Page images

the grantors in the deed under which plaintiff claims. owned premises answering the description therein. It was claimed that the deed was void on its face for indefiniteness.

Winchester Britton, for applts. Henry G. Atwater, for respt. Held, Untenable; while premises upon which a grant is to operate must be described in the deed so that they can be identified, it is not necessary that they should be described by boundaries, courses, or distances, or by reference to monuments. Words of general description are sufficient. Nothing passes by a deed except what is described in it, whatever the intention of the parties may have been, but when words of general description are used oral evidence is admissible to ascertain the particular subject matter to which they apply, without infringing upon the rule which prohibits parol evidence to add to or contradict the language of written instruments. The object of oral evidence in such cases is to ascertain the intention of the parties as expressed in the writing, and not to make it operate upon land not embraced in the descriptive words. 4 Ad. & El., 32; 1 Mer., 653.

A deed was executed December 18, 1880, from P., assignee in bankruptcy of C., to plaintiff, under the order of the bankrupt court, made upon petition of the bank rupt, showing that plaintiff, in 1856, purchased the property in question of the bankrupt and paid therefor, and by mistake it was omitted from a deed of July 24,

1856, from the bankrupt to plaintiff. The deed from the assignee recites that it was made to correct. such mistake. It was claimed that this deed was void and in contravention of the statute which provides that every grant of land shall be absolutely void, if at the time of the delivery thereof such land shall be in the actual possession of a person claiming under a title adverse to that of the grantor. 1 R. S., 739. It appeared that defendant was in possession at the time of the assignee's deed to plaintiff under a deed from the original grantors of the property, dated July 3, 1877.

Held, Untenable; that the assignee's deed to plaintiff was not within the mischief at which the statute was pointed, or within the intention of the Legislature.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Andrews, J. All



N. Y. COURT OF APPEALS. Day, comr., applt., v. Day, comr., respt.

Decided Nov. 27, 1883.

Where a bridge is built on the line dividing two towns, being situated partly in each, both towns are liable for the expense of maintaining it, and for that purpose it is not to be considered as wholly within the town to which the road district has been allotted under the town line road act.

The main question in this case is whether a bridge should be built

and maintained by the towns of R. and H. jointly, or by the town of R. alone. The bridge in question is situated partly in each town, being built on the line dividing them, which runs east and west. The north half of the bridge is in H. and the south half in R. It connects a public highway which crosses the stream and is divided through the center by the line dividing the towns. The defendant contends that under the provisions of the Revised Statutes, 1 R. S., 516, §§ 73, 74, 75, that when a highway is laid out on the line between two towns it shall be divided into two or more road districts in such manner that the labor and expense of "opening, making and keeping in repair" such highway through each of said districts may be equal as near as may be, and to allot an equal number of the said districts to each of said towns, and that each district shall be considered as wholly belonging to the town to which it shall be allotted "for the purpose of opening and improving the road and keeping it in repair," and that the bridge in question being in the district allotted to the town of R. should be built by plaintiff.

Ransom & Joyce, for applt. Elsworth & Potter, for respt. Held, Untenable; that considering the context of said provisions in connection with the general course of legislation on the subjects of highways, road districts and bridges, and the judicial construction which has been put upon them, it clearly appears that roads and road districts are considered

as distinct subjects from bridges, and that when bridges are intended. to be included they are specifically mentioned, 17 Johns., 439; that the two towns are liable under the Act of 1857, Chap. 383, for the expense of maintaining the bridge in question. and for that purpose it is not to be considered as wholly within the town to which the road district has been allotted under the town line road act,

Judgment of General Term, affirming judgment of County Court reversing judgment of justice dismissing complaint, reversed and new trial ordered in County Court. Opinion by Rapallo, J. All

[blocks in formation]

The cashier of a bank in Missouri, to enable the bank to tide over a crisis, agreed with defendants that if the latter would accept certain drafts the bank would at all times keep on deposit with defendants a sum equal to the amount of the drafts; that defendants should have a lien thereon as security for their liability and the right at any time to appropriate the deposit or so much as was necessary to pay their acceptances. The bank thereafter failed and made a voluntary assignment on the same day, but after defendants had charged up the acceptances. Held, That the agreement was one the cashier was authorized to make and was not invalid as against public policy, and that defendants had a right to charge against the bank the face of the drafts and hold that amount to meet them when they came due.

The statute prohibiting preferences by insol

vent corporations applies to domestic and several years been the correspondnot to foreign corporations. ent of the M. Bank in New York City, and the bank subsequently and prior to August 3, 1878, made other deposits with D. L. & Co. Subsequent to June 10, 1878, sight drafts in favor of customers, in the usual course of business, were drawn from time to time by the M. Bank upon D. L. & Co., and such drafts as were presented prior to August 3, 1878. were paid by the drawees and charged to the account of the bank. On the morning of that day the credit to the bank on the books of D. L. & Co. was $50,459.68. Acceptances of D. L. & Co. of $35,000 had not yet matured, and were held by third parties. They did not draw interest, and their value at that time was $34,833.49. On July 27, 1878, the cashier of the M. Bank wrote to D. L. & Co., informing them he apprehended a run on the bank, and directing them to charge up the acceptances to the bank. This letter was received by D. L. & Co. about July 30th, but they did not immediately act upon it. On August 3d the cash ier telegraphed that the bank had failed, and immediately thereafter D. L. & Co. charged the acceptances to the M. Bank, and subsequently at their maturity paid them to the holders. On August 3d the M. Bank made a voluntary assignment of its property plaintiff for the benefit of its crediThe assignment was executed on the same day, but after D. L. & Co. had charged up the acceptances. At that time there were outstanding about $40,000



