had already been received, without ob- subsequently deeded to P., who quitjection, this evidence was not irrelevant, claimed the premises to C. and it was too late to raise the objection. J. S., defendant's son, a witness for defendant, was asked: "How was your father to take it ?" (the slate). Plaintiff objected, and the Referee reserved his decision, and it does not appear that he ever decided the question in favor of plaintiff. Plaintiff excepted. This witness, before the immediate answer to this question, detailed the facts and related what took place in word and act in the negotiation and agreement between plaintiff and defendant. The latter also testified to the facts. Held, That plaintiff's exception was available, but that, as even if the question had been ruled out, and no immediate answer had been given to it, the finding of the Referee must have been the same, the exception is of no avail. Judgment affirmed. Opinion by Folger, J. REDEMPTION. N. Y. COURT OF APPEALS. Ten Eyck, Applt, v. Craig, Extrs, etc., Respts. Decided Sept. 21, 1875. Mortgage. Trustee. Held, That the judgment obtained by P. by assignment to B. was in law satisfied, its being, in fact, a payment by the owners, and that no valid redemption could have been or was made thereunder; and that, therefore, the deed to P. by the Sheriff was void, and C. having notice of the facts, took nothing by his deed; but that the time for redemption having expired, C. was entitled to a deed on his purchase the owner and his assigns had lost the right to redeem, and the fact that C. took a deed from P. was not a waiver or relinquishment of his rights as purchaser. It was also claimed that C., at the time of his purchase, occupied such a relation to the owner that he was disabled from purchasing for his own benefit. C. held mortgages upon the premises; the owner had leased them; he assigned the lease to C., who was to collect the rents and apply on the mortgages, with power in case of default and removal of the tenants, to re-lease in the name of the owner. Held, That considering C. as a mortgagee in possession, he was not a trustee for the mortgagor, so as to preclude him from purchasing on the execution sale, and claiming under the title so obtained, that C, by the assignment took no inter This was an action to redeem certain est as trustee in the bill, only in the real estate in the City of R. There is no relation analagous to that of trustee and cestui que trusts between a mortgagee or mortgagor. Nor is the former converted into a trustee by taking possession of the mortgagor, so as to prevent his purchasing and claiming terms, and no duty as trustee was imThe property was sold on execution posed upon C. to protect the premises and bid off by defendants' testator, C. from the sale on execution, or which deOne P., claiming to be a judgment cred-barred him from purchasing on his own itor having a right to redeem, paid the account. amount of the bid, which was received by the Sheriff. The papers presented to the Sheriff showed a judgment in favor of P against the owner of the premises, an assignment of it to B., and a re-assignment by B. to P. It appeared and was found on the trial that B., in procuring the assignment, acted as agent for the owner, who paid the consideration, and that the re-assignment was without the authority of the latter. The Sheriff Opinion by Andrews, J. under an adverse title. Order of General Term reversing judg ment in favor of plaintiff affirmed, and judgment absolute against plaintiff. SUPPLEMENTARY PROCEED INGS. Y. Leg. Obs., 184; Caton v. Southwell, 13 Barb., 335; Atkins v. Sewine, 11 N. Y. MARINE COURT-SPECIAL TERM. Abb., Pr. N. S. 384; Stewart v. Foster, Merriam v. Hill. Decided Oct. 9, 1875. 1 Hilt., 505); and the same principle applies to a salary payable monthly, at the due only in the event of the entire perend of the month, and which becomes When a watch is necessary to the prop er performance of the duties of a debtor it cannot be taken in supplemen-formance of the service (McMillen v. tury proceedings. Vanderlip, 12 Johns., 165); and the or Motion, in supplementary proceedings, der cannot require the debtor to apfor an order to deliver property. ply property acquired by him after The facts are to be found in the opinion, the commencement of the proceedwhich is given in full. ings, which he has already disposed of, McAdam. J.: The defendant was ex- as he has a right to dispose of such amined in supplementary proceedings, property (Caton v. Southwell, 13 Barb., it appeared that he was a single man-a 335). Upon the second branch of the clerk in the Custom House upon a salary motion, as to the watch, it appears by of $2,000 per annum, payable monthly, the examination of the debtor, that he at the end of each month-and that at occupies a small hall-room on the fourth the time the order was served he was floor of the house in which he boards; not possessed of any money. It also that he has no clock or other timepiece; appeared that on the 1st of October, that he requires his watch for the pur1875, he received his salary for the preceding month at the rate specified, and that he expended it, prior to the examination, in the payment of various bills. It also appeared that the defendant was the owner of a gold watch, (worth about $50), which he had upon his person at the time of his examination. The plaintiff now asks for an order directing the defendant either to pay the judgment, or deliver the watch to a receiver, to be appointed for the benefit of the judgment creditor. pose of determining his hour of rising, and for the general regulation of his movements through the day; that he has engagements at his department of the Custom House