Page images
PDF
EPUB

excecuted sale of specifio chattels the seller is not liablo as to its quality or fitness, unless it be shown that the for defeots in the quality of the article in the absence manufacturer failed to use reasonable and ordinary of fraud or express warranty; where the purchaser is care in selecting it. The rule is thus stated by Mr. not deceived by any fraudulent misrepresentations Benjamin: “Where a known), defined and designated or concealment on the part of the seller, and the buyer article is ordered of a manufacturer, although it is demands no warranty, the law presumes that he exer stated to be required by the purchaser for a particular oised his own judgment, and the doctrine of careat

purpose, still if the known, defined and designated aremptor applies. A principal exception to this rule is ticle be actually supplied, there is no warranty that it found in cases of executory contracts for the man shall answer the particular purpose intended by the ufacture and sale of goods in futuro, where from the buyer." Benj. Sales, $ 657, citing Chanter v. IIopkins, nature of the case no examination of the article is pos- | 4 M. & W'. 399; Ollivant v. Buyley, 5 Q. B. 288, and nusible; or in cases where the contract is such as to show merous other English and American cases. See also that the duty and responsibility of ascertaining and on the subject generally ALBANY LAW JOURNAL of judging of the quality are thrown upon the seller, as October 11, 1881. where he undertakes to furnish an article for a par In lloe v. Sunborn, 21 N. Y. 552, the defendant purticular specified purpose.

chased of the manufacturer a quantity of circular saws, In Story on Sales, sec. 371, it is said: “Upon an ex: one of which proved to be worthless by reason of a ecutory contract to manufacture an article or to fur- defect in the iron of which it was made. The seller vish it for a particular use or purpose, a warranty will warranted the saws to be “good saws and of good be implied that it is reasonably fit and proper for such quality.” purpose and use, as far as au article of such a kind can In a very interesting opinion by Mr. Justice Selden, be."

in which he discusses the basis upon which implied To the same effect is 1 Pars. Cont. 585 (side); Benj. warranties rest, arguing that they are based upon the Sales, 645, and such warranty includes not only the knowledge of the seller, either actual or imputable to workmanship, but also the quality and soundness of the him by law, as to the quality of the thing sold, he material of which the thing is made, as well as all la states as the result of his investigations the rule to be tent defects not known to the purchaser, whether this: “The vendor is liable for any latent defect not known to the seller or not. 1 Pars. Cont. 586; Benj. | disclosed to the purchaser, arising from the manner in Sales, 644 et seq.

which the thing was manufactured; and if he knowIf therefore this were the case of an ordinary pur- | ingly uses improper materials he is liable for that also; chase of a chattel from the manufacturer, or if it had bụt not for any latent defect in the materials which been an order on appellant to manufacture the boilers he is not shown and cannot be presumed to have in question without specifying the kind or quality of known." material to be 11sed in their construction, but the or This decision, it will be noticed, was in a case where der had been given in solo reliance on the judgment the particular kind of material bad not been desigand skill of appellaut as to the quality of the material, nated by the person giving the order for the saws, and the law would have inplied a warranty both as to the yet it was held that there was no implied warranty workmanship and tbe soundness of the iron actually that the material of which the saws were made was used; and this brings us to the inquiry as to how far free from latent defects, in the absence of proof that appellant's liability as upou an implied warranty is as the rendor knew or might have known by the exercise fected by the circumstances that the kind of iron of of reasonable care of such defects; that such warranty which the boilers were to be made was specified in extended only to an undertaking by the vendor that appellant's proposal. The proposal having been ac the saws were free from any defects resulting from cepted by appelleo becamo a contract between the their improper construction. parties binding alike upon each in respect to all its In the subsequent case of Dounce v. Dou, 64 terms and conditions. One of its provisions required N. Y. 111, IIve v. Sunborn is cited with approval. But appellant to make the shell of the boilers out of a des a case entirely analogous in its facts to the present is ignated brand of iron. The furnishing of “C. II. No. Cunningham v. llall, 4 Allen, 268, which was a suit 1 iron” became an indispensable condition of the con- against a ship-builder to recover damages for a breach tract. Appellant could no moro dispense with the of contract in building and completing a ship, which kind of iron designated without violating his contract when partially built the plaintiff agreed to purchase. than he could change the size or dimensions of the It was mutnally admitted by the parties that upon a boilers. It was shown upon the trial that there was a true construction of the contract, which had been nebetter quality of iron, known as charcoal hammered gotiated through the medium of a written correspond"flange" iron, but by the terms of tho contract appel ence, the defendant was on the one hand bound, and laut could not use it if he desired to.

