More v. Deyoe , 29 N.Y. Sup. Ct. 208 ( 1880 )

Bookes, J.:

A difficulty seems to exist in this case, which must, as we think, ■control its decision on this appeal, growing out of the rejection of ■evidence offered by the defendants on the trial. However, before ■considering this difficulty, we should examine the questions urged upon our attention by the defendant’s counsel, which go to the ■ entire right of act/ion ¡ for if the action be not maintainable by the plaintiff at all on the facts proved, the ruling of the referee in the rejection of evidence becomes wholly unimportant; and the case, ¡should be put at rest on other grounds.

The action, ejectment, was commenced originally by Taylor More, the husband of the present plaintiff; and issue was joined between the parties by the service of answers by the defendants-respectively. Thereupon the plaintiff died, having made a valid will by which he devised to his widow, the present plaintiff, one-third of his real estate, and to his minor children, named in the-title of the action, the remaining two-thirds. The action was then, by order of the court, revived and continued by the present plaintiff in her own name, for the recovery of the third devised to her, and also for the recovery of the two-thirds as guardian in socage of" her infant children. The defendants thereupon put in an amended answer; but interposed no specific objection to the right of the-plaintiff to recover, on the ground that the action could not be revived and continued by her as to the right of the infant children. The case then may be considered as if originally brought by the plaintiff in her own right as to one-third of the premises, and asgua-rdian in socage of the children as to the remaining two-thirds.

It is urged that the action cannot be prosecuted by the plaintiff' as to the two-thirds devised to her children. This objection wedeern untenable. This is clearly so, if we hold that the case stands-the same as if brought by the plaintiff, as guardian in socage, as regards the two-thirds owned by the children. TJie mother, as. guardian in socage of her infant children, may maintain ejectment to recover the possession of their real estate against a party unlawfully withholding it against her right of occupancy. A guardian in socage has the custody of the land of the infant, and may maintain ejectment against one wrongfully in possession. (2 R. S., 6 ed., 1092; 3 Id., 169; Holmes v. Seely, 17 Wend., 75; Beecher v. Crouse, 19 Id., 306; Seaton v. Davis, 1 N. Y. Sup’m. Ct. [T. & C.], 91; Bartholomew v. Lyon, 3 Id., 771; Cagger v. Lansing, 61 N. Y., 417.) As the issues were made on the pleadings, the case-stood for trial as if originally commenced by the plaintiff in her own right for the part of the premises devised to her, and as-guardian in socage for her children, who, as was claimed, owned the remaining part.' The right to revive and continue the action in the name of the plaintiff, was determined by the order of revivor,, from which no appeal was taken, nor was any specific objection-taken by the defendants’ amended answers, thereafter interposed. But the right of revivor, as here granted, seems to be well authorized by statute. (3 R. S., 6 ed., 575; Code of Civ. Pro., § 757; James v. Bennett, 10 Wend., 540; Boynton v. Hoyt, 1 Denio, 57; St. John v. Croel, 10 How. Pr., 253.) The objection that the action was not maintainable by the plaintiff for the two-thirds devised to-the children, or could not be prosecuted by her as guardian in. socage, is not well taken. The action was also maintainable against; Gilbert and Maynard, joined with Deyo, the tenant in possession, under them. (Former Code, § 118; Code of Civ. Pro., § 447; Abeel v. Van Gelder, 36 N. Y., 513; Finnegan v. Carraher, 47 Id., 493.)

Nor is the objection that the defendants were to be deemed mortgagees in possession tenable. The defendants, Gilbert and Maynard, entered, and held under conveyance to them, from Elizabeth More, who, at the time of making the deed, owned the equity of redemption; and they so held under this deed until the foreclosure! of their mortgage, when they became purchasers. But if their mortgage was void for usury, as was found to be the fact by the; referee, they could not defend as mortgagees in possession, for then,, as to the plaintiff, they had no rights to be protected under it. In. that case the defendants could neither build up or maintain any right whatsoever founded upon it, as against any one entitled to insist upon its invalidity. This brings us to the question whether the plaintiff here might so insist.