which he is required to keep, that he must be there at stated hours of the day, and that when he goes to lunch it is necessary to regulate the time of his return; and, in short, that the watch is necessary to the prosecution of the employment through which he obtains his livelihood; and, under such cir The plaintiff has shown nothing to cumstances, I hold that the watch cannot warrant an order directing the payment be reached or taken by or through these of the judgment, nor has he shown the proceedings, notwithstanding the fact debtor's ability to comply with such an that the debtor is a single man. order, if made. (Sandford v. Moshier, 13 Bitting v. Vanderburgh (17 How., 82) the How., 137; Peters v. Kerr, 22 Ib., 3). Superior Court, General Term, said that On the contrary, it is clearly made to ap-" under certain circumstances, a watch pear by the examination that he has not or a clock may no doubt be so necessary the necessary pecuniary ability. Be- that when in actual use either of them sides, it must be remembered that the may be within the description of necesorder in supplementary proceedings af- sary household furniture." They added, fects only moneys actually due at the "So it has been held in this Court, if a time the order is obtained (Potter e. watch hung up for use in a family (havLow, 16 How., 549), and does not apply ing no clock) whose daily avocations to moneys to become dve on an executo- were of such a nature that a timepiece ry contract (McCormack v. Kehoe, 7 N. was indispensable," and the Court con In tinued, "we can readily imagine cases in which the nature of a man's employment is such, that a timepiece is necessary to the prosecution of the business by which he earns his livelihood, and where he uses his watch in the very business itself. Cases may occur in which his business cannot be done, or if he be an employee, his duties cannot be discharged without a watch. In such case his watch may properly be included within the terms working tools.' I think the present case is one of those in which the debtor's duties cannot be properly discharged without a watch, and that the watch is therefore exempt.' An action will lie by the assignee_to_re- · cover damages for the amount due on a bond and mortgage assigned to him, and for his costs in defending a suit in which the bond was adjudged to be usurious, there being an implical warranty that there was a valid and subsisting security for the amount of the bond. This action was brought to recover the amount due on a bond and mortgage, assigned by defendant to plaintiff, and the costs of an action upon the bond against the mortgagor, in which said bond was adjudged usurious and void. The coplaint averred that defendant knew of the invalidity of the bond and mortgage, The common law, harsh and severe as it concealed the same, and falsely reprewas in enforcing the claims of creditors, sented that they were good and valid, and was neither so cruel nor unjust as to that plaintiff relied upon that represenstrip the debtor of the necessaries of tation. The summons was in form for life; and although the Legislature after- an action on contract, and for a specific wards, by statutory enactments, express- sum of money; a motion was made to ly declared certain necessary articles of dismiss the complaint, on the ground property to be exempt in the case of that it contained no allegation of a fraudhouseholders having families depending ulent intent; that the proof did not show upon them for support, yet the common such intent; and that plaintiff was obliged law still recognizes certain exemptions to return what he had received before independent of the statute. Bumpus v. he could sustain the action. This motion Maynard, 38 Barb., 626; and the right was denied. to live by manual or intellectual labor Held, No error. That the averments in carries with it, not only the right to the complaint as to fraud did not so overdress in a manner becoming the nature ride the other averments as to make the of the debtor's employment, but the cause of action one of tort, (42 N.Y., 83; right of being protected in the owner- 53 id., 308; 59 id., 156,) and that it being ship of a watch or clock of ordinary based upon breach of warranty, it was not value, if it be required in the employ- necessary for plaintiff, before commencment by or through which the livelihood ing the suit, to have offered to return is obtained. and re-assign the bond and mortgage,(54 Considering the character of the debt- N. Y., 586). On a sale of a judgment, or's employment in the present case, a bond, note or other like security, there $50 watch is not extravagant, and it cannot be truthfully said that it is unnecessary, and the motion to compel the debtor to deliver it over will, therefore, be denied, but without costs. WARRANTY. N. Y. COURT OF APPEALS. Ross, Respt., v. Terry, Applt. Decided Oct. 8, 1875. is, as a general rule, implied therefrom, a warranty on the part of the vendor that it is a valid and subsisting security for the amount expressed by it. Ile does not guaranty the payment or collection of it thereby, but he agrees, by implication, that it exists, and is valid for the amount of it. Also, that plaintiff's testimony as to his reliance upon the bond, etc., was rele vant, as it went to show that nothing WILL. PHILADELPHIA COMMON PLEAS. Campbell et ux v. Ingersoll. Decided July 10th, 1875. then the share of the deceased shall go, but still subject to this trust, to the survivor, her heirs, executors, administrators and assigns, and should they or either of them die leaving issue, then my trustees shall hold the estate so left, for the uses which may be declared by them, or either of them, by last will and testament