lle could per

on the other entitled, to use pine plank in planking the form his contract only by using the kind of iron agreed ship, and that pine plank were used for that purpose. upon.

l'pon the trial the plaintiff introduced evidence tendIndependent of any adjudications on the subject, it ing to show that the vessel began to leak immediately would seem most unreasonable to hold appellant lia- upon sailing, and that the leak oontinued to increase ble as upon an implied warranty of the sufficiency of until her arrival at the port of destination, when they material designated by appellee himself in the absence were found to be so defective as to require that they of proof showing that appellant knew, or by the uso should be taken out and replaced by new. of ordinary diligence in selecting the particular plates The defendant was allowed to introduce evidence used might have discorered, they were defective. The tending to show that pine planks are subjected to lacases bearing upon the subject of implied warranties tent defects, called “heart-shakes," formed in pine are not altogetber harmonious, but we think both rea trees during their growth, and that it is sometimes imson and justice, as well as the weight of authority, sup- possible to discover these defects by the exercise of port the proposition that where one orders an article reasonable care and skill in adapting and fastening of a manufacturer and designates a particular kind of such planks to the frame of a ship. material out of which the article is to be made in The court below instructed the jury that by the whole or in part, such material nou being made by the terms of the contract the materials to be used were to manufacturer himsell, if the manufacturer use the be reasonably. sit and proper for such a ship, and that designated material, the law will not imply a warranty this meant that they should contain no defect which

could be discovered by the exercise of reasonable care iron agreed upon, and tested the boilers by bydrostatic and skill, but did not extend to natural defects in tim pressure to 125 pounds to the square inch, as stipulated ber which are incident to its process of growth, and in the contract. From an inherent defect in the iron which cannot be discovered by the exercise of such caused by improper rolling when made, and which skill and care.

only developed by use, the boiler proved defective. This ruling was approved by the Supreme Court on The plaintiff appears to bave used all reasonable care appeal. In delivering the opinion of the court, Mer and skill in selecting the iron, and was guilty of no rick, J., said: “It is undoubtedly now a well-settled fraud. rule that if an article be ordered of a manufacturer Under this state of facts we are of opinion that the for an especial purpose or a particular use, and he court below erred in holding and instructing the jury agrees to furnish it, and nothing is said by the that the plaintiff was liable as upon an implied warparties as to the materials of or the manner in wbich ranty. it shall be made, there is an implied warranty on his The judgment must be reversed, and the cause repart that it shall be fit for that use. * But if an manded for a new trial. article or fabric in the particular line of his profession

Reversed and remanded. be ordered of a manufacturer for a special and desigmated purpose, and the parties agree that it shall be constructed of a certain kind of material, but the se NEW YORK COURT OF APPEALS ABSTRACT. lection of the particular articles to be used, and the way and manner of using and adapting them to the PARTNERSHIP-LIMITED — PAYMENT OF CAPITAL, fabric, are left to the choice and the judgment of the

XOT IX CASH-ESTOPPEL-JUDGMENT IN REM-BANKlatter without any special stipulations relative thereto,

