwater; sufficiently so in some places to enable people to get out to it. This they were accustomed to do for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets the public were also accustomed to cross over the tracks from the park to ferry-boats. From Park row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which, at the time of the injury to the plaintiff, was broken down. The rest of it was in good order. The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air concerts.

The plaintiff was a boy between eight and nine years of age, bright and well-grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played. On Sunday afternoon, March 17, 1878, St. Patrick's day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play. While playing there a procession celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, followed the procession to Michigen avenue at Twelfth street, just south of Lake park. He and his companions then rcturned north to the park, in which they stopped to play. A witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north; turning round towards it he saw the plaintiff on the tracks south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train, motioning as if he wanted the plaintiff to come along. The plaintiff started to run north beside the train, and as he did so turned and fell, one or more wheels of the car passing over his arm. There were four tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out towards the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draught of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit.

Mr. A.D. Rich, Mr. George C. Fry, and Mr. J. W. Merriam for plaintiff in error submitted on their brief.

[Argument of Counsel from pages 232-234 intentionally omitted]

MATTHEWS, J.


text: Talk:Hayes v. Michigan Central Railroad Company


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Hayes v. Michigan Central Railroad Company/Opinion of the Court

The question of contributory negligence does not appear to us to arise upon this record. It is not contended by the counsel for the defendant in error, that, if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that the plaintiff was not entitled to recover by reason of his own contributory negligence. The single question, therefore, for present decision is whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury. The particular negligence charged in the declaration and relied on in the argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it from Lake park; a duty, it is alleged, imposed upon it by the ordinance of June 14, 1852, a breach of which, resulting in his injury, confers on the plaintiff a right of action for damages. It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that, at common law, the question is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with such reasonable precautions for the safety of others, not in fault, as is required by the maxim, sic utere tuo, ut non alienum loedas; that, consequently, in circumstances where the public safety requires such a precaution as a fence to prevent danger from ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of ract for a jury whether the circumstances exist which create such a duty.

This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. 'These cases,' said the supreme court of Massachusetts, in Eaton v. Fitchburg R. Co. 129 Mass. 364, 'all rest on the common-law rule that when there are different public easements to be enjoyed by two parties, at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveler and the railroad each has common rights in the highway at those points. The fact that the legislature has seen fit, for the additional safety of travelers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary.' It was accordingly held in that case that the jury might properly consider whether, under all the circumstances, the defendant was guilty of negligence in not having a gate or a flag-man at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to establish such regulations. And the same principle has been applied in other cases than those of the actual coincidence at crossings of public highways. In Barnes v. Ward, 9 C. B. 392, it was decided, after much consideration, that the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road, and liable to an action for damages to one injured by reason thereof; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. This doctrine has always since been recognized in England. Hardcastle v. ''South Yorkshire Ry. Co.'' 4 Hurl. & N. 67; Hounsell v. Smyth, 7 C. B. (N. S.) 731; Binks v. ''South Yorkshire Ry. Co.'' 3 Best & S. 244. It has also been generally adopted in this country. Norwich v. Breed, 30 Conn. 535; Beck v. Carter, 68 N. Y. 283; Homan v. Stanley 66 Pa. St. 464; B. & O. R. Co. v. Boteler, 38 Md. 568; Stratton v. Staples, 59 Me. 94; Young v. Harvey, 16 Ind. 314; Coggswell v. ''Inhab. of Lexington'', 4 Cush. 307; although Howland v. Vincent, 10 Metc. 371, is an exception.

The enforcement of this rule in regard to excavations made by proprietors of lots adjacent to street and public grounds in cities and towns, in the prosecution of building enterprises, and in the construction of permanent areas for cellar-ways, is universally recognized as an obvious and salutary exercise of the common police powers of municipal government; and the omission to provide barriers and signals, prescribed by ordinance in such cases for the safety of individuals in the use of thoroughfares, is a failure of duty, charged with all the consequences of negligence, including that of liability for personal injuries, of which it is the responsible cause. The true test is, as said by HOAR, J., in Alger v. City of Lowell, 3 Allen, 402, 'not whether the dangerous place is outside of the way, or whether some small slip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveler, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.'