The plaintiff claimed as devisee under Taylor More, a purchaser-on foreclosure sale under a valid mortgage. He held, in law, the-position of grantee from the mortgagor. Thus he and his deviseeswere in privity in estate with the mortgagor; and hence, as has-been repeatedly held, might insist upon and set up usury against a prior mortgage given by the same mortgagor, which was an apparent lien on the premises. Taylor More was not to be deemed a purchaser merely of the equity of redemption, as regards the holder of the usurious mortgage. But he acquired, by his purchase, the position which the mortgagor held at the time the lien of the valid mortgage took effect, with all the rights then pertaining to the mortgagor. One of those -rights was a right to insist that the prior mortgage was void for usury. Without citing and collating the many cases wherein this subject has been discussed, it is only necessary to ref cito the rule as at present settled, given in the note to the case of the Merchants' Exchange Nat. Bank v. Com. Warehouse Co. (49 N. Y. 635, 643). It is there stated that “ all privies to the borrower, whether in blood, representation or estate, may, both in law and equity, by the appropriate legal and equitable remedies and defenses, attack •or defend against a contract or security given by the borrower which is tainted with usury, on the ground of such usury, where such contract or security affects the estate derived by them from the borrower.” The correctness of this rule is also asserted iu a recent •case in the Court of Appeals. (Knickerbocker Life Insurance Co. v. Nelson, MS. opinion by Danforth, J.) Here, Taylor More, by his purchase at the foreclosure sale, under a valid mort.gage, was in privity in estate with the mortgagor, hence might (as might the latter) insist upon the invalidity of the prior mortgage for usury, both mortgages having been made by the same party. Nor do the defendants, Gilbert and Maynard, gain any advantage •over the plaintiff by their foreclosure. They were not bona fide purchasers without notice of the usury. (Jackson v. Dominick, 14 Johns. 435; Hyland v. Stafford, 10 Barb. 558; Bissell v. Kellogg, 60 Id., 617.)

It is urged that the plaintiff’s devisor, and those claiming through •or under him, are estopped from insisting upon the invalidity of the prior mortgage, because of certain transactions between the mortgagor and parties other than Taylor More. ' It seems that the mortgagor, W. P. More, after the giving of the mortgage to the defendants Gilbert and Maynard, and before giving the mortgage to the plaintiff, conveyed the premises to one A. P. Crary. The •deed to Crary was made subject to the former mortgage. A few months after the conveyance to Crary, it being seen that he could not consummate his purchase, the purchase was in effect canceled by the parties, and the deed to Crary, which had not been recorded, was surrendered and delivered back to the grantor W. P. More, and was destroyed, and after a few months (March 11, 1876), Crary formally quit-claimed the premises back to the grantor. This pro-needing between Crary and his grantor, W. P. More, to wit, the surrender and destruction of the deed to Orary, and the restoration •of the title by the latter to his grantor, W. P. More, was evidently Intended to restore the parties, as regards the premises in controversy, to the same condition as if the conveyance to Crary had never been executed, and in law and equity it had this effect. In effect it restored the grantor, W. P. More, to his original position in regard to the land in dispute. He could now insist upon the invalidity for usury of the prior mortgage given by him, the same as if he had never sold and conveyed to Orary; and being so situated he made the mortgage to Taylor More under which the plaintiff makes her title. Thus it seems that W. P. More had the right to resist the enforcement of the prior mortgage on the ground that it was usurious at the time he made the mortgage to Taylor More, and the latter, as well as the plaintiff who makes title under him, may also do the same, because in privity in estate with the former.

Again the referee refused to find, and we cannot say that his refusal was erroneous, in view of the evidence submitted, bearing •on this question, that Crary covenanted, or agreed in and by the deed to him from W. P. More, to pay off and satisfy the prior mortgage given to Gilbert and Maynard, and if Crary had so covenanted or agreed, it is difficult to see how that would, under the circumstances of this case benefit Gilbert and Maynard in their defense. (Knickerbocker Life Ins. Co. v. Nelson, supra.) Admitting that Crary would have been estopped by his covenant or agreement on his part, to pay off and satisfy the mortgage, so long as he held the premises, when he and W. P. More canceled that obligation, and the latter was restored to his former position as to the premises, his right to insist upon the usury was'also restored to him, if indeed it can be asserted that this right did not continue in him at all times. We are of the opinion that the plaintiff might insist that the mortgage under which the defendants make their claim was void for usury.