RUPTCY-ADJUDICATION BINDING ONLY ON PARbe will not in that case be liable for any loss or damage TIES.—(1) Where at the time of the filing of the certifiwhich may result from the imperfection of or natural cate and affidavits for the purpose of forming a limited defects in that kind of material. If the defendant in his

partnership under the statute (1 Rev. Stat. 763, $ 1 et contract with the plaintiffs bad simply agreed that he

seq.), the special partner had not in fact paid in the would finish and complete the ship then on the stocks

sum to be contributed by him, but had given his check and deliver it so finished to them at a stipulated price, therefor payable thereafter, held, that although the there would have been an implied warranty on his check was duly paid, the misstatement rendered the part that it should be, both as to the workmanship special partner liable as a general partner for all the and materials used in its construction, fit for the ser

engagements of the firm. Durant v. Abendroth, 69 vice for which it was sold. But the contract was in N. Y. 148; S. ('.. 25 Am. Rep. 158. A judgment in rem fact modified by a stipulation that it should be planked of a domestic as well as a foreign court, where juriswith pine plank. Cuder this modificacion, what would diction over the person of a party has not been obotherwise have created a general liability, the clefendant tained, except as to his interest in the property afwas bound only to use reasonable care and skill in the

fected by the judgment, is not conclusive or bluding selection and preparation in that kind of plank, and

upon him by way of estoppel in another action. (2) they could afterward only hold the defendant respon The general rule as to proceedings in rem is that when sible for damages resulting for his failure to exercise the property is within the jurisdiction of the court reasonable skill and care in the selection of the plank pronouncing the judgment, whether a domestic or which he used."

foreign tribunal, whatever the court settles as to the The court cites with approval lloc v. Sunborn, supra, right or titlo, or whatever disposition it makes of the and other cases to which it is wnecessary to here property, is valid in every country. Story Conf. L., refer.

$ 59:2; 1 Greenl. Ev. 5:13; 2 Wend. 64. But it is not uniIn Beck v, Sheldon, 48 N. Y. 365, it was held that

versally settled that the judgment is conclusive as to where a manufacturer of goods which are known in the facts or allegations on which it is founded. In the market, and the different qualities distinguished some of the States of the Union, and especially in the by numbers, contracts to sell and deliver goods from State of New York, though there are decisions to the his factory of certain numbers, in a suit upon the con contrary in the court of England and in the United tract it is not material whether the goods delivered aro States, it has long been settled that foreign judgments of equal or inferior quality to those of corresponding in rem are conclusive only as to the property involved, numbers manufactured at other factories, or whether

and may be controverted as to all the grounds and inor not they are merchantable. If they are the mum ciciental facts on which they profess to be founded. bers contracted for as manufactured at the contractor's Vandenheuvel v.United Ins. ("0., 2 Johns.Cas.451; refactory the contract is fulfilled.

versing S. C., 1:27. So the judgment even of a neighA leading English case on the subject of implied boring State on foreign attachment, if the defendant warranties is Jones v. Clarke, 3 Q. B.197, referred to by has not appeared and litigated, is treated as a proceedMr. Benjamin, in which the court, upon an extended ing in rem and not personally binding on the party, as review of the authorities, classified the cases on the a decree or judgment in personam. It only binds the subject, and one class is where a defined article is or property seized or attached in the suit. 1 Greenl. Ev., dered of a manufacturer, although it is stated to be § 5-12, and cases cited ; Story ('onfl. L., $ 519. And it is required for a designated purpose, if the thing ordered not conclusive evidence of the debt in another suit bebe furnished, there is no warranty that it shall answer tween the same parties. Phelps v. Holker, 1 Dall. the purpose intended by the buyer. Seo cases there 251; Betts v. Death, Add. 265. In such cases the accited. See also Kellogg Briilge. Co. v. llamilton, 110 tion is regarded, as to the absent defendant, as a proU. S. 108, whero is found at least an indirect recogni- ceeding in rem (Schwinger v. Iickok, 53 N. Y. 280), tion of the same principle.

and it would be contrary to all principle to hold him Numerous other cases of like import to the foreg() personally bou, as to any fact determined in such a ing might be referred to, but as they are cited in the proceeding in his absence, so that he should be forerer foregoing cases, it is unnecessary to refer to them here. precluded from denying it in a subsequent litigation Suflice it to say that in suel examination as we have concerning matters other than his interest in the propbeen able to make we have found no cases in conflict erty affected by the judgment. Certain creditors of with those above cited.

