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and it was proved on the trial, | when plaintiff entered into posthat J., by virtue of a deed from session of his farm, down to the the owner in 1835, hell the legal time of the affray he actually octitle to the whole of the highway cu pied a strip of land one rod down to the date of the affray. wide adjoining the farm in the Plaintiff sought to establish title highway by ploughing, cultivatto the half of the highway adjoining and mowing in each year of ing his premises by proof of ad- his occupation. Plaintiff's immeverse possession for twenty years diate grantor testified that he by himself and his grantors. The sometimes piled a quantity of lumfacts upon which this claim was ber in the road against the fence founded wire controverted by de- near his gateway, and annually fendants. The court left it to the mowed and converted the grass jury to determine on the whole growing upon a plot of ground in evidence whether plaintiff had es

the road, not exceeding one or two tablished his right to the premi- | rods square. ses by adverse possession, M. M. Waters, for applts. which ruling defendants excepted.

Wm. J. Mantanye, for respt. Defendants reqnested the court

Held, That the evidence was in. to charge that there was not suffi sufficient to establish a title in cient evidence of an adverse pos- plaintiff to the land in question. session to authorize the jury to 54 N. Y., 387; id., 631. While find that plaintiff had thereby ac- the law authorizes the owner quired title to the land in dispute. of lands adjoining the highThis request was refused and an way to use and occupy it in any exception taken. Plaintiff proved manner not inconsistent with the that his remote grantor took title right of passage thereon by the in 1837 to plaintiff's farm under a traveling public. its permanent deed which bounded the farm by occupation by inclosure or cultithe center of the highway ; that vation is manifestly inconsistent he immediately built a fence ex- with such right of passage, and, tending one rod into the highway, no matter how long continued, and until 1846 plaintiff through can never ripen into a title as his

remote and immediate against the public, whatever may grantors continued to occupy and be the rule as to its effect upon the cultivate all the land in such in. owner of the soil of such highway. closure. In 1816 a survey estab. The fact that defendant J. did not lished the fact that J. had the le-| take and hold the actual occupagal title to the whole of said high- tion of the highway in question way. In that year the fence on does not militate against his title, plaintiff's farm was moved back to as he had all of the possession of the southern boundary of the high the property in question of which way and since then no part of it was legally susceptible. The sach road has been inclosed by true owner must be considered as either plaintiff or J. From 1867, constructively in possession of the

or

land to which he holds the title In an action to set aside a deed as fraudulent unless they are in the actual hos

evidence that at the tim: of such convey.

ance a suit was pending against the granttile occupation of another under

and that his attorney attempted to a claim of title; this role is still

delay the recovery of a judgment therein more imperative in the case of is competent as showing a motive for the wild and uncultivated tracts or conveyance. lands which are not legally sus

The production and proof of an order made

in supplementary proceedings reciting the ceptible of actual occupation and

facts necessary to give the court jurisdiction cultivation. 5 Cow., 371; 79 N. to act furnishes conclusive evidence of Y., 99. This possession is deemed the regularity of such order when questo continue until there is an actu

tioned collaterally and prima facie evidence

of the existence of such facts, al disseizin and expulsion of the true owner from the land. When This was an equity action brought such dispossession terminates, if by plaintiff as receiver of the propit does terminate within twenty erty and effects of defendant N., years, the possession is by con- to set aside certain alleged fraudutstruction of law considered as lent conveyances theretofore made having again returned to him who to the other defendants herein an] holds the legal title. 5 Cow., 371; to subject the property therein de79 N. Y., 99.

scribed to the lien of such judg. Judgment of General Term, al- ment. Plaintiff claimed to derive firming judgment on verdict for his authority as such receiver by plaintiff, reversed and new trial virtue of his appointment under ordered.

proceedings supplementary to exeOpinion by Ruger Ch. J. All cution taken in three several acconcur.

tions wherein judgments had been

obtained against said N. A judg. PRACTICE. EVIDENCE.

ment was rendered for plaintiff for RECEIVER.

the relief demanded, which was re

versed by the General Term and a N. Y. COURT OF APPEALS. new trial ordered on the ground of Wright, recr., applt., v. Nos. alleged irregularities in the protrand et al., respts.

ceedings under which plaintiff

was appointed receiver. Decided Nov. 20, 1883.