or writing in nature thereof, and should both of them die without issue, then I give, devise, and bequeath all the estate included in this the residuary clause of my will to my nephew, Charles Ingersoll, to him, his heirs, executors, ad Executory devise void as remote. Sepa-ministrators and assigns, free and clear rate use for unmarried women void unless in contemplation of marriage. "Dy of this trust, which, in that event, shall ing without issue." cease and determine." (b) The bill then further set out the death, without issue, of Helen Julia Wilcocks, and a deed from her surviving husband and her mother to complainant, Mrs. Campbell, for all the right, title, and estate of the said Helen under the above devise; that, at the death of the testatrix, complainant, Mrs. Campbell, was a minor, and not contemplating marriage with any one; that the trust sought to be created for complainant, Mrs. Campbell, was inoperative because no marriage was in contemplation by her when the will took effect; and that the devise over to Charles Ingersoll was void for “I give and bequeath and devise to Joseph R. Ingersoll and Chas. Ingersoll, their heirs and assigns, all the rest, residue, and remainder of my estate, real and personal, which I now possess, or may die possessed of, in trust for the remoteness. children of my late brother Benj. C. (c) The bill prayed a decree for an Wilcocks, namely, Mary Waln Wilcocks account, and a transfer and conveyance and Helen Julia Wilcocks, for them, of the personal and real estate to comtheir heirs, executors, administrators and plainant, Mrs. Campbell, discharged of assigns, and I direct that the trustees the trust. aforesaid shall hold the same, capital and income, until their arrival severally at the age of twenty-one years . . . and when they arrive severally at twenty-one years of age, the income shall be paid to them quarterly, or at other convenient periods, by my trustees, so that the same may be share and share alike for their equal and sole and separate use, and not subject to the debts or control of their husbands, in case of their marrying, and should either of them die without issue, The answer admitted the facts set up in the bill, except as to the complainant's contemplation of marriage at the time of Miss Wilcocks's death, as to which it averred ignorance. The master reported that no marriage was in contemplation by complainant at that time. For the complainant it was argued. 1. The trust for Mrs. Campbell, not having been made in contemplation of marriage, falls. Although there is a power in the trus The devise is to persons in esse, desig trees to sell and change investments, yet The testamentary power must take effect at the death of the nieces if at all, and is made contingent upon there being 2. The limitations over would at common law have reduced the estate of the niece in realty to an estate-tail with issue at that time. Therefore this power cross-remainders in fee between them, marks the time of the failure of issue. THE COURT held that the nieces of Miss Wilcocks took an estate in fee in the But this will falls within provisions which make the cross limitation over an executory devise. As an executory de- realty, and an absolute estate in the pervise, the limitation, being after death sonalty; that the devise over to Charwithout issue, is too remote. And the les Ingersoll is void for remoteness; that limitation to the survivor, after death, the only trust expressed in the will was without issue, does not change the rule. inoperative, because no marriage was in 3. A gift of personal property with contemplation at the time it took effect; that by the conveyances set forth in the remainder over, after death "without isbill the whole estate of the two nieces sue," gives it to the first taker absoluteappears to have become vested in the ly. But the limitation over to the survivor, his heirs, executors, administrators complainant; and that there must, therefore, be a decree for an account, and and assigns," denotes an intention to make the gift over on a definite failure of payment of the personalty, and a conissue, and is good as an executory be- veyance of the realty as prayed. quest. Hence Mrs. Campbell takes the personalty absolutely under this clause, but, even if she did not, the deed vests the share of the deceased niece in Mrs. Campbell. 4. The limitation to. C. Ingersoll is bad for remoteness, and he can take nothing in any contingency; and the clear intent of the testatrix was to give the whole property to her nieces; and the limitation to C. I. and his heirs was only to take effect upon the failure of issue, when it might occur, of the nieces. Such a limitation will not be supported. Respondent replied: SUPREME COURT OF PENNSYLVANIA. A devise of a portion of a farm occupied This was an action of ejectment brought by Eberly, against Clapsaddle and Susan Coleman, for a field containing eighteen acres which Eberly claimed under the will of his grandfather, Hoke. The plaintiff put in evidence the will of Hoke, dated 21st May, 1807, duly proved 12th June, 1869, devising to him "that part of the McKinstry Farm' at present occupied and farmed by Wm. Brown, The intention of the testatrix was that her residuary estate should go to C. Ingersoll, in the event of her two nieces dying without leaving issue living at the time of the survivor's death. The limitation to the nephew is, therefore, good, at least as to personalty; the preservation containing eight fields;" also a deed of of the property to await the contingency McKinstry et ux. to Hoke, dated 8th is a sufficient reason for supporting the September, 1841, conveying inter alia the land in dispute, and also the "eight trust. |