Ross ads. Rouse.

and could no more sue separately, than executors or administrators can sue separate ly for a debt due them in their representative capacity.

These objections were made upon the trial. On the argument, it was further objected, that both appraisers should have been produced. I have endeavored to shew, that it was not necessary to produce either of the appraisers, to prove either the payment of the money, or the land for which it was paid. The receipt of the defendant, with the explanation given to it, was sufficient to make out the plaintiffs' right of recovery. It was also further objected, that as the canal was finished before the conveyance to the plaintiffs by George Brinckerhoff, the plaintiffs had no right to the money; that George Brinckerhoff, only had a right of action which could not be conveyed. The answer is, that the completion of the canal did not divest the former owner of the fee of his lands occupied for the canal. By the act already referred to, the payment of the money seems to be a condition precedent to the passing of the fee from the former owner to the people of the state. The langnage of the act is thus: "And the canal commissioners shall pay the damages so to be assessed and appraised, and the fee simple of the premises so appropriated, shall be vested in the people of this state." The title of the plaintiffs bears date Aug. 3d, 1823. The payment by Mr. Seymour was Feb. 28th 1825. The fee simple of one half was, therefore, in the plaintiffs until the payment of the money, which was long after the title accrued.

Ross ads. A. ROUSE

Judgment for plaintiffs.

[475]

In an action of slander, for words charging a party with false swearing before arbitrators, the evidence alleged to have been false must be shewn to have been material. (a)

Where the only matter in dispute before arbitrators was as to the extent of the right of parties growing out of a written and sealed agreement, evidence of a conversation and agreement between the parties relative to those rights, had previous to the agreement being reduced to writing and executed, was held to be immaterial; and words alleging such evidence to be false, were adjudged not to be actionable, although the arbitrators admitted the evidence, after deciding it to be illegal and improper, and although the witness believed he was giving material evidence.

This was an action on the case for slander. The plaintiff was a witness in a case submitted to arbitration between the defendant and one Timothy Rouse, and whilst he was testifying, the defendant, addressing him, said: "Every word you have sworn to is false. And immediately after the arbitration, in the bar-room of the house where the arbitration was holden, said: "A. Rouse has sworn to a lie, and I can prove it." The defendant proved by Henry A. Wisner, that disputes had existed between the defendant and Timothy Rouse as to the extent of certain privileges secured to each of the parties by a written contract under seal, entered into by them on the sale of a farm by Ross to Rouse; that the subject was submitted to arbitration; and the sole matter in dispute between the parties before the arbitrators, was as to the extent of those privileges to which they were respectively entitled, under and by virtue of that contract; that the plaintiff in this action was called by Timothy Rouse, to prove the conversations and agreements between the parties previous to

(a) "You swore to a lie, for which you now stand indicted," is equivalent to a charge of perjury, and actionable. Pelton v. Ward. 3 Caine's R. 73. A charge of false swearing is actionable in itself when it necessarily conveys to the mind and the hearer, an imputation of perjury. McClaughny v. Wetmore, 6 Johns. 82. Gilman v. Lowell, 8 Wend. 573. Sherwood v. Chace, 11 Wend. 38. Jacobs v. Tyler,

3 Hill, 572. Rundell v. Butler, 7 Barb. 253. Coons v. Robinson, 3 Barb. R. 625. As to evidence tending to show the quo animo, see Howard v. Sexton, 4 Comstock, 157. An action of slander will not lie for words actionable in themselves, but which were spoken under such circumstances as would not lead persons to believe that they were spoken as truth. Haynes v. Haynes, 26 Maine R. 247. 1 Starkie on Slander, 88, 101. Howard v. Sexton, 4 Comstock, 157.

Ross ads. Rouse.

the contract being drawn up and executed; that the testimony was objected to on the part of Ross, that the arbitrators decided that the testimony was illegal and improper, but that they would hear it, and they would be able to decide better, by hearing the whole story. The plaintiff, Anthony Rouse, was then sworn; and his testimony related solely to the agreement between the parties previous to the execu tion of the written contract. The plaintiff next offered in evidence the arbitration bond, for the purpose of shewing that the submission was general. It submitted a dispute between the parties respecting the possession or right of possession of certain messuages, lands and premises, and a certain farm sold by Ross to Rouse.

The counsel for the defendant submitted to the presiding judge, whether the words spoken in reference to testimony which was irrelevant and illegal, were [176] actionable. The judge decided, that although the arbitrators held that the

testimony was immaterial, yet, as they heard it accompanied with the declaration, that they could decide better by hearing the whole story, and as the witness testified under the sanction of an oath, and the belief that he was giving material testimony required by the authority of the arbitrators, the words spoken were actionable, and he so charged the jury. The counsel for the defendant excepted. The jury found for the plaintiff, with $58 damages.