As the ground of liability in these cases is that of a public nuisance, causing special injury, the rule, of course, does not apply where the structure complained of on the defendant's property, and the mode of its use, are authorized by law; and, consequently, what has been said is not supposed to bear directly and strictly on the question in the present case, but rather as inducement, showing the ground of legislative authority implied in the ordinance, the breach of which is imputed to the defendant as negligence towards the plaintiff, and as serving to interpret the meaning and application of its provisions. The ordinance cannot, we think, be treated as a mere contract between the city, as proprietor of the land over which the right of way is granted, and the railroad company, to which no one else is privy, and under which no third person can derive immediately any private right, prescribing conditions of the grant, to be enforced only by the city itselt. Although it takes the form of a contract, provides for its acceptance, and contemplates a written agreement in execution of it, it is also and primarily a municipal regulation, and as such, being duly authorized by the legislative power of the state, has the force of law within the limits of the city. Mason v. Shawneetown, 77 Ill. 533. Neither can the ordinance be limited by construction to the mere purpose of preventing animals from straying upon or obstructing the railroad tracks; because, in addition to that, it expressly declares that the walls, fences, or other works required shall be suitable and sufficient to secure persons and property from danger. This cannot refer to persons and property in course of transportation and already in care of the railroad company as common carrier, for the duty to carry and deliver them safely was already and otherwise provided for by law; nor can it be supposed, from the nature of the case, that the stipulation was intended as security for any corporate interest of the city. The proviso in the sixth section, that the company shall construct such suitable gates at crossings, as thereafter might be required by the common council, to afford safe access to the lake, clearly designates the inhabitants of the city as at least within the scope of this foresight and care, the safety of whose persons and property was in contemplation.

The prevention of animals from straying upon the tracks, and the security of persons and property from danger, are two distinct objects, for both which the requirement is made of suitable walls, fences, or other protections; and the ordinance, in these two particulars, is to be referred to distinct legislative grants of power to the municipal body. The general act to provide for the incorporation of cities and villages, which constitutes the charter of the city of Chicago, confers upon its city council power: 'Twenty-sixth. To require railroad companies to fence their respective railroads, or any portion of the same, and to construct cattle-guards, crossings of streets, and public roads, and keep the same in repair within the limits of the corporation. In case any railroad company shall fail to comply with any such ordinance, it shall be liable for all damages the owner of any cattle or horses or other domestic animal may sustain, by reason of injuries thereto while on the track of such railroad, in like manner and extent as under the general laws of this state relative to the fencing of railroads.' Cothran's Rev. St. Ill. 1884, p. 227. By the general law of the state, requiring railroads to be fenced, except within the limits of municipal corporations, the company omitting performance of the duty is liable to the owner for all damages to animals, irrespective of the question of negligence. Id. p. 1151. Whether this provision is limited to the protection of animals, and covers only the case of damage done to them, or whether a failure to comply with the ordinance authorized thereby might be considered as evidence of negligence, in case of injury to person or property, in any other case, it is not necessary for us now to decide; for in the same section of the statute there is this additional power conferred upon the city council: 'Twenty-seventh. To require railroad companies to keep flag-men at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads,' etc. The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirement as in its discretion it may prescribe, and as are within the just limits of police regulations, the municipal authority may provide protection against injury to persons and property likely to arise from the use of railroads. And, as we have shown by reference to analogous cases, the erection of a barrier between the railroad tracks and the public highways and grounds, particularly such a resort as the Lake park is shown to be, in the present case, is a reasonable provision, clearly within the limits of such authority. To leave the space between the park and the breakwater, traversed by the numerous tracks of the railroad company, open and free, under the circumstances in proof, was a constant invitation to crowds of men, women, and children frequenting the park to push across the tracks at all points to the break water, for recreation and amusement, at the risk of being run down by constantly passing trains. A fence upon the line between them might have served, at least, as notice and signal of danger, if not as an obstacle and prevention. For young children, for whose health and recreation the park is presumably in part intended, and as irresponsible, in many cases, as the dumb cattle, for whom a fence is admitted to be some protection, such an impediment to straying might prove of value and importance. The object to be attained-the security of the persons of the people of the city-was, we think, clearly within the design of the statute and the ordinance; and the means required by the latter to be adopted by the railroad company was appropriate and legitimate. Mayor, etc., of New York v. Williams, 15 N. Y. 502.