This action was brought to recover the sum of $34,940.68, with interest thereon from August 3, 1878. It appeared that on June 10, 1878, an agreement was made between the cashier of the M. Bank of Missouri and defendants, D. L. & Co., that if the latter would accept four accommodation drafts dated June 8, 1878, drawn upon them, and which had been negotiated by the bank, but had not yet been presented to the drawees for acceptance, the bank would keep on deposit with D. L. & Co., in New York, at all times until their maturity, a sum equal to the amount of the drafts, and that the drawees should have a lien thereon as security for their liability on the acceptances, and should be kept informed of the condition of the bank, and have the right at any time to charge the account with the acceptances, and appropriate or apply the deposit, or so much as might be necessary to their payment. The cashier of the bank represented to D. L. & Co. at the interview of June 10, 1878, that the bank was in straits for money, but that with their assistance through the acceptance of the drafts and other aid which could be procured the bank would be able to tide over its embarrassments and continue its business. D. L. & Co. accepted the drafts under the agreement of June 10, 1878. The proceeds were, within a day or two after they were accepted, deposited by the M. Bank with D. L. & Co., who had for

unaccepted drafts drawn by the M. Bank on D. L. & Co., which are still unpaid.

Leslie W. Russell, for applt. Rastus D. Ransom, for respts. Held, That the agreement of June 10, 1878, was one the cashier of the M. Bank was authorized to make as incident to his office and under the by-laws of the bank. 15 N. Y., 9; 19 id., 152. He also had authority to negotiate the drafts.

A contract for a lien on property not in esse may be effectual in equity to give a lien as between the parties when the property comes into existence and when there are no intervening rights of creditors or third persons. 49 N. Y., 626; 65 id., 459; 71 id., 113.

Also held, That said contract was not invalid as against public policy; that regarding the transthe action, disconnected from equities which surround it, as a simple preference of one creditor of the bank it was not unlawful. 1 Story's Eq., § 370; 2 Kent's Com., 532; 5 Johns., 335; 15 id., 571; 36 N. Y., 668. A corporation possesses in this respect the same right as an individual, and may execute a mortgage or give a lien which shall operate as a preference, unless restrained by its charter or by statute. L. R., 6 Ch. L. R., 6 Ch. Ap., 83; 6 Conn., 233; 5 W. & S., 223; 2 Kent's Com., 315 note; A. & A. on Corp., § 187.

The provision of the Revised Statutes, 1 R. S., 593, § 9, prohibiting preferences by insolvent corporations, applies to domestic and not to foreign corporations.

D. L. & Co. had a right under the agreement to charge against the account of the bank the face of the drafts and to hold that amount to meet the sum they would be bound to pay at their maturity.

Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Opinion by Andrews, J. All concur.


N. Y. COURT OF APPEALS. Victory, comr., respt., v. Blood. applt.

Decided Dec. 4, 1883.

Where the case contains no recital as to what the motion for a new trial at General Term was based upon, or whether it is made upon exceptions, the Court of Appeals has no jurisdiction.

An appeal in the above entitled action was dismissed on the supposition that it was from an interlocutory judgment only. A motion is made for a reargument on the ground that there was also an appeal to this court from an order denying a motion for a new trial made at the same General Term which affirmed the interlocutory judgment. All the record coutains showing that a motion for a new trial was made at the General Term and there denied is the following: On page one of the printed case there is this statement prefixed by the party who procured the case to be printed:

Motion for new trial made and appeal from judgment argued at

General Term September 18, 1881.' On page five is the interlocutory judgment. On page 15 a notice of appeal from the interlocutory judgment, and on page 20 the order made after the argument of the appeal at the General Term, as follows: "The above named de

* * *


fendant * * * having appealed to the court from the judgment in this action entered the 9th day of September, 1880, and said appeal having been brought to argument and considered by this court, it is ordered, that the said judgment be, and the same is, hereby affirmed in all things, and the application for a new trial denied, with costs to be adjusted in favor of respondent and against appellant." The case contains no notice of motion for a new trial. Upon the order a judg ment of affirmance, with costs, was entered the same day. On page 21 there is a notice of appeal to the Court of Appeals from the judgment of affirmance, and "from the order of the General Term of said court denying the motion for a new trial herein, entered * on the 15th day of December, 1881." It does not appear in the case that any order denying a motion for a new trial was entered on December 15, 1881. The judg ment affirming the interlocutory judgment was the only judgment entered on that day. The opinion of the General Term does not speak of any motion for a new trial, but simply of the appeal from the interlocutory judgment, and concludes with a direction that that judgment must be affirmed. There

* *

is no recital to be found in the case upon what the motion was based, nor whether it was made upon one or more exceptions as required by 1001 of the Code of Civil Procedure.

M. L. Stover, for applt. W. L. Vandenburg, for respt. Held, That the record fails to show jurisdiction. The consent of the parties cannot give jurisdiction. Motion denied. Opinion by Earl, J.

All con



N. Y. COURT OF APPEALS. Bliss, respt., v. Johnson et al., admrs., applts.

Decided Dec. 11, 1883.

Proof that the owner of lands adjoining a highway continually cultivated and mowed a portion of such highway, and used it for piling lumber, is insufficient to establish a title in him to that portion of the highway by adverse possession.

The permanent occupation of a highway by inclosure or cultivation is manifestly inconsistent with the right of passage by the traveling public, and no matter how long continued, can never ripen into a title as against the public, whatever may be its effect as to the owner of the soil of such highway.

This was an action for assault and battery. It is reported on a former appeal in 73 N. Y., 529. The assault and battery took place in 1875 in the public highway which divides the respective farms of plaintiff and J., defendants' intestate. On the trial both parties claimed title to the locus in quo, but the evidence established,

« PreviousContinue »