W. M. OLIVER, for defendant, moved to set aside the verdict. Words spoken, to be actionable, must impute a crime or misdemeanor, for which corporal punishment may be inflicted in a temporal court. (6 Cowen, 88. See also Blackstone's definition of slander, 3 Black Comm. 123.) If the testimony given by the plaintiff had been false, he could not have been punished for perjury, because it was totally immaterial to the question before the arbitrators. The words spoken must refer to material testimony. (20 Johns. R. 344.)

J. MCALLISTER, for plaintiff. It is manifest that the arbitrators did not consider themselves confined to decide upon the rights of the parties, as growing out of the written contract. They said they could decide better by hearing the whole story, and received the testimony of the plaintiff. Not being bound by the strict rules of law, they had a right to weigh the whole evidence before them, parol as well as written, and to decide as the equity of the case might require. The evidence therefore, may have had an influence on their decision; and if so, it was material. The counsel cited 10 Johns. R. 167; 6 Cowen, 76; 7 Cowen, 725.

By the Court, SUTHERLAND, J. The words proved were, substantially, that the plaintiff had sworn falsely upon the trial before the arbitrators. These words are not actionable in themselves. A witness may swear falsely without committing perjury. If the whole testimony given upon that trial by the plaintiff, was immateri

al, then no action can be sustained against the defendant for having said it [477] was false. The evidence alleged to have been false, must be shewn to have

been material. (Hopkins v. Beedle, 1 Caines, 347. Chapman v. Smith, 13 Johns. R. 81. Crookshank v. Gray, 20 Johns. R. 344.) Henry A. Wisner testified, that he was the attorney and counsel for Ross upon the arbitration between him and Timothy Rouse; that the sole matter in dispute between the parties before the arbitrators, was as to the extent of the privileges which Ross was entitled to under a written and sealed agreement between him and Rouse, in a house and farm which he had then recently sold to Rouse; and that the testimony of the plaintiff, Anthony Rouse, which the defendant declared was false, related exclusively to the conversations between the parties before the written agreement was executed; that the testimony was objected to at the time as improper, and the arbitrators admitted that it was illegal and improper, but said they would hear the whole story

There is nothing to contradict or impeach the testimony of Mr. Wisner. The fact, that the submission to the arbitrators did not, in terms, confine them to a determination of the rights of the parties under the sealed contract, is not material. Wisner swears positively that the extent of Ross' privileges, under that contract, was the only matter in dispute before the arbitrators. If so then the testimony of the

Roberts ads. Jackson.

plaintiff was entirely immaterial; and though admitted by the arbitrators, ought not to have had, and evidently had not, any influence upon their determination of the cause. The judge, however, ruled, that as the arbitrators permitted the testimony to be given, although they declared it was immaterial, and as the witness testified under the sanction of an oath, and under the belief that he was giving material testimony, required by the arbitrators, the words spoken by the defendant in relation to that testimony, were actionable.

The test is not whether the witness believes his testimony to be material; but whether, if false, he can be indicted for perjury. If it is in fact immaterial, whatever may be the opinion of the witness, though it be false, it is not perjury. charge was erroneous, and a new trial must be granted.

The

New trial granted.

ROBERTS ads. JACKSON, ex dem. WEBB and others.

[478]

Whenever a greater and a less estate unite in the same person without any intermediate estate, the legser estate is merged. Where, however, a person had the fee in certain premises, by a fraudulent conveyance which was avoided in chancery, and he subsequently became the assignee of a mortgage of the same premises, it was held, that the equitable estate was not merged, although, as between grantor and grantee, such conveyances are generally binding and operative.

Parol evidence that a deed in the possession of the grantee was not delivered, is admissible, and does not infringe the rule that such evidence shall not be received to contradict a deed.

Where a judgment was entered after the filing of a bill in chancery, and there was no proof of the service of the subpoena, or of actual notice to the plaintiffs in the execution, previous to the entry of the judgment, a sale under the judgment was held valid, notwithstanding the lis pendens; and the title of a subsequent purchaser was adjudged good, although he had full notice of the suit.

An assignment of a mortgage may be read in evidence on a trial at law, without other proof of its execution than an acknowledgment by the assignor before a commissioner.

THIS was an action of ejectment brought for the recovery of about four acres of land in the town of Cazenovia, tried at the Madison circuit in September, 1827, before the Hon. NATHAN WILLIAMS, one of the circuit judges.