the firm presented a petition to the register in bank. In the present case the plaintiff used the brand of ruptcy, setting forth that two days before the filing of

the petitiou in bankruptcy, certain other creditors had proved July 23, 1866, ch. 219 (14 St. 218, “to quiet land agreed to sell their claims to A. at twenty-five per titles in ('alifornia," but that act was not referred to ceut, had afterward proved their claims in bankruptcy in the complaint, and besides it purports only to conand then assigned them to A. The petitioners asked firm the title of the State, which in this case is perfect that said claims be disallowed on the ground that A. without it. No attempt is made in that act to provide was a special partner, and that under the statute (1 for the settlement of the rights of conflicting clainRev. Stat. 720, $ 23) no special partner could, save as auts under the State. Congress contented itself with excepted in the statutes, claim as creditor until the the confirmation of the State's title, and left all who claims of all other creditors were satisfied. The regis- claimed under that title to their remedies in the ter overruled the poiut, holding that in respect to the courts or other tribunals provided by law for that purassigned claims, A. stood in the position of his assign- | pose. California v. Juckson. Opinion by Waite, ors, and was only a creditor as their representative. C. J. This decision was sustained by the Bankruptcy ('ourt. [Decided Nov. 7, 1881.] Held, that conceding the decision to be in effect an ad

INTERNAL REVENUE-INFORMATION FOR FORFEITjudication that A. was only a special partner, it was

URE-GENERAL VERDICT G001).-Upon the trial of innot binding outside of the bankruptcy proceedings formation under section 3372 of the Revised Statutes upon creditors who were not parties to the application. the verdict was returned in this form: “We, the jury, See Hayes v. Heyer, 35 N. Y. 326-330; Imes v. Lan

find a verdict for the government, evaluating the sing, 7 Paige, 583. It is argued that proving the debt goods and machinery seized at a sum of $1,000.” The against the estate of the general partners, and receiv

claimant moved in arrest of judgment that sereral of ivg a dividend thereon, were equivalent to obtaining a

the counts were insufficient, and that the verdict was judgment thereon against the general partners alone, general upon all the counts, and was rague and uncer. the effect of which would have been to discharge the

tain, and not responsive to the issue. The motion was other partner. U.S.v. Letller, 11 Pet. 86, 101 ; Robert- overruled, and judgment rendered for the United sou v. Smith, 18 Johus. 459. The rule, if still subsist

States, and the claimant sucd out a writ of error. ing, that the recovery of a judgment against some of

Informations under the revenue laws for the forfeiture the partners of a firm consisting of more, is a bar to a

of goods, seeking no judgment of line or imprisonment subsequent action against all the partners, would be

against any person, are not strictly criminal cases, in wholly inapplicable to the present case. The reasons

which the decisions of the Circuit ('ourt are final, unfor that rule were, first, that a judgmeut against a por

less i division of opinion is certified; but they are tion of the partners merges the debt as to them, and

civil actions, of which this court has jurisdiction in thus destroys the joint indebtedness; and second,

error, without regard to the sun or value in dispute. that there being already a judgment against some of

Rev. Stat., S 699; Pettigrew v. United States, 97 U. S. the partners, and they being necessary parties to the

385. Yet as has been expressly adjudged, they are so second suit, a second recovery against all would result far in the nature of criminal proceedings as to come in two judgments against the same persons for the

within the rule that a general verdict upon several same debt. It is obvious that neither of these reasons

counts, seeking in different forms one object, must be can apply to the case of merely proving a debt against upheld if one count is good. (lifton v. Cnited States, the estates of some of several joint debtors. It is

4 How. 242, 250. As one of the comits in this case is worthy of note however that none of the cases rest

admitted to be good, it is unnecessary to consider the upon the ground here assumed by the respondent, that objections taken to the other counts. The verdict, recovering a judgment in an action against only two

though expressed in bad English, clearly manifested of three joint debtors estops the creditor from after

the intention and finding of the jury upon the issue ward claiming that the third was also jointly liable for

submitted to them, and the court rightly gave judgthe same debt. Durunt v. Abendroth. Opinion by

ment upon it. Rev. Stat., S 951; Parks v. Turner', 1:2 Rapallo, J.