It is said, however, that it does not follow that whenever a statutory duty is created, any person, who can show that he has sustained injuries from the non-performance of that duty, can maintain an action for damages against the person on whom the duty is imposed; and we are referred to the case of Atkinson v. Newcastle Water-works Co. 2 Exch. Div. 441, as authority for that proposition, qualifying as it does the broad doctrine stated by Lord CAMPBELL in Couch v. Steel, 3 El. & Bl. 402. But accepting the more limited doctrine admitted in the language of Lord CAIRNS in the case cited, that whether such an action can be maintained must depend on the 'purview of the legislature in the particular statute, and the language which they have there employed,' we think the right to sue, under the circumstances of the present case, clearly within its limits. In the analogous case of fences, required by the statute as a protection for animals, an action is given to the owners for the loss caused by the breach of the duty. And although in the case of injury to persons, by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence. The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery. 'The nature of the duty,' said Judge COOLEY in Taylor v. ''Lake Shore & M. S. Ry. Co.'' 45 Mich. 74, S.C.. 7 N. W. Rep. 728, 'and the benefits to be accomplished through its performance, must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit.' See, also, Railroad Co. v. Terhune, 50 Ill. 151; Schmidt v. ''Milwaukee & St. P. Ry. Co. 23 Wis. 186; Siemers v. Eisen, 54 Cal. 418; Galena & C. U. R. Co. v. Loomis'', 13 Ill. 548; O. & M. R. Co. v. McClelland, 25 Ill. 140; St. L., V. & T. H. R. Co. v. Dunn, 78 Ill. 197; Massoth v. Railroad, 64 N. Y. 524; B. & O. R. R. v. State, 29 Md. 252; Pollock v. Eastern R. R. 124 Mass. 158; Cooley, Torts, 657.

It is said, however, that, in the present case, the failure or omission to construct a fence or wall cannot be alleged as negligence against the company, because, as the structure was to be, as described in the ordinance, of suitable materials and sightly appearance, and of such height as the common council might direct, no duty could arise until after the council had directed the character of the work to be constructed, of which no proof was offered. But the obligation of the company was not conditioned on any previous directions to be given by the city council. It was absolute, to build a suitable wall, fence, or other sufficient work as would prevent animals from straying UPON THE TRACKS, AND SECURE PERSONS AND Property from danger. the right of the council was to give specific directions it is saw proper, and to supervise the work when done, if necessary; but it was matter of discretion, and they were not required to act in the first instance, nor at all, if they were satisfied with the work as executed by the railroad company. Tallman v. Syracuse, B. & N. Y. R. Co. 4 Keyes, 128; Brooklyn v. Brooklyn City R. Co. 47 N. Y. 475.

It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non,-a cause which, if it had not existed, the injury would not have taken place,-an occasional cause; and that is a question of fact, unless the causal connection is evidently not proximate. Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469. The rule laid down by WILLES, J., in Daniel v. ''Metropolitan Ry. Co. L. R. 3 C. P. 216, 222, and approved by the exchequer chamber, (L. R. 3 C. P. 591,) and by the house of lords, (L. R. 5 H. L. 45,) was this: 'It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to;' and in the case of Williams v. Great Western Ry. Co.''. L. R. 9 Exch. 157, where that rule was applied to a case similar to the present, it was said, (page 162:) 'There are many supposable circumstances under which the accident may have happened, and which would connect the accident with the neglect. If the child was merely wandering about, and he had met with a stile, he would probably have been turned back; and one, at least, of the objects for which a gate or stile is required, is to warn people of what is before them, and to make them pause before reaching a dangerous place like a railroad.'

The evidence of the circumstances, showing negligence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff, according to the rule established in Railroad Co. v. Stout, 17 Wall. 657, and Randall v. B. & O. R. Co. 109 U.S. 478, S.C.. 3 SUP. CT. REP. 322, should have been submitted to the jury; and for the error of the circuit court in directing a verdict for the defendant, the judgment is reversed and a new trial awarded.


text: Talk:Hayes v. Michigan Central Railroad Company/Opinion of the Court


text:
Teal v. Walker

This was an action at law brought by Walker, the defendant in error, gainst Teal, the plaintiff in error. The record disclosed the following facts:

On August 19, 1874, Bernard Goldsmith borrowed of James D. Walker the sum of $100,000, and gave to the latter his note, dated Portland, Oregon, August 19, 1874, for the payment to Walker or his order, two years after date, of the sum borrowed, with interest payable monthly at the rate of 1 per cent. per month from date until paid. Goldsmith, at the time the note was executed, was the owner in fee of certain lands in the state of Oregon and in the territory of Washington, and he and Joseph Teal were the joint owners and tenants in common of certain other lands in Oregon. On August 19,, Goldsmith conveyed to one Henry Hewett, by four several deeds, absolute on their face, the lands in Oregon and in Washington territory of which he was the sole owner, and on the same day he and Teal executed and delivered, to the same grantee, three several deeds, absolute on their face, for the lands which they jointly owned as tenants in common, one being for lands in Linn county, another for contiguous lands in Polk and Benton counties, and the third for lands in Clackamas county, all in the state of Oregon. These deeds were intended as a secuirty for the above-mentioned note, as appeared by a defeasauce in writing, executed on the same day as the note by Goldsmith, Teal, Hewett, and Walker. This instrument, after reciting the execution of the note above mentioned, declared that Hewett held the legal title to the lands conveyed to him as aforesaid, in trust and for the uses therein described. It then declared as follows: "Subject to the legal title of Hewett, Teal and Goldsmith, or Goldsmith alone, shall (1) retain possession of the lands, and take and have, without account, the issues and profits thereof-they paying all taxes and public charges imposed thereon-until said note should become due and remain unpaid thirty days; (2) that if such default is made in the payment of said note, Goldsmith and Teal 'will and shall, on demand, peacefully surrender to Hewett' the possession of said property, who 'may and shall proceed and take possession' of the same, 'and on thirty days' notice in writing to Teal and Goldsmith, * * * requiring them to pay said debt, * * * and on their failure so to pay, shall sell the same at public auction on not more than thirty days' notice,' or sufficient thereof to pay the debt and charges." The instrument further declared "that if the above-recited promissory note, and the interest thereon, and all the taxes, charges, and assessments on said land be duly paid by said Goldsmith, or for him, then the deeds aforesaid shall be void, and said Hewett, or his representatives or successors in trust, shall reconvey all said lands, and every part thereof, to said Teal and Goldsmith, or said Goldsmith, or their representatives entitled thereto."

On October 18, 1876, there was due and unpaid upon the note made by and delivered by Goldsmith to Walker the sum of $96,750. To secure an extension of time of one year from that date for the payment of the note, Goldsmith and Teal agreed to give further security for its payment. Thereupon, Goldsmith conveyed, by a deed absolute on its face, to Hewett certain lots in the city of Portland, of which he was the owner, and Goldsmith and Teal, by a like deed, conveyed to Hewett certain other lots in Portland and certain lands in Linn county, Oregon, of which they were joint owners and tenants in common. On the same day, October 18, 1876, Walker, Hewett, Goldsmith, and Teal executed another defeasance, in which, after reciting the conveyances by Goldsmith and Goldsmith and Teal, above mentioned, declared that Hewett held the legal title to lands so conveyed in trust and to the same uses and purposes for which he held the lands mentioned in the defeasance of August 19, 1874. By this instrument Goldsmith and Teal undertook and agreed that Goldsmith should pay promptly promptly one-twelfth of 10 per cent. per annum of the interest of the note every month, and should pay the principal and the residue of the interest at the end of the year. It was further stipulated between the parties that if default was made in the payment of the monthly installments of interest, the principal should immediately become due, and all the property, both that conveyed August 19, 1874, and that conveyed October 18, 1876, should be sold for the payment thereof, as by law and the agreement of August 19, 1874, was provided. The instrument of October 18, 1876, further provided as follows: 'The agreement of August 19, 1874, is not annulled, vacated, or set aside by the execution of this agreement, excepting in so far as the same may conflict with this agreement; in all other respects the two instruments are to be taken and construed together.'

Interest was paid on the note made by Goldsmith to the plaintiff up to January 21, 1877, but none after that date. In April, 1877, Goldsmith conveyed to Teal all his estate in the lands which he had conveyed in trust to Hewett, by the deeds of August 19, 1874, and October 18, 1878, and put Teal in possession thereof. On July 6, 1877, the interest on the note being in arrear since January 21st preceding, Hewett demanded of Teal the possession of all the property conveyed by said deeds. He refused to yield possession, and held the lots in the city of Portland until November 30, 1878, and the farm lands until some time in the same month and year. Walker, by reason of Hewett's refusal to surrender possession of the property conveyed in trust to Hewett, was compelled to and did bring suit to enforce the sale of the property. All the property was sold, either in accordance with the terms of the defeasances above mentioned, or by order of court, and the proceeds of the sale fell far short of paying the note, leaving a balance due thereon of more than $50,000, which Goldsmith had no means to pay. This action was brought by Walker, the payee of the note, against Teal, to recover the damages which he claimed he had sustained by the refusal of Teal to surrender possession of the property of which Goldsmith had been the owner, or which he had owned jointly with Teal, and which had been conveyed to Hewett in trust as aforesaid. The complaint recited the facts above stated, and averred that by reason of the refusal of Teal to surrender possession of the property to Hewett, Walker had been damaged in the sum of $16,000, for which sum the complainants demanded judgment. Teal filed a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, with leave to Teal to answer. He answered, and, among other things, denied that Walker had been damaged, by the refusal of Teal to deliver possession of the property, in the sum of $16,000, or any other sum. The case, having been put at issue by the filing of a replication, was tried by a jury, which returned a verdict for the plaintiff for $5,345.88, on which the court rendered judgment. To reverse that judgment Teal prosecuted this writ of error.