The plaintiff shewed title to the premises as follows: 1st, a deed from Charles Hill, (the common source of title to both parties,) to Stephen Clark, bearing date 1st January, 1817, conveying 100 acres of land, including the premises in question. 2d. A deed of the premises in question, from Stephen Clark to Joshua Clark, his son, for the consideration as expressed, of $2,000, bearing date 6th November, 1817; and 3d, a deed from Joshua Clark to J. Ketchum and H. A. Ten Broeck, two of the lessors of the plaintiff, bearing date 5th September, 1820.

The defendant set up three distinct claims of title to the premises. First. A mortgage and a bond accompanying the same, from Charles Hill to Peter Smith, (of the one hundred acres conveyed by Hill to Stephen Clark,) bearing date 6th April, 1812, duly registered on the 15th April, 1812, on which there appeared to be due and unpaid, $140; which mortgage and bond were assigned by the mortgagee to Joshua Clark, on the 9th October, 1818; and by Clark to J. Stroud, on the 31st October, 1818; and on the 7th April, 1819, Stroud assigned the bond and the moneys therein specified to the defendant. A question was raised as to the proof of the assignment from Clark to Stroud; that offered, was a certificate of acknowledgment by the assignor before a commissioner. The plaintiff's counsel insisted that an assignment of a mortgage was not such an instrument as was entitled to be read in evidence upon a certificate of acknowledgment, but that it should be proved by the sub- [479] scribing witness. The objection was overruled. Second. The proceedings in a suit in chancery, commenced by W, Gardner and others, creditors of Stephen Clark, against Stephen Clark, Joshua Clark and others, to avoid the deed given by Stephen Clark to Joshua Clark, on the ground of fraud. The bill was filed 13th Feb. 1818, and an injunction granted, interdicting all conveyances, &c.; it was ta

Roberts ads. Jackson.

ken pro confesso, and on 16th June, 1818, a decree was entered, setting aside the deed in favor of the complainants, ordering a sale of the premises, and directing the defendants to join in a conveyance of the premises. The premises were sold by a master, to J. P. Webb, (one of the lessors of the plaintiff,) for $975, Webb being the agent of the complainants, and a deed was executed to him; which sale was confirmed by an order of the court of chancery, of 7th June, 1819. J. A. Spencer, the attorney for the plaintiff, was called on to give evidence in relation to the existence of the deed to Webb. He testified that he had seen the deed amongst the papers in the chancery suit, shortly after the sale, but that he had not seen it for many years; that in 1820, the defendant told him that he (the defendant) had taken the deed from W. Whipple, with whom it had been deposited. The defendant was then sworn, and testified that he never had the deed in his possession, to his knowledge; but if it ever was in his possession, it was not now; that he had looked over his papers and could not find it: whereupon, parol evidence of the contents of the deed was given, though objected to by the plaintiff's counsel. The defendant then gave in evidence a release of the premises in question from J. P. Webb and wife to the defendant, bearing date 20th April, 1819, duly acknowledged on the same day, and recorded on the 8th March, 1824. The defendant, further to prove the conveyance from Stephen Clark to Joshua Clark fraudulent, proved that in 1817, (the date of the conveyance,) Joshua Clark was destitute of property; that until

then, he had lived with and been supported by his father, and was incapable [480] of acquiring property by his own exertions. He next shewed a judgment in

favor of Joshua Clark against Stephen Clark for $600 debt, docketed 8th September, 1818, and an assignment of the same from Joshua Clark to John H. Fuller, dated 10th January, 1818, (probably 1819.) He also produced an instrument under seal, executed by S. and J. Clark, dated 6th June, 1821, whereby, in consideration of $500, expressed in the instrument, S. and J. Clark sold, relinquished and quit-claimed all their right and title to the premises in question to the defendant, and engaged to indemnify the defendant against the effect of the last mentioned judgment. The defendant also offered in evidence a certificate under the hand and seal of Joshua Clark, dated 5th April, 1820, acknowledging the conveyance from Stephen Clark to him of the date of 6th November, 1817, to have been executed without consideration; which was objected to and excluded by the judge. The defendant then further proved, that Webb, one of the lessors of the plaintiff had admitted that the master's deed to him of the premises in question, was delivered to J. A. Spencer, the solicitor of the complainants in the chancery suit, who also are lessors of the plaintiff in this cause. Third. A deed from the sheriff of Madison county of the premises in question to Charles Hill, dated 16th May, 1818, by virtue of a sale under an execution issued on a judgment by confession in favor of C. Hill and C. Stebbins against Stephen Clark, (under whom the plaintiff claimed,) docketed 17th February, 1818, for $4,000 debt; next, a deed from Charles Hill and A. Ballon to the defendant, dated 20th December, 1819, recorded 24th March, 1820; and evidence, that at the date of the deed to defendant, Hill was in possession of the premises, except a small house, which was occupied by Joshua Clark.

