M. M. Waters, for applts. While 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, held the legal time of the affray he actually octitle to the whole of the highway cupied 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 adjoin- ing 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 were 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. to which ruling defendants excepted. Defendants requested the court to charge that there was not sufficient evidence of an adverse possession to authorize the jury to find that plaintiff had thereby acquired title to the land in dispute. This request was refused and an exception taken. Plaintiff proved that his remote grantor took title in 1837 to plaintiff's farm under a deed which bounded the farm by the center of the highway; that he immediately built a fence extending one rod into the highway, and until 1846 plaintiff through his remote and immediate grantors continued to occupy and cultivate all the land in such inclosure. In 1846 a survey established the fact that J. had the legal title to the whole of said highway. In that year the fence on plaintiff's farm was moved back to the southern boundary of the highway and since then no part of such road has been inclosed by either plaintiff or J. From 1867, Wm. J. Mantanye, for respt. Held, That the evidence was insufficient to establish a title in plaintiff to the land in question. 54 N. Y., 387; id., 631. the law authorizes the owner of lands adjoining the highway to use and occupy it in any manner not inconsistent with the right of passage thereon by the traveling public. its permanent occupation by inclosure or cultivation is manifestly inconsistent with such right of passage, and, no matter how long continued, can never ripen into a title as against the public, whatever may be the rule as to its effect upon the owner of the soil of such highway. The fact that defendant J. did not take and hold the actual occupation of the highway in question does not militate against his title, as he had all of the possession of the property in question of which it was legally susceptible. The true owner must be considered as constructively in possession of the land to which he holds the title | In an action to set aside a deed as fraudulent unless they are in the actual hostile occupation of another under a claim of title; this rule is still more imperative in the case of wild and uncultivated tracts or lands which are not legally sus ceptible of actual occupation and cultivation. 5 Cow., 371; 79 N. Y., 99. This possession is deemed to continue until there is an actual disseizin and expulsion of the true owner from the land. When such dispossession terminates, if it does terminate within twenty years, the possession is by construction of law considered as having again returned to him who holds the legal title. 5 Cow., 371; 79 N. Y., 99. evidence that at the time of such conveyance a suit was pending against the grantor and that his attorney attempted to delay the recovery of a judgment therein is competent as showing a motive for the conveyance. The production and proof of an order made in supplementary proceedings reciting the facts necessary to give the court jurisdiction to act furnishes conclusive evidence of the regularity of such order when questioned collaterally and prima facie evidence of the existence of such facts. This was an equity action brought by plaintiff as receiver of the property and effects of defendant N., to set aside certain alleged fraudulent conveyances theretofore made to the other defendants herein and to subject the property therein described to the lien of such judgment. Plaintiff claimed to derive his authority as such receiver by virtue of his appointment under proceedings supplementary to exeAll cution taken in three several ac Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial ordered. Opinion by Ruger Ch. J. concur. PRACTICE. EVIDENCE. RECEIVER. N. Y. COURT OF APPEALS. tions wherein judgments had been obtained against said N. A judgment was rendered for plaintiff for the relief demanded, which was reversed by the General Term and a new trial ordered on the ground of Wright, recr., applt., v. Nos. alleged irregularities in the pro trand et al., respts. Decided Nov. 20, 1883. In an equitable action to remove a cloud upon title the defendants are not entitled as matter of right to a trial by jury. The court may direct issues to be framed and tried by jury, but this rests in its discretion. A deposition of one of the defendants, taken in supplementary proceedings, is competent against him as an admission, and where he has given evidence in behalf of all the defendants it is competent against all as affecting his credibility. ceedings under which plaintiff Thomas & Wilder, for respts. Held, That it was competent for the defendants, in support of the order of the General Term, to urge any other material errors committed upon the trial, even though they were not mentioned by the General Term as among its reasons for the reversal. It was claimed that the court erred in refusing to award to defendants on their request a trial by jury. Held, Untenable; that the action being an equitable one to remove a cloud upon the title of the property sought to be subjected to the liens of the judgments, it did not authorize the defendants or either of them to claim as matter of right a trial by jury. In such cases the court may in its discretion frame issues and direct them tried before a jury and its determination is not the subject of review. 50 N. Y., 572. It was claimed that the judgment originally entered was erroneous because it did not provide for a right of dower claimed to exist in favor of defendant M. N. in the property alleged to have been fraudulently conveyed to her, and that it was in other respects erroneous in form. Held, That these were questions not properly before the General Term, and cannot be raised upon the appeal here. Defendants' remedy if any such irregularities exist is by motion and appeal from the order thereon if the proper relief is not granted. 36 N. Y., 561; 37 id., 526; 34 id., 383. Defendant N. was called as a witness for defendants and gave material evidence for them. His deposition taken on proceedings supplementary to execution was received in evidence under defendants' objection. Held, No error; that the deposition was competent as against N. Vol. 18.