John H. Mitchell, for plaintiff in error.

A. H. Garland, for defendant in error.

WOODS, J.

title: Teal v. Walker


text: Talk:Teal v. Walker

title: Talk:Teal v. Walker


text:
Teal v. Walker/Opinion of the Court

The writ of error is not taken to reverse the judgment of the court upon the demurrer to the complaint, for that was not a final judgment, but to reverse the judgment rendered upon the verdict of the jury. The error, if it be an error, of overruling the demurrer could have been reviewed on motion in arrest of judgment, and is open to review upon this writ of error. When the declaration fails to state a cause of action, and clearly shows that upon the case as stated the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial, without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. The error is not waived by answer, nor is it cured by verdict. The question, therefore, whether the complaint in this case states facts sufficient to constitute a cause of action, is open for consideration.

The plaintiff in error insists that Goldsmith, having conveyed to him all his estate in the lands described in the deed to Hewett, the latter cannot recover of him damages,-that is to say the rents and profits,-because he refused to deliver to him the premises. We are of the opinion that this contention is well founded, and that neither Goldsmith nor the plaintiff in error was liable to account to Hewett or Walker for the rents and profits of the premises. A deed absolute upon its face, but intended as a security for the payment of money, is a mortgage even at law, if accompanied by a separate contemporaneous agreement in writing to reconvey upon the payment of the debt. Nugent v. Riley, 1 Metc. 117; Wilson v. Shoenberger's Exr's, 31 Pa. St. 295; Dore v Chamberlin, 5 McLean, 281; Bayley v. Bailey, 5 Gray, 505; Lane v. Shears, 1 Wend. 433; Friedley v. Hamilton, 17 Serg. & R. 70; Shaw v. Erskine, 43 Me. 371.

It is clear, upon these authorities, that the three deeds executed by Goldsmith and Teal jointly, and the several deeds executed by Goldsmith alone, to Hewett, on August 19, 1874, and the defeasance executed on that day by Hewett and Walker, are to be construed together, and so construed they constitute a mortgage given to secure a debt. The lands owned by Goldsmith were conveyed by several deeds, evidently for convenience in registration, as the lands lay in several counties of Oregon, and some of them in the territory of Washington. The lands owned by Goldsmith and Teal jointly also lay in several counties, and were conveyed by separate deeds for the same reason. The execution of all the deeds, and the execution of the defeasance which applied to all the deeds, occurred on the same day, and was clearly one transaction, the object of which was to secure the note for $100,000 made and delivered by Goldsmith to Walker. The same remarks apply to the second set of deeds executed by Goldsmith and Goldsmith and Teal, on October 18, 1876, and the defeasance executed by Hewett and Walker on the same day. In fact, all the deeds and the two defeasances might, without violence, be regarded in equity as two mortgages executed at different times, with one and the same defeasance; for the defeasance last executed provides that it shall not have the effect to annul, vacate, or set aside the first, except in so far as the two conflict; in all other respects the two were to be taken and construed together. We are, therefore, to apply the same rules to the questions arising in this case as if we had to deal with mortgages executed in the ordinary form.