The plaintiff, to rebut the title set up by the defendant under the deed from Webb, shewed that that deed had never been delivered to the defendant; that a negotiation had been had between the solicitor of the complainants in the chancery suit and the defendant, relative to the sale of the premises in question; that the deed had been prepared and executed by Webb, the agent of the complainants,

which the defendant refused to accept, as it did not contain a covenant of [481] warranty; that it was then agreed, by the solicitor, to procure a warrantee

deed from the complainants, within a specified time, which agreement was endorsed on the original articles of agreement, and it, together with the master's deed and the deed from Webb, left in the care of Mr. W.; that the warrantee deed

Roberts ads. Jackson.

was not procured, and the contract with the defendant never consummated; that the defendant procured the deeds from the person with whom they had been deposited; he claimed no title under them, but refused to deliver them up. The defend ant produced in evidence the article of agreement between the solicitor and himself for the sale of the premises, and the further agreement endorsed thereon, which, after reciting that the release from Webb had been delivered to the defendant, and that Roberts wished the warranty of the complainants, extended the time for performance of the contract for three weeks: in the meantime the defendant to take possession of the premises in question, and the solicitor to take possession of a farm which was to be conveyed by the defendant, in part payment of the consideration, and each party to go on as though the conveyances were executed in pursuance of the original agreement.

The judge charged the jury, that the conveyance from Stephen Clark to Joshua Clark was fraudulent and void as to their creditors, but binding and valid as between the parties thereto; that Joshua Clark having the title in fee, and being in possession of the premises in question, as the owner, at the time he took the assignment of the mortgage from Smith, the equitable estate acquired by such assignment merged in the legal estate he had in the premises; that the title acquired under the judgment of Hill and Stebbins was void, the judgment having been obtained, and the sale under it had subsequent to the filing of the bill in chancery against Stephen Clark and Joshua Clark, which was a lis pendens of which all were bound to take notice; and as to the title set up by the defendant under the deed from Webb, the judge submitted to the jury the question, whether the deed was in fact delivered and accepted, in fulfilment of the terms of the contract between the solicitor of the complainants in the suit in chancery and the defendant, or whether it had been obtained by the defendant without the con- [482] sent of the opposite party. The jury found a verdict for the plaintiff.

N. P. RANDALL, for defendant. The defendant is entitled to retain the possession, being the assignee of a mortgage in possession. (10 Johns. R. 480.) The equitable estate acquired by Joshua Clark, by the assignment of the mortgage, did not merge in the fee, because the fee was void, and so declared by a decree obtained by the lessors of the plaintiff. A valid mortgage could not be merged in a void deed. The deed being adjudged fraudulent and void, Joshua Clark had no estate under it. The property vested in Stephen Clark for the benefit of his creditors. (4 Johns. R. 589. 3 Co. 78, b. 1 Johns. Ch. R. 478.) Courts of law have a right to inquire into frauds, as well as courts of equity. (10 Johns. R. 457 9 Johns. R. 337.)

194.

The defendant has a valid title under the judgment of Hill and Stebbins, and the doctrine of lis pendens does not apply. Hill and Stebbins were not parties to the suit in chancery. They obtained their judgment, and acquired a legal estate in the premises, which can only be divested by a new suit in chancery. (11 Vesey, jun. 1 Johns. Ch. R. 556. 2 d. 441, 155, 158. 2 Johns. Cas. 221, 321. 3 Johns. R. 422.) Courts of law look only to the legal estate. There is not a case to be found, where a court of law takes notice of a lis pendens in another court. The bill in chancery was filed on the thirteenth, and the judgment of Hill and Stebbins docketed on the seventeenth day of February, 1818. There is no proof that they had notice of the suit before their judgment was entered. The filing of the bill was not notice. The lis pendens begins from the service of the subpoena ; (1 Johns. Ch. R. 576; 2 P. Wms. 482; 3 Atk. 392;) and such service was not shewn.

The parol evidence that the deed from Webb was not delivered, ought not to have been received, as it contradicted the written instrument signed by both parties, averring the delivery. (1 Phil. Ev. 480. 3 Johns. R. 506. 2 Johns. Ch. R. 557.) Even the admission of a party cannot be shewn to contradict a written instrument. (5 Cowen, 485.)

J. A. SPENCER, for plaintiff. The defendant cannot claim under the [483] VOL. I.-35