How. 39, 46; Lincoln v. Iron Co., 103 l'. S. 112. Sny[Decided Oct. 7, 1881.]

der v. United States. Opinion by Gray, J.

[Decided Nov. 17, 1884.] UNITED STATES SUPREME COURT AB

EVIDENCE-COMPETENCY OF WITNESS-NEW YORK STRACT.

CODE (IVIL PROCEDIRE, SEC. 831–1". S. R. S., SEC.

1921-INSURANCE-Q!'ESTION AS TO DISEASE.— (1) The JURISDICTION-AMOUNT IN DISPUTE.—The jurisdic- provision in the New York Code of Civil Procedure, tion of the Supreme Court for the roview of tho judg- $ 834, that “a person duly authorized to practice physic ments and decrees of the Circuit Courts, in so far as

or surgery shall not be allowed to disclose any infor

mation which he acquired in attending a patient in a it is affected by the $5,000 limitation, depends on the value of the matter in dispute in the Supreme Court, professional capacity, and which was necessary to ena

ble him to act in that capacity,” is obligatory upon and it is the actual matter in dispute, as shown by the

the courts of the l’nited States sitting within that whole record, and not the ai dumnum alone which

State in trials at common law. That section provides goverus. Hilton v. Dickinson, 108 L. S. 165. Opinion

that “a person, duly authorized to practice physic or by Waite, C. J. [Decided Nov. 7, 1884.]

surgery, shall not be allowed to disclose any informa

tion which he acquired in attending a patient in a proJURISDICTION - GRANTOR'S TITLE FROM UNITED |fessional capacity, and which was necessary to enable STATES ADMITTEI), ACT OF 1866, (1. 219.-In a suit for him to act in that capacity." It is not, and could not the recovery of lands where both parties claim under well be seriously questioned, that the evidence exclua common grantor, whose title from the United States ded by the ('ircuit ('ourt was inadmissible under the is admitted, the Supreme Court has no jurisdiction rule prescribed by that section. Grattan r. Metrofor the review of the decisions of a State court upon politan Life Ins. ('0., 92 N. Y. 274; Same v. Sanie', 80 questions relating only to the title acquired by the ser id. 281; Pierson v. People, 19 id. 124; Edington v. eral parties under their respective grants from the Etua Life Ins. ('o., 77 id. 564; Edington v. Mutual common grantor, and which are not in themselves of Life Ins. ('0., 67 id. 185. But it is suggested that truth a Federal character. Romie r. ('asanova, 91 L. S. 3379, and justice require the admission of evidence which and McStay v. Friedman, 92 il. 723. Some reliance the statutory rule, rigorously enforced, would exclude, was had in the argument on the act of ('ongress ap and that it can be admitted without disturbing there