The decision of the question raised by the demurrer to the complaint is not affected by the stipulation contained in the defeasance of August 19, 1874, that Goldsmith and Teal should, on default made in the payment of the principal of Goldsmith's note, and on the demand of Hewett, surrender the mortgaged premises to him. If this was a valid and binding undertaking, it did not change the rights of the parties. Without any such stipulation, Hewett, unless it was otherwise provided by statute, was entitled, at least, on default in the payment of the note of Goldsmith, to the possession of the mortgaged premises. Keech v. Hall, 1 Doug. 21; Rockwell v. Bradley, 2 Conn. 1; Smith v. Johns, 3 Gray, 517; Jackson v. Dubois, 4 Johns. 216; Furbush v. Goodwin, 29 N. H. 321; Howard v. Houghton, 64 Me. 445; ''Den ex dem. Hart v. Stockton'', 7 Halst. 322; Ely's Lessee v. McGuire, 2 Ohio, 223, vols. 1 and 2, (2d Ed.) 372. The rights of the parties are therefore the same as if the defeasance contained no contract for the delivery of the possession. We believe that the rule is, without exception, that the mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession. In the case of Moss v. Gallimore, 1 Doug. 279, Lord MANSFIELD held that a mortgagee, after giving notice of his mortgage to a tenant in possession holding under a lease older than the mortgage, is entitled to the rent in arrear at the time of the notice as well as to that which accrues afterwards. This ruling has been justified on the ground that the mortgagor, having conveyed his estate to the mortgagee, the tenants of the former became the tenants of the latter, which enabled him, by giving notice to them of his mortgage, to place himself, to every intent, in the same situation towards them as the mortgagor previously occupied. Rawson v. Eicke, 7 Adol. & E. 451; Burrowes v. Gradin, 1 Dowl. & L. 213. Where, however, the lease is subsequent to the mortgage, the rule is well settled in this country that, as no reversion vests in the mortgagee, and no privity of estate or contract is created between him and the lessee, he cannot proceed, either by distress or action, for the recovery of the rent. Mayo v. Shattuck, 14 Pick. 533; Watts v. Coffin, 11 Johns. 495; McKircher, v. Hawley, 16 Johns. 289; Sanderson v. Price, 1 Zabr. 637; Price v. Smith, 1 Green, Ch. (N. J.) 516.

The case of Moss v. Gallimore has never been held to apply to a mortgagor or the vendee of his equity of redemption. Lord MANSFIELD himself, in the case of Chinnery v. Blackman, 3 Doug. 391, held that until the mortgagee takes possession the mortgagor is owner to all the world, and is entitled to all the profits made. The rule on this subject is thus stated in Bac. Abr. tit. 'Mortgage,' C: 'Although the mortgagee may assume possession by ejectment at his pleasure, and, according to the case of Moss v. Gallimore, Doug. 279, may give notice to the tenants to pay him the rent due at the time of the notice, yet, if he suffers the mortgagor to remain in possession or in receipt of the rents, it is a privilege belonging to his estate that he cannot be called upon to account for the rents and profits to the mortgagee, even although the security be insufficient.'

So, in Higgins v. York Buildings Co. 2 Atk. 107, it was said by Lord HARDWICKE: 'In case of a mortgagee, where a mortgagor is left in possession, upon a bill brought by the mortgagee for an account in this court, he never can have a decree for an account of rents and profits from the mortgagor for any of the years back during the possession of the mortgagor;' and the same judge said in the case of Mead v. Lord Orrery, 3 Atk. 244: 'As to the mortgagor, I do not know of any instance where he keeps in possession that he is liable to account for the rents and profits to the mortgagee, for the mortgagee ought to take the legal remedies to get into possession.'

In Ex parte Wilson, 2 Ves. & B. 252, Lord ELDON said: 'Admitting the decision in Moss v. Gallimore to be sound law, I have been often surprised by the statement that a mortgagor was receiving the rents for the mortgagee. * *  * In the instance of a bill filed to put a term out of the way, which may be represented as in the nature of an equitable ejectment, the court will, that a mortgagee has, per directum, rents. There is not an instance that a motgagee has, per directum, called upon the mortgagor to account for the rents. The consequence is that the mortgagor does not receive the rents for the mortgagee.' See, also, Colman v. Duke of St. Albans, 3 Ves. Jr. 25; Gresley v. Adderley, 1 Swanst. 573.

The American cases sustain the rule that so long as the mortgagor is allowed to remain in possession he is entitled to receive and apply to his own use the income and profits of the mortgaged estate; and, although the mortgagee may have the right to take possession upon condition broken, if he does not exercise the right he cannot claim the rents. If he wishes to receive the rents, he must take means to obtain the possession. Wilder v. Houghton, 1 Pick. 87; Boston Bank v. Reed, 8 Pick. 459; Noyes v. Rich, 52 Me. 115.