H. D. Betts, for applt. In an equitable action to remove a cloud upon

Thomas & Wilder, for respts. title the defendants are not entitled as matter of right to a trial by jury. The

© Held. That it was competent for court may direct issues to be framed and

the defendants, in support of the tried by jury, but this rests in its dis

order of the General Term, to urge cretion. A deposition of one of the defendants, taken any other material errors com

in supplementary proceedings, is compe- mitted upon the trial, even though tent against him as an admission, and they were not mentioned by the where he has given evidence in behalf of all the defendants it is competent against

General Term as among its reasons all as affecting his credibility.

for the reversal.

It was claimed that the court as an admission in the case by one erred in refusing to award to de- of the defendants therein, and was fendants on their request a trial also competent, at the time it was by jury.

offered, as against all the defendHeld, Untenable; that the action ants for the purpose of affecting being an equitable one to remove the credibility of N.'s testimony a cloud upon the title of the prop- for defendants on the trial. erty sought to be subjected to the One C. testified as to the pendliens of the judgments, it did not ing of an action by one A. against authorize the defendants or either N. at the time of the alleged fraudof them to claim as matter of right ulent conveyance, and the attempt a trial by jury. In such cases the of N.'s attorney to delay the recourt may in its discretion frame covery of a judgment therein. A issnes and direct them tried before motion was made to strike out the a jury and its determination is not evidence of C. on the ground that the subject of review. 50 N. Y., it did not appear that N. knew 572.

that the case had been put on the It was claimed that the judgment short cause calendar for trial. The originally entered was erroneous

motion was denied. because it did not provide for a Held, No error; that the eviright of dower claimed to exist in dence was proper as tending to favor of defendant M. N. in the furnish a motive on the part of N. property alleged to have been for placing his property beyond fraudulently conveyed to her, and the reach of his creditors and it that it was in other respects erro. may be fairly presumed that a neous in form.

person has notice of the proceedHeld, That these were questions ings in a cause in which he is the not properly before the General sole defendant. Term, and cannot be raised upon Plaintiff, as receiver, had a right the appeal here. Defendants to bring and maintain this action, remedy if any such irregularities in which it is simply sought to reexist is by motion and appeal move a cloud upon N.'s title to the from the order thereon if the property in question, so as to subproper relief is not granted. 36 ject it to sale on execution. 9 N. Y., 561 ; 37 id., 526; 34 id., N. Y., 142; 40 id., 383; 19 id., 383.

369. Defendant N. was called as a It is not necessary in a case witness for defendants and gave where only personal property is material evidence for them. His concerned, or where a receiver is deposition taken on proceedings seeking simply to enforce the colsupplementary to execution was re- lection of a chose in action, to show ceived in evidence under defend a compliance with those requireants' objection.

ments of the statute which are Held, No error ; that the depo- made the conditions of the transsition was competent as against N. fer of the title of the debtor's real

Vol. 18.-No. 11a.

estate ; it requires no interest in

RECORD. SUBROGATION. the debtor's property to authorize a receiver any more than the judg. N. Y. SUPREME COURT. GENERAL ment creditors to maintain an ac

TERM. SECOND DEPT. tion to collect a judgment from the

v. debtor therein. 40 N. Y., 383. A James Mackin et al., applts.

Zipporah Clark, respt., party in a collateral proceeding cannot raise every question rela

Decided Sept., 1883. ting to the appointment of a re

The mortgage in suit was assigned after being ceiver. 2 Cow., 454; 7 N. Y., 195;

recorded by S., the mortgagee, to plaintiff's 12 id., 164; 33 Barb., 328; 10 assignor, but the assignments were not reHun, 453. The production and corded, and S. thereafter executed and deproof of an order made by a court

livered a satisfaction piece, which was reor judge, authorized by law to

| corded. Subsequently a mortgage on the

same premises was given to R. et al., who make it, in proceedings supple- had knowledge of the prior mortgage, and mentary to execution, reciting the they assigned the same for value to defendfacts necessary to give such court