lations of confidence properly existing between physi SHIP AND SHIPPING-MARITIME DEBTS-FIRST ATcian and patient; that it would not afflict the living TACEMENT GIVES NO PREFERENCE-OTHER CREDITORS nor reflect upon the dead, if the physician should tes MAY INTERVENE.—By the maritime law the creditor tify that his patient had died from a fever or an affec- first filing a libel and arresting the vessel does not tion of the liver; and that the rule, as now understood thereby acquire the right to hare his debt paid in full and applied in the courts of New York, shuts out, in to the exclusion of other creditors whose debts are of actions upon life policies, the most satisfactory evi the same rank and equal merit, and who intervene dence of the existence of disease and of the cause of and prove their debts before or at the time a final dedeath. Those considerations, not without weight, so cree in the suit first brought is rendered. In 2 Pars. far as the policy of such legislation is concerned, are Ship. & Adm., it is said: “If the different demands proper to be addressed to the Legislature of that State. are of the same nature, priority in beginning the But they cannot control the interpretation of the stat suit will not give priority in payment if the other ute, where its words are so plain and unambiguous as demands are brougbt to the attention of the court to exclude the consideration of extrinsic circum- before a decree in the first suit brought is renstances. Since it is for that State to determine the dered.” The rule that a creditor who institutes the rules of evidence to be observed in the courts of her first suit does not thereby acquire priority of right to own creation, the only question is whether the Circuit payment over other creditors of the same class who Court of the United States is required by the statutes have been guilty of no laches, is supported by the folgoverning its proceedings to enforce the foregoing pro lowing cases: The Paragon, 1 Ware, 330; The Amervision of the New York Code. This question must be ica, 16 Law Rep. 264; The Fanny, 2 Low. 508; The E. answered in the affirmative. (2) By section 721 of the A. Barnard, 2 Fed. Rep. 712; The ('ity of Tawas, 3 Revised Statutes, which is a reproduction of the 34th id. 170; The J. W. Tucker, 20 id. 1.29; The Superior, 1 section of the Judiciary Act of 1189), it is declared that Newb. Adm. 186. And to the same general effect: “the laws of the several States, except where the Con- The Eolian, 1 Bond, 207, 270; The Fort Wayne, id. stitution, treaties or statutes of the United States 476, 490; The Kate Ilinchman, 6 Biss. 367; The Phebe, otherwise require or provide, shall be regarded as rules 1 Ware, 360. In support of his motion the libellant reof decision in trials at common law in the courts of the lies on Ben. Adm. (24 ed.), S 560, where it is said : "In United States in cases where they apply.” This has claims of the same rank, the one first commenciug his been uniformly construed as requiring the courts of proceedings is preferred in the distribution. The the Union, in the trial of all civil cases at common party first seizing holds the property against all other law, not within the exceptions named, to observe as claims of no higher character." And we are referred to rules of decision, the rules of evidence prescribed The Globe, 2 Blatchf. 427, note; The Adele, 1 Ben. 309; by the laws of the States in which such courts are Woodworth v. Ins. Co., 5 Wall. 87. The last case cited held. Potter v. National Bank, 102 1'. S. 163; Vance stands on grounds of its own, and has no application v. Campbell, 1 Black. 1.27; Wright v. Bales, ? id. 535; to the case at bar. By the maritime law the creditors McNeil v. IIolbrook, 12 Pet. 81; Sims v. Ilundley, 6 of the same rank have an equal lien or privilege on the IIow. 1. (3) To the question, in an application for in vessel. An eager and grasping creditor ought not to surance upon life, whether the applicant had ever had hare it in his power to destroy this equality of privilthe disease of " affection of the liver," the answer was ege, and obtain a preference, by the mere act of in“No.Held, that the answer was a fair and true one stituting the first suit to enforce the lien. Such u rule within the meaning of the contract, if the insured had would be unjust to the other creditors, prejudicial to never had an affection of that organ which amounted the owners of vessels, and injurious to the interests of to disease; that is, of a character so well defined and commerce. It would tend to hasten and foster litigamarked as to materially disturb or derange for a time tion, and would introduce into the maritime law that its vital functions; that the question did not require unseemly struggle between creditors themselves prohim to stato every instance of slight or accidental dis- duced by the rule of law which gives the preference to orders or ailments affecting the liver which left no the creditor first attaching. We know the rule at law trace of injury to health, and were wattended by sub-giving the preference to the first attachment, in its stantial injury or inconvenience or prolonged sufler- practical operation, is often oppressive on debtors and ing. Conn. Mut. Life Ius. ('o. v. Union Trust Co. unjust to creditors. For these reasons it has been ()pinion by Harlan, J.

abolished in a good many States, and the first attach[Decided Nov. 17, 1884.]

ment made to perform the office, in some measure, of a proceeding in insolvency or bankruptcy, for the

equal benefit of all the creditors proving their debts UNITED STATES (IRCUIT AND DISTRICT within a limited time. The tendency of legislation COLRT BSTRICT.*

and the courts is toward the adoption of rules to pre

vent preferences. But the injurious consequences of MORTGAGE FORECLOSURE-ASSIGNEE OF MECHANIC's rewarding the most exacting creditor with a preferLIEN-NECESSARY PARTY-PURCHASER AT SALE-UN

ence would, for obvious reasons, be much greater in DER MECHANIC'S LIEN CANNOT BE EJECTET).--11) An admiralty than they are at law. Dist. Ct., E. D. Ark., assignee of a mechanic's lien is a necessary party to a

