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occupied by Rebecca was sometimes leased to tenants, but by whom it
was leased, or to whom rent was paid, does not appear.

Sarah A. Walsworth, one of the purchasers at the foreclosure sale,
died prior to December 29, 1903, on which date her will, by which her
interest in the premises passed to her sister, Susan E., the other pur-
chaser, as devisee, was duly probated. About two years later Susan E.
died, leaving a last will and testament, thereafter duly probated, by
which she appointed two executors with power of sale of real estate.
At a public sale the plaintiff Charles Pillmore purchased the title to
these premises which Susan E. Walsworth had at the time of her death
for the sum of $425, and the executors, by deed dated March 28, 1906,
conveyed the same to him. Thereafter the state appropriated, by two
separate appropriations of a part thereof, the whole premises. Pill-
more and the proper state authorities agreed upon the compensation, to
wit, $2,200, to be awarded for the premises so appropriated, and Pill-
more and wife gave to the state a warranty deed thereof. An examina-
tion of the title by the state authorities disclosed the uncertainty of
Pillmore's title to the whole of the premises in question; and pursuant
to the provisions of section 88 of the Canal Law there was deposited
with the defendant Albany Trust Company the sum of $2,798.86 (being
the sum of $2,200, with interest accrued thereon from the date of ap-
propriation of the lands by the state), to the credit of "Charles Pill-
more and Minnie 0. Pillmore, his wife, Thomas S. Nightingale and
wife (name unknown), and Lavina E. Walsworth, widow of Cyrus
Walsworth, as their interests may appear.” Pillmore and wife there-
after mnade demand for the payment to them of the sum so deposited,
which was not complied with. They then brought this action to have
their right to the whole fund adjudicated.

After the appropriation of these premises by the state, Nightingale and wife assumed to convey by quitclaim deed to the defendant Lavina E. Walsworth their interest in the premises. It seems to be conceded that this deed was ineffectual as a conveyance of an interest in the land itself. Later Nightingale and wife assigned their interest in the damages, resulting from the appropriation of these premises by the state, to the defendant Lavina E. Walsworth, reciting the ineffectual attempt to convey to her their interest in the premises by the deed above referred to. The evidence indicates that this assignment was delivered to defendant Lavina before the service of summons in this action was completed upon any of these last-named defendants. However, whether it was or not is not a material matter here, as it was certainly delivered before the trial, and was then produced by the defendant Lavina.

[1] Bearing in mind this recital of the mutations of the title to these
premises, it at once appears that a primary and fundamental question is
presented as to what interest in the premises was in 1878 mortgaged by
Elisha A. to his brother Henry H. by the mortgage above referred to.
Was it the whole premises, or only an undivided one-half interest
therein? It seems to me there can be no question that it was the latter
only. Referring back to the description which I have quoted above, it
will be observed that it includes:

"All that piece or parcel situate in the village of Delta in said town of Lee,”
limited, however, by the clause immediately following as only "being the same

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premises which was conveyed by deed by the party of the second part and Julia, his wife, to the party of the first part on the 1st day of May, 1865."

The effect of this reference to the premises conveyed by the deed particularly referred to in the description is the same as though the particular description in the deed had been set out as the description of the premises intended to be covered by the mortgage. It would be notice to any one thereafter dealing with the title as complete as it would have been, had the deed and its description of the premises been therein recited at length. Howard Ins. Co. v. Halsey, 8 N. Y. 271, 59 Am. Dec. 478. Had the full description of the premises conveyed by this deed been substituted for the reference made thereto in the mortgage as "being the same premises conveyed," etc., could there be any question that only a half interest therein was mortgaged? Yet this is the exact effect of the reference to the deed as actually made. That the parties to the mortgage recognized a distinction in the meaning of the terms "conveyed by" and "described in,” in referring to previous conveyances for a description of the premises intended to be conveyed, may appear in the description of the several parcels included therein. The interest in the Delta Mills property is that "conveyed by” the deed from the mortgagee to the mortgagor, while the two additional parcels are referred to as "those two pieces of land described in a deed of said lands,” etc.