In Hughes v. Edwards, 9 Wheat. 500, it was held that a mortgagor was not accountable to the mortgagee for the rents and profits received by him during his possession, even after default, and even though the land, when sold, should be insufficient to pay the debt, and that the purchaser of the equity of redemption was not accountable for any part of the debt beyond the amount for which the land was sold.

In the case of Gilman v. Illinois & M. Tel. Co. 91 U.S. 603, it was declared by this court that where a railroad company executed a mortgage to trustees on its property and franchises, 'together with the tolls, rents, and profits to be had, gained, or levied thereupon,' to secure the payment of bonds issued by it, the trustees, in behalf of the creditors, were not entitled to the tolls and profits of the road, even after condition broken and the filing of a bill to foreclose the mortgage, they not having taken possession or had a receiver appointed. The court said, in delivering judgment in this case: 'A mortgagor of real estate is not liable for rent while in possession. He contracts to pay interest, not rent.'

So in Kountze v. Omaha Hotel Co. 107 U.S. 378, S.C.. 2 SUP. CT. REP. 911, IT WAS SAID BY THE COURT, SPEAKING OF THE rights of a mortgagee: 'but in the case of a mortgage, the land is in the nature of a pledge; it is only the land itself, the specific thing, which is pleged. The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or third person claims under him. * *  * The plaintiff in this case was not entitled to the possession, nor the rents and profits.' See, also, Hutchins v. King, 1 Wall. 53, 57, 58.

Chancellor KENT states the modern doctrine in the following language: 'The mortgagor has a right to lease, sell, and in every respect to deal with the mortgaged premises as owner so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for rents; and the mortgagee must recover the possession by regular entry by suit before he can treat the mortgagor, or the person holding under him, as a trespasser.' 4 Kent, Comm. 157. See, also, American Bridge Co. v. Heidelbach, 94 U.S. 798; Clarke v. Curtis, 1 Grat. 289; Bank of Ogdensburgh v. Arnold, 5 Paige, Ch. 38; Hunter v. Hays, 7 Biss. 362; Souter v. La Crosse Ry. Woolw. C. C. 80, 85; Foster v. Rhodes, 10 Bankr. Reg. 523.

The authorities cited show that, as the defendant in error took no effectual steps to gain possession of the mortgaged premises, he is not entitled to the rents and profits while they were occupied by the owner of the equity of redemption.

The case against the right of the defendant in error to recover in this case the rents and profits received by the owner of the equity of redemption is strengthened by section 323, c. 4, tit. 1, Gen. Laws Or. 1843-1872, which declares that 'a mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law. This provision of the statute cuts up by the roots the doctrine of Moss v. Gallimore, ubi supra, and gives effect to the view of the American courts of equity that a mortgage is a mere security for a debt, and establishes absolutely the rule that the mortgagee is not entitled to the rents and profits until he gets possession under a decree of foreclosure. For if a mortgage is not a conveyance, and the mortgagee is not entitled to possession, his claim to the rents is without support. This is recognized by the supreme court of Oregon as the effect of a mortgage in that state. In Besser v. Hawthorn, 3 Or. 129, 133, it was declared: 'Our system has so changed this class of contracts that the mortgagor retains the right of possession and the legal title.' See, also, Anderson v. Baxter, 4 Or. 105; Roberts v. Sutherlin, Id. 219.

The case of the defendant in error cannot be aided by the stipulation in the defeasance of August 19, 1874, exacted by the mortgagee, that Goldsmith and Teal would, upon default in the payment of the note secured by the mortgage. deliver to Hewett, the trustee, the posession of the mortgaged premises. That contract was contrary to the public policy of the state of Oregon, as expressed in the statute just cited, and was not binding on the mortgagor or his vendee, and, although not expressly prohibited by law, yet, like all contracts opposed to the public policy of the state, it cannot be enforced. Railroad Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Exp. Co. 93 U.S. 174; Marshall v. Baltimore & O. R. Co. 16 How. 314; Meguire v. Corwine, 101 U.S. 108.

In any view of the case, we are of opinion that the defendant in error was not entitled to receive the rents sued for in this action. As this conclusion takes away the foundation of the suit, it is unnecessary to notice other assignments of error.

The judgment of the circuit court is reversed, and the cause remanded to that court for further proceedings in conformity with this opinion.

title: Teal v. Walker/Opinion of the Court


text: Talk:Teal v. Walker/Opinion of the Court