()ct., 1884. The Lady Brone. Opiniou by Caldsuit to foreclose a mortgage given after the lien com

well, J. menced, although the mortgagee had no knowledge of

SHIP

SHIPPING COLLISION OBSERVING the existence of the samo and the mortgage was filed

LIGIITS-MUTUAL FAILT-XEGLIGENCE DECKHAND, of record before the commencement of statutory pro

INJURED)-SEVERAL LLIBILITY.-A tug is bound to ceedings to enforce said lien. (2) A purchaser at the sale of such a mortgage by advertisement acquired no

keep her colored lights in such a position that her tow

will not obscure them, as respects ressels at a distance right to eject a purchaser at a salo made under final decree in proceedings to enforco tho mechanic's lien, requiring the notice which the colored lights are dethe mortgagee under above circumstances being in the signed to afford. Whero the Tug T. had ou her star

board side the barge M. in tow, loaded with railroad position of a subsequent incumbrancer to the mechanic's lien holder. (ir. ('t., 1). Vimn., (ct., 1881. Itkins

cars, partly sheltered by a narrow foro and aft roof

called an umbrella, which was of such height as to obr. Volmer. Opinion by Nelson, J.

scuro the tug's green light as she was going up the *Appearing in 21 Federal Reporter.

North river, and steamer II., crossing the river to the

AND

are

[ocr errors]

as

northward and seeing no colored light, supposed the vail in Indiana against an assignee of a judgmeut who T. was going down river instead of up river, and pays value and takes the assignment in good faith. ported so as to go astern of the T., as she supposed, Flanders v. O'Brien, 46 Ind. 281; Iluffman v. Copelaud, but too late discovered the error and came in collis- 86 id. 224, and cases cited. The complainants however ion, held, that the collision was caused in part by the sue,

not as assignees, but as judgment plaintobscuration of the green light, for which the T. was iffs, and

therefore subject to the

genresponsible. Held, that the H, was also in fault for eral doctrine, far

it is pertinent to want of any proper lookout, when going at the rato of the question presented; but in my judgment it has thirteen miles in crossing the river, as such a lookout | little or no application. The policy of the recording might bare discovered that the T. was going up river acts is not involved or material to be considered, exin time for the H. to avoid her. A deck hand on the cept incidentally, because the deeds in controversy are H. having beeu injured by the collision without his not assailed for want of registration, but for alleged own fault, held, that he had a several claim for his fraud in their execution. The attack is not made whole damages against the T., and the T. being re under the recording act quoted from in argument, but sponsible, and having a right to indemnity from the under another section (Rev. Stat. 1881, § 4920), which H. for one-half what the T. must pay by reasou of the declares that all conveyauces of lands made with incommon fault of both vessels, held, that the usual de. tent to defraud creditors“ shall be void as to the percree might go against both, without considering the sons sought to be defrauded;” and only as it may afquestion whether the deck hand, as a fellow laborer, fect the rights of parties under this act can it be macould have maintained a separate suit against the H. or terial to consider the law concerning the registration her owners alone. It is unnecessary to consider the of deeds. The question presented therefore is whether question which has been raised by counsel, whether or not, under the facts alleged in the bill, the respondthe deck hand on board the H., is precluded írom re ents who demur can claim title under unrecorded covering any damages of her, or of her owners, by deeds, of which they had no knowledge when they reason of any fault in her navigation, on the ground purchased, to the injury of the plaintiffs, as against that he was a fellow-servant of the pilot in charge. The whom the deeds were in fact fraudulent and void, or T., being iu fault, is answerable for the whole damage voidable. As against a prior wortgage or deed honcaused him, and the liability of the T. is not a mere estly made to a good-faith purchaser, the general lien joint liability with the H., though both are found in of a judgment must unquestionably yield; but this by fault. The T., for its tort, is severally liable for the no means supports the proposition involved the whole damage. The Atlas, 93 U. S. 302; Chartered facts presented, that one may take a title apparently Mercantile Bank v. Netherlands, etc., 9 Q. B. Div. 118; perfect of record, and which seems of record to be, as 10 id. 521, 546. The defense that he was a fellow-la- | in fact by law it is, subject to the lien of a judgment, borer with the pilot of the H., even if possible to the and afterward upon learning that fraudulent deeds H., would be no defense to the several liability of the had been made, be allowed to claim title through them T. In having to pay for his injuries, the T. sustains in order to defeat the lien of the judgment, though at damages by the collision to that extent, as much as if the time of his purchase he had no knowledge of the the injury were to cargo on board the T. or the H., existence of the deeds, and supposed he was getting for which she was bound to pay ; and as this injury the title as it appeared of record. It is true that the arose from the fault of both vessels, the H. must owner of land, or one asserting title, is bound by the auswer over for half of what the T. is obliged to pay; contents and recitals of all deeds in the chain of titlo and the T. being answerable for the whole damage, which he claims. But it is not true, as I suppose, and has a right to require the H. to pay one-half of what has never been decided, that a purchaser is bound by she will be obliged to pay to him on account of the the contents of unrecorded and unknowu deeds which common fault of both. The Eleanora, 17 Blatchf. 88 were not essential to the chain of title as it appeared 105; The Hudson, 15 Fed. Rep. 162, 161; The ('anima, of record, or as otherwiso made known to him. It 17 id. 271, 272; The C. H. Foster, 1 id. 733. There is no often happens, as may well be supposed, honestly as evidence of any personal negligence on the part of the well as for fraudulent purposes, that titles after rardeok hand. He was not assigned to duty as lookout, ious mesne conveyances return to some prior owner, 80 far as appears, and he was apparently engaged in and if tho conveyances which constitute such a loopin other duties. It was not his business to leave the du the chain of title should, for any reason, have been ties assigned him and to act as lookout without orders. left off the record, it would be a startling proposition Dist. Ct., S. D. New York, July, 1884. Briggs v. Day. indeed that all subsequent grantees must take notice Opinion by Brown, J.