The case upon which appellants chiefly rely to uphold their contention that the whole premises were mortgaged is Carpenter v. Millard, 38 Vt. 9. In this case it was held that a description of the mortgaged premises as being the same described in a prior conveyance, by which an undivided interest in the property was conveyed, should under the peculiar circumstances of the case be held to cover the particular plot of land described therein, instead of limiting the meaning of the word "premises” to its usual acceptation as connoting "the property conveyed by a deed." But this conclusion was reached with some hesitation; and the distinction between a reference to the premises as described in and as conveyed by a prior conveyance is sharply accentuated in the opinion as follows:

"If the parties had had it in mind to limit the mortgage to the partial in. terest conveyed by the deed of 1817, they would probably have used the word 'conveyed' instead of 'described,' or have limited it in terms to an undivided half. If the language of the mortgage had been, all the right, title, and interest conveyed' by the deed of 1847, it probably would have borne the construction for which the orator contends."

The other two cases to which appellants direct attention on this point do not seem to aid their position. These are Sands v. Kaukauna Water Power Co., 115 Wis. 229, 91 N. W. 679, and Munn v. Worrall, 53 N. Y. 44, 13 Am. Rep. 470. The headnote to the former case indicates the decision of the court upon this point as follows:

"A mortgage in the form of a trust deed, covering lands with an appurtenant water power, reserved to the mortgagor power to lease all or any of the lots, together with the water power 'and all other rights and privileges appurtenant' thereto, and provided that upon the approval of such a lease by the trustee 'the same and the premises, water power, and all other rights and privileges described therein shall be no longer subject to the lien of this mortgage, except that this mortgage, during the life thereof, shall be a lien

upon the rents reserved,' etc. Held, that the word 'premises' was not used in its technical meaning, referring to the leasehold estates merely, but means the leased lots themselves the corpus of the land."

This conclusion was arrived at largely because the word "premises," as used in the mortgage, was held to refer to the precedent expression as to leasing of the lots themselves, and was therefore held to be a correlative term. It would also seem that it was the apparent intention of the parties that the rent reserved on a lease approved by the trustee should be substituted in the place of the lots themselves with the appurtenant water power so leased. The New York case is not in point, because that was simply an exception of highways from the granted premises, and it was held that the fee of the highway and not simply the public easement was excepted from the conveyance. Of course, the word "premises” has a definite technical meaning that is well understood as above defined. Where words have such definite meaning, and there is no contradiction or ambiguity in the same instrument, then the apparent meaning should be treated as the one intended. Schoonmaker v. Hoyt, 148 N. Y. 425, 42 N. E. 1059.

No circumstances tending to vary the accepted meaning of the language used in the description within the apparent intention of the parties is shown. That the one-half interest in the premises was sufficient security for the loan of $1,400 appears. Thirteen years before the date of the mortgage this same one-half interest had been sold by the mortgagee to the mortgagor for $3,300. There is no evi. dence that its value had decreased in the interim. True, the mortgagor's wife did not join in the mortgage; but, in addition to the one-half interest in the mill property, the mortgagor included in the mortgaged property two parcels of land, which he had acquired subsequently to the purchase of the interest in the mill property from the mortgagee. Taking the values as represented by the consideration recited in the conveyances, this increased the value of the land covered by the mortgage by the sum of $224. It may here be observed that the question now presented is not whether the mortgagee might not have secured a lien on the whole premises at the time he advanced the money on the mortgage, but is rather what premises did he in fact by the mortgage secure a lien upon.

[2] It is also urged that an estoppel has arisen, because Nightingale, who at the time of the sale owned the title of Cyrus in the premises, was present at the mortgage sale, and did not forbid it, nor then assert an interest in the premises. But such a suggestion is futile, because nothing could be sold, or was sold, except the interest that had been mortgaged. This is true, even though the property which it was then assumed to sell had been the whole property. As was said in Carpenter v. Millard, supra :

"The decree can have no other effect than to cut off the right of redemption in whatever is embraced in the mortgage deed.”

See, also, Brewster v. Striker, 2 N. Y. 19, 41, 42.

Besides there is no evidence as to what occurred at the sale, beyond the fact of the sale and that Nightingale was present.

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[3, 4] It is also claimed that since the defendant, Lavina, shared in the surplus produced at the mortgage sale as widow of Cyrus, an estoppel arises from that fact. But this fact in any event could not operate as an estoppel affecting Nightingale's rights as owner of the fee. Nor as matter of fact did it operate as an estoppel as to her. Her release, executed at the time she accepted a gross sum in lieu of her dower, shows that she accepted the gross sum fixed in lieu of her dower in the premises sold. If only an undivided one-half was so sold, then her right of dower in the remaining one-half would remain unaffected by her act in thus accepting a gross sum in lieu of her dower in the premises sold, because that half had not been sold.