-No. 11a. as an admission in the case by one of the defendants therein, and was also competent, at the time it was offered, as against all the defendants for the purpose of affecting the credibility of N.'s testimony for defendants on the trial. A One C. testified as to the pending of an action by one A. against N. at the time of the alleged fraudulent conveyance, and the attempt of N.'s attorney to delay the recovery of a judgment therein. motion was made to strike out the evidence of C. on the ground that it did not appear that N. knew that the case had been put on the short cause calendar for trial. The motion was denied. Held, No error; that the evidence was proper as tending to furnish a motive on the part of N. for placing his property beyond the reach of his creditors and it may be fairly presumed that a person has notice of the proceedings in a cause in which he is the sole defendant. Plaintiff, as receiver, had a right to bring and maintain this action, in which it is simply sought to remove a cloud upon N.'s title to the property in question, so as to subject it to sale on execution. 9 N. Y., 142; 40 id., 383; 19 id., 369. It is not necessary in a case where only personal property is concerned, or where a receiver is seeking simply to enforce the collection of a chose in action, to show a compliance with those requirements of the statute which are made the conditions of the transfer of the title of the debtor's real estate it requires no interest in the debtor's property to authorize RECORD SUBROGATION. TERM. SECOND DEPT. respt., James Mackin et al., applts. Decided Sept., 1883. V. The mortgage in suit was assigned after being recorded by S., the mortgagee, to plaintiff's assignor, but the assignments were not recorded, and S. thereafter executed and delivered a satisfaction piece, which was recorded. Subsequently a mortgage on the same premises was given to R. et al., who had knowledge of the prior mortgage, and they assigned the same for value to defendants, who took without notice and recorded their assignment, Held, That defendants were entitled to preference under the recording act. a receiver any more than the judg- N. Y. SUPREME COURT. General ment creditors to maintain an action to collect a judgment from the debtor therein. 40 N. Y., 383. A party in a collateral proceeding cannot raise every question relating to the appointment of a receiver. 2 Cow., 454; 7 N. Y., 195; 12 id., 164; 33 Barb., 328; 10 Hun, 453. The production and proof of an order made by a court or judge, authorized by law to make it, in proceedings supplementary to execution, reciting the facts necessary to give such court or judge jurisdiction to act in the proceedings, furnishes conclusive evidence of the regularity of such order when questioned collaterally, and prima facie evidence of the existence of the facts necessary to confer jurisdiction. 59 Barb., 383; 28 N. Y., 652; 41 id., 159; 37 id., 236; 19 How., 560; 17 Wend., 483; 8 N. Y., 258. Defects in an execution which are apparent and so amendable can only be taken advantage of by the defendant in the execution in a direct proceeding to set it aside. 15 Abb., 230; 2 Hill, 364; 3 Barb., 18; 2 id., 308; 28 N. Y., 318; 48 id., 163. The assignment to defendants contained a guaranty of payment. Held, That defendants could not be compelled to resort to the guaranty, and that while plaintiff, on payment of the amount due, might compel an assignment of the mortgage, he could not be subrogated to defendants' rights under the guaranty. Appeal from judgment in favor of defendants. Action to foreclose a mortgage. In 1856, M., the owner of the premises, executed the mortgage in question to one S., and the same was duly recorded in February of that year. S. assigned the mortgage in that year to M. D., who assigned to J. D. in 1861, and the latter assigned to plaintiff in 1880, but none of these assignments were ever recorded, although the All papers were at all times in the Judgment of General Term, reversing judgment for plaintiff, reversed and judgment for plaintiff affirmed on stipulation. Opinion by Ruger, Ch. J. 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 to defendants Mackin and others, as executors, for value and without notice of the existence of the mortgage in suit, and the assignment was duly recorded in 1877. In this assignment R. and others guaranteed the payment of the mortgage. Defendants have foreclosed their mortgage and sold all the land covered by it, except the premises in question, and realized but a small sum. The premises here are insufficient for the payment of both mortgages. Henry Bacon, for applt. E. A. Brewster, for respts. Held, That though R. and oth ers having taken their mortgage for an antecedent debt without paying consideration, or parting with any value, and with actual notice of the existence of plaintiff's mortgage, held their mortgage subject to that of plaintiff, yet as they assigned to Mackin and others, who had no notice of it, the latter were entitled to preference after they recorded their assignment. 79 N. Y., 23. Aside from the recording act the assignee of a mortgage takes the place of his assignor and receives the mortgage subject to all equities. 22 N. Y., 535; 67 1d., 437. But now, under our recording statute, where Plaintiff contends for the application of the rule which applies in cases where one creditor has a lien on two funds for the security of his debt, and another has an interest in only one of those funds, without right to resort to the other. Held, Untenable; that plaintiff's case is not within the scope of the rule. Mackin and his associates have a lien only on one fund or property. They may have a cause of action against R. and others by virtue of their contract of guaranty, but that gives no lien. They have but one lien, and that is on the same property embraced by the lien of plaintiff. They cannot, therefore, be compelled to resort to the covenant in their assignment under the rule invok ed. Plaintiff also insists that if the R. mortgage be a prior lien, it is his absolute legal right to pay the amount due thereon and be subrogated to all the rights of the holders, not only in the mortgage, but in the guaranty which they hold as collateral security for its payment. Held, Untenable. On payment of the amount remaining unpaid on the R. mortgage plaintiff may compel an assignment of that se |