It is further urged that the foreclosure by Taylor More of his mortgage, under which the plaintiff makes title, was a nullity. This objection to the plaintiff’s right of recovery is put on the ground that the notice of sale was not published in the county of Delaware, in which county the mortgaged premises were situated.

The notice was published in the village of Deposit, situated partly in the county of Broome, and partly in the county of Delaware, and-in that part of the village situated in the county of Broome. ’ It is provided, in the charter of the village of Deposit, that “ all notices or other publications required by law to be published in the county of Delaware, and all notices or other publications, required by law to be published in the county of Broome, may be published in any newspaper printed in said village, and shall be regarded, and shall have the same effect as if the same were published in the counties of Delaware and Broome, or either of them.” (L. 1858, ch. 17, § 6, p. 31; L. 1873, ch. 330, § 6, tit Y., p. 479.) This provision covers the case precisely. But it is insisted that this section occiirring in the village charter is unconstitutional, being in violation of section 16 of article 3 of the Constitution, which declares that “ no private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.” The question here presented is not without some difficulties ; but we are of the opinion that the provision under examination does not come within the constitutional inhibition suggested. Yery manifestly it is not open to the mischiefs intended to be reached and corrected by this constitutional restraint upon legislation. There is no idea of surreptitious legislation connected with the provision here challenged. And indeed, the subject of it seems germane to village privileges and rights. It must be conceded that it was appropriate to provide, in the village charter, for all subjects and matters connected with the government of-the village, and its prosperity in the exercise of public business affairs. So industries might be promoted by appropriate provision in the charter, as a matter within the purview of legitimate legislation, having in view the prosperity and advancement of the citizens. Thus, it was held in People v. Briggs (50 N. Y., 553), that where the title of a local or private act expresses a general purpose or object, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act, and are germane to the title; and in this case Judge Churoh says: “It is not requisite that the most expressive title should be adopted, nor ¡should courts criticise too rigidly the details of a bill to find extraneous matter. Every presumption is in favor of the validity of legislative acts, and they are to be upheld, unless there is a substantial departure from the organic law.” This case is an instructive one on the subject under examination, and some of the cases •cited there are in point. (See also Harris v. People, 59 N. Y., 599.) The cases bearing on the question here presented are too numerous to admit of citation, but we think they do not establish .a rule rendering the provisions of the charter here challenged unconstitutional and void.

We are then brought to the conclusion that there is no insuperable difficulty in the way of a recovery by the plaintiff, on the facts proved: so be it, that the mortgage under which the defendants make their claim is, in point of fact, invalid for usury. This •question of fact the referee found against the defendants. After a careful examination of the proof bearing on this point, we cannot .adjudge that his finding is without evidence 'in its support, or that it is so clearly against the weight of evidence that we can hold it erroneous in law. In such case we must respect the conclusion of the trial court. (Roosa v. Smith, 17 Hun, 138; Roe v. Boyle, 7 Weekly Dig., 566.) We do not intend to be understood that, upon .a retrial, the question of usury would not be , open to the jury or referee upon the same evidence now submitted. Perhaps on this •evidence, and such other as shall be given on a retrial, a different conclusion maybe reached. We here give no intimation which ¡should control or affect a future hearing on the merits on this issue •of fact. What we mean to say is this: that it was'for the trial •court to weigh, apply and construe the evidence, and, inasmuch as we cannot with reasonable certainty see that a wrong conclusion .has been declared, we cannot adjudge it erroneous. We are not at liberty, as the case is presented on this appeal, to adjudge the finding contrary to the truth.

We must now examine the rulings of the referee on the rejection ■of evidence offered by the defendants.