ants, who took without notice and recorded

their assignment, Held, That defendants or judge jurisdiction to act in the

were entitled to preference under the reproceedings, furnishes conclusive

cording act. evidence of the regularity of such the assignment to defendants contained a order when questioned collater- guaranty of payment. Held, That defend

ants could not be compelled to resort to the ally, and prima facie evidence of

guaranty, and that while plaintiff, on pay. the existence of the facts neces- ment of the amount due, might compel an sary to confer jurisdiction. 59 assignment of the mortgage, he could not Barb., 383; 28 N. Y., 652; 41 id., be subrogated to defendants' rights under

the guaranty. 159 ; 37 id., 236; 19 How., 560; 17 Wend., 483; 8 N. Y., 258. Appeal from judgment in favor

Defects in an execution which of defendants. are apparent and so amendable

Action to foreclose a mortgage. can only be taken advantage of by In 1856, M., the owner of the premthe defendant in the execution in ises, executed the mortgage in a direct proceeding to set it aside. ' question to one S., and the same 15 Abb., 230; 2 Hill, 364 ; 3 Barb., was duly recorded in February of 18; 2 id., 308; 28 N. Y., 318; 48 that year. S. assigned the mortid., 163.

gage in that year to M. D., who Judgment of General Term, re. assigned to J. D. in 1861, and the versing judgment for plaintiff, le- latter assigned to plaintiff in 1880, versed and judgment for plaintiff but none of these assignments affirmed on stipulation.

were ever recorded, although the Opinion by Ruger, Ch. J. All papers were at all times in the concur.

hands of the assignees. In 1873 S. executed and delivered to M.'s grantee a satisfaction piece of the mortgage, without payment or consideration, which was duly re

corded. Thereafter and in 1876 the assignee of a junior mortgage said grantee executed and deliver receives his assignment in good ed to R. and others a mortgage on faith, without notice of a prior the same premises, with others, for unrecorded mortgage, he is entian antecedent indebtedness and tled to preference if he records his without other consideration. This assignment before the first mortmortgage was duly recorded in gage is recorded, even though his 1879, and was taken with notice of assignor had notice thereof. 5 the existence of the mortgage in Den., 187 ; 79 N. Y., 23. suit. This mortgage was assigned Plaintiff contends for the applito defendants Mackin and others, cation of the rule which applies in as executors, for value and with- cases where one creditor has a lien out notice of the existence of the on two funds for the security of mortgage in suit, and the assign- his debt, and another has an interment was duly recorded in 1877. est in only one of those funds, In this assignment R. and others without right to resort to the guaranteed the payment of the other. mortgage. Defendants have fore- Held, Untenable; that plainclosed their mortgage and sold all tiff's case is not within the scope the land covered by it, except the of the rule. Mackin and his assopremises in question, and realized ciates have a lien only on one fund but a small sum.

The premises or property. They may have a here are insufficient for the pay- cause of action against R. and ment of both mortgages.

others by virtue of their contract Henry Bacon, for applt.

of guaranty, but that gives no E. A. Brewster, for respts. lien. They have but one lien, and

Held, That though R. and oth that is on the same property em- ' ers having taken their mortgage braced by the lien of plaintiff. They for an antecedent debt without cannot, therefore, be compelled to paying consideration, or parting resort to the covenant in their with any value, and with actual assignment under the rule invok notice of the existence of plain. ed. tiff's mortgage, held their mort. Plaintiff also insists that if the gage subject to that of plaintiff, R. mortgage be a prior lien, it is yet as they assigned to Mackin his absolute legal right to pay the and others, who had no notice of amount due thereon and be subro it, the latter were entitled to pref- gated to all the rights of the hold erence after they recorded their ers, not only in the mortgage, but assignment. 79 N. Y., 23. Aside in the guaranty which they hold from the recording act the assignee as collateral security for its payof a mortgage takes the place of ment. his assignor and receives the mort- Held, Untenable. On payment gage subject to all equities. 22 N. of the aniount remaining unpaid Y., 535 ; 67 id., 437.

on the R. mortgage plaintiff may under our recording statute, where compel an assignment of that se

But now,

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