of their contents. Cnder such a doctrine, if not posiLIMITATION-RUNS FROM DISCOVERY OF FRAUDS

tively dangerous, the registry laws would certainly be

mado comparatively useless. Cir. Ct., D. Ind., Sept. 6, LIEN OF JUDGMENT-BONA FIDE PURCHASER-TITLE

1881. Jcalpine v. Hledyes. Opinion by Woods, J. THROUGE UNRECORDED DEED-RIGUTS OF PURCIIASER. -(1,The making of a deed to defraud creditors, and

[(1) See 24 Am Rep. 45, 517; 31 Eng. Rep. 7:23.- ED.] keeping it off of the record by all of the persons con. cerned in and coguizant of the transactions, combined with their purposed silence upon the subject, is such a MISSOURI SUPREME COURT ABSTRACT.* concealment as will prevent the statute of limitations from running until there has been a discovery of the

ADMINISTRATOR'S SALE-ERROR IN DEED-EQUITY fraud. See Meader v. Norton, 11 Wall. 412; Carr v. Hilton, 1 Curt.C. (. 238; Vane v.Vane, L. R.,8 ('h. App.

TO TITLE-Where a purchaser of land at administra383; Rolfe v. Gregory, 4 De G., J. &. S. 576; Ilorenden

tor's sale pays the purchase-money, and the sanje is F. Annesley, 2 Schoales & L. 634; Buckner r. ('alcote, applied in discharge of the debts of the decedent, but

the land is not correctly described in the adminis28 Miss. 568. Cited to the contrary: Wymne v. ('or

trator's deed, an assignee of the purchaser will be ennelison, 52 Ind. 319; Jackson V. Buchanan, 59 id. 390; Musselman v. Kent, 33 id. 458; Pilcher v. Flinn, 30 id.

titled to a decreo in equity correcting the error and 202; Boyd v. Boyd, 27 id. 429. (2) The doctrine that

divesting the legal title to the land out of the heirs of

the decedent and resting it iu him. Grayson F. IT'edthe general lien of a judgment upon land is subject to

dle. Opinion by IIenry, J. any and all adverse equities or claims, whether secret aud unknown, or recorded and kuown, does not pre

* To appear in 80 Missouri Reports.

« EelmineJätka »