The plaintiff gave evidence tending to show that the annual use •of the premises in controversy was worth $500; the taxes to be paid by the lessee. The defendant put in evidence the lease from Gilbert and Maynard to Deyo, under which the latter occupied, in which lease the rent was fixed at $525 for the year (lacking a few days), the lessee to pay the school and road taxes, and the lessors to-pay all the town, county and State tax levied on the premises. The defendants then put this question to one of the lessors: “"What are the net receipts under this lease ?” The question was-objected to and rejected. The defendants then offered to prove that the actual receipts of the rents and profits from the farm, after paying taxes and expenses, were only $325 annually, since the action was commenced. The offer was objected to and was also rejected. These rulings, in our judgment, were erroneous. As an item of evidence on the question of the value of the use and occupation of the farm, it was competent to prove what sum was actually received from it as rent. This, of course, was not conclusive evidence of the value of the use of the farm, but it was competent evidence on the subject. The agreed rent would be strong evidence of the real value of the use and occcupation. (Cary v. Gruman, 4 Hill, 625.) It is from prices offered, agreed upon and paid, that the value of property or of its use is to be determined, and such prices may be given in evidence to test the correctness and fairness of opinions. Indeed, opinions are made up either from public or private sales and contracts, as regards the value of property. Thus it is, that both public and private sales of property are admissible in evidence-to determine its true value. (Smith v. Griffith, 3 Hill, 333; Dixon v. Buck, 42 Barb., 74; Campbell v. Woodworth, 20 N. Y., 499; Gill v. McNamee, 42 Id., 44; Wells v. Kelsey, 37 Id., 143; Harrison v. Glover, 72 Id., 451; Hoffman v. Conner, 76 Id., 121.) The defendants then had a right to show the actual net receipts-under the lease, and the offer to show that the actual receipts of rents and profits from the farm did not, in fact, exceed $325, was-improperly rejected. It is suggested that the lease was made between the defendants. This fact was ground of criticism, but not ground for the absolute rejection of the evidence. It should be here remarked that this suggestion of the plaintiff’s counsel is answered by the facts in several of the cases cited. That the rejection of this evidence may have been injurious to the defendants, is apparent from the amount allowed against them, as damages for the use and occupation of the premises.

The defendants were also refused answers to the following questions put to Mr. -Gilbert, to wit: “ At the time you made the arrangement with More, did you believe the bonds were worth their face ? Did you at the time of making this arrangement have any intention of violating the usury laws ?” Such ruling was, in our opinion, erroneous. The alleged usurious agreement was made with Mr. Gilbert, and consisted in an asserted overestimate of railroad bonds which made part of the consideration of the mortgage- ■ debt. It must be borne in mind that there was no specified sum. of money offered or demanded as a bonus for the loaning of the money in this case; and in this consists the difference between the ease in hand and Fiedler v. Darrin (50 N. Y., 437). Where a bonus' is specified and agreed upon between the parties, whether of money or other valuable thing, the case is not open to the admission of evidence of a purpose or intent to violate the law, for in that case the law itself declares the unlawful intent. Such was the Fiedler v. Darrin case, cited. But where the act is equivocal in character, and the intent is directly in issue, it may be ascertained by direct questions, as was sought to be done in this case. Not that the answer would be absolutely conclusive, but it would be an item of admissible evidence. Such was the ruling in Thurston v. Cornell (38 N. Y., 281), a usury case. This case, too, was referred to with approval in Fiedler v. Darrin, supra. (See also Black v. Ryder, 5 Daly, 304.) The counsel in his brief in this case states the rule correctly, thus: that where there is a direct or express agreement to take money, evidence of the intent of the parties is not admissible', but where the transaction is equivocal, and the illegality of the act depends upon the intention of the parties, the intent must be ascertained in order to characterize the act, and in such case it is admissible to allow the party to testify as to his intention. This statement of the rule is fully sustained by the decisions in each of the cases above cited. Here the bonds were transferred at par value, and such value constituted part of the consideration of the mortgage. It was insisted that the stipulated price of the bonds far exceeded their real value: and their transfer at such price was but a device and cover for usury. So the question was, whether the sale of the bonds was Iona fide at the agreed price, or whether the sale was a mere device for obtaining unlawful interest. The question then resolved itself into one of intent. This being so, the defendants were entitled to an answer from the party in that regard. As was said in Thurston v. Cornell (supra), the answer of the party would not be conclusive, but would be proper “ to be weighed and considered with other evidence in the case, in passing upon the question of actual intent.” The questions referred to were improperly overruled.

It follows that there must be a new trial.

Judgment reversed, new trial granted, costs to abide the event, and reference discharged.

Follett, J., concurred.