There is no evidence of improvements made to the property after the foreclosure sale by the purchasers or their successor in title, from which an inference can be drawn that claim was made to the whole title. This evidence is limited to an indefinite statement that at some time after the sale the addition at the rear of the dwelling house was shingled, and that plaintiff Pillmore put a roof on the upright or main part of the house after he acquired his title. Who caused the addition to be shingled, or paid the expense thereby incurred, does not appear. Neither does it appear what, if anything, plaintiff expended in roofing the upright part of the house.

It would seem that, in any event, plaintiffs ultimately became the owners of the two sinall parcels conveyed to Elisha A. Walsworth by Elmer. But nothing appears as to the value of these lots as compared with the remainder of the premises; and no claim on that account seems to have been asserted on the trial, nor is there on this appeal.

[5] It is also urged that the equities of the case require that defendant Lavina Walsworth should not now be permitted to assert a claim to the funds in question, because plaintiff Pillmore bought the premises in good faith and for value, supposing he was getting the complete title. But he was chargeable with notice of whatever an examination of the record title would have disclosed. This, as we have seen, would have apprised him that the executors had only a half interest in the premises that they could sell.

A suggestion is also made that, if it shall be held that only one-half interest in the premises was sold at the foreclosure sale, then the judgment creditors of Cyrus Walsworth are in some manner prejudiced. Possibly, if they had then asserted their claims, they might have sold the other one-half, provided their judgments as liens antedated the transfer by Cyrus to Nightingale. But, if there were any such judg. ments, of which there is no proof, their lien has long since expired; and their consideration is not now important.

The judgment should be affirmed, with costs. All concur except

KRUSE, P. J. (dissenting). I am of the opinion that the $1,400 mortgage made in April, 1878, covered the entire title which the mortgagor had at the time of the giving of the mortgage, and not merely the undivided half interest which the mortgagor obtained by one of the deeds given to him, to which reference is made in the description of the lands covered by the mortgage. I think the mortgage was intended to cover the "same premises" and not merely the same interest con veyed

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by the deed referred to. The words of description in the mortgage are
not "one undivided half,” as in the deed, but "all that piece or parcel.”

The conduct of the parties subsequent to the giving of the mortgage
seems to indicate that they regarded the mortgage as covering the en-
tire title, and, if so, it is a strong circumstance bearing upon the prac-
tical construction which the parties put upon this mortgage. It does
not seem to me that the circumstances are such as to support the con-
clusion that it was the intention of the mortgagor to give, or the mort-
gagee to take, a mortgage upon an undivided half for the mortgage
debt, when the mortgagor in fact owned the entire title, but rather to
the contrary.

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PARSHELSKY V. PALLEY.

(Supreme Court, Appellate Division, Second Department. March 19, 1915.)
JURY Cm14-RIGHT TO JURY TRIAL-CONTRIBUTION BETWEEN SURETIES.

Defendant, sued for contribution by his cosurety, is entitled to a jury
trial; an action at law being maintainable, the complaint conforming to
such an action, and no issue requiring aid of a court of equity appearing.

[Ed. Note.- For other cases, see Jury, Cent. Dig. 88 40-60, 66–83; Dec. Dig. 14.)

Appeal from Special Term, Kings County.

Action by Moses L. Parshelsky against Samuel Palley. From an
order denying his motion for a jury trial, defendant appeals. Re-
versed.

Argued before JENKS, P. J., and THOMAS, STAPLETON,
RICH, and PUTNAM, JJ.

Frank E. Johnson, Jr., of Brooklyn (George W. Titcomb, of Brook-
lyn, on the brief), for appellant.

William H. Good, of Brooklyn, for respondent.

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THOMAS, J. The parties are cosureties on a bond conditioned to secure the payment of the judgment. The plaintiff has paid the judgment and taken an assignment thereof, and brings this action to recover from the defendant one-half of the sum paid, with interest. The plaintiff noticed the action for trial at Special Term, and the defendant appeals from an order denying a demand for a trial by jury.

The answer presumably served does not appear. “The doctrine of contribution among sureties is founded on a general principle of equity and justice. Sureties are in æquali jure, and must bear the burden equally.” Norton v. Coons, 3 Denio, 130, 132. Contribution was formerly enforced only in a court of equity, and it is stated in Rindge v. Baker, 57 N. Y. 209, 215, 15 Am. Rep. 475, that:

"It was said by Baron Parke (6 M. & W. 168) that Lord Eldon regretted, not without reason, that courts of law had ever assumed jurisdiction of the subject. They have nevertheless done so, and, as Justice Bronson said in Norton v. Coons,

'borrowed their jurisdiction on this subject from courts of equity, and along with it taken the maxim that equality is equity.''

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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