in the pantry which had not been discovered by the murderer. Defendant had lived near the deceased and knew that she lived alone. He stated that he left the town on March 27, while the truth was that he left it about three o'clock in the morning of March 28. He was arrested in a town some distance

away.

It appeared that he was in the vicinity just before the homicide and he admitted that he was at the deceased's house on the day before the body was found and ate pie and bread there. The story that he told of his whereabouts on that evening was false in almost every particular. A boot taken from the foot of the defendant fitted exactly a mark left by the foot of some person in frozen mud close to the house and near the back door. When defendant after arrest sent for certain articles and papers which he had hidden away there was found among them a tax receipt of the murdered woman, con

cases a jury could not find that it was not possible for some one besides the prisoner to have committed the offence; a jury is never required to find that it was impossible for another to have committed the crime before they can convict a prisoner on trial; or, in other words, to find it is impossible for the prisoner to to be innocent. Such a degree of certainty is rarely obtainable in the It is administration of justice. sufficient if all the material circumstances point to guilt and that they are inexplicable upon the theory of innocence. The guilt must be established beyond a reasonable doubt, not beyond a possible doubt. 86 N. Y., 646.

Conviction and judgment affir

med.

Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur.

MORTGAGE. PRIORITY.

ESTOPPEL.

age stamps. The wound must have been inflicted with some blunt instrument like an ax, hammer or club, and defendant was shown to have left a neighboring house in possession of an ax on the day in question, though he denied that such was the case.

Calvin Frost, for applt.
F. B. Barnum, for respts.

Held, That the facts warranted the verdict. Juries are not to deal with possibilities in such cases. Where a case depends upon circumstantial evidence and in most other

TERM. FOURTH DEPT.

Ira Seymour, respt., v. Alexander McKinstry, Jr., et al., impl'd, applts.

Decided Jan., 1885.

A party claiming the benefit of the position of a purchaser in good faith and for a valuable consideration is bound to allege and prove that fact.

Plaintiff sold certain premises to one S. under agreement by which he was to be paid the proceeds of a $5,000 mortgage to be given on the premises, and a second mortgage of $3,000 should be given to his wife. McK., with knowledge of this arrangement, took a $5,000 mortgage, as

signed it and paid part of the proceeds to S., retaining the balance to apply to claims against S. Plaintiff refused to receive the check for the part offered, demanded the whole $5,000 of McK., which was refused, and afterwards plaintiff drew the money on the check. In an action to declare the

balance a prior lien on the premises, Held, That plaintiff was not estopped; that neither the receipt of the check by plaintiff, under the circumstances, nor the receipt of the second mortgage by his wife was a ratification of the transaction.

Appeal from judgment in favor of plaintiff, entered on decision at Special Term.

Plaintiff sold certain real estate to one S. August 27, 1872, for $9,100, of which $1,100 was paid down; $5,000 was to be raised on a first mortgage to be given to the Equitable Life Ins. Co. and the amount paid to plaintiff, and $3,000 was to be secured to plaintiff's wife by a second mortgage. The Ins. The Ins. Co. refused to make the loan. Sept. 23, 1872, the grantee and his wife executed and delivered a mortgage for $5,000 to defendant McKinstry, who was informed of the arrangement between plaintiff and S. and had full knowledge of plaintiff's rights, which was recorded the same day. Sept. 26, 1872, McKinstry assigned the mortgage to defendant Sabey, the assignment being recorded Sept. 28, 1872, and on the latter day Sabey gave McKinstry two checks amounting to $5,000. Sept. 30, 1872, McKinstry gave S., the mortgagor, his check for $2,100.37 and applied the remainder on notes and judgments against S. The check given to S. was endorsed by him and delivered to plaintiff, who at first refused to receive it and demanded the whole

$5,000 of McKinstry, who refused to pay. The $3,000 mortgage was executed and delivered to plaintiff's wife. Afterwards plaintiff drew the money on the check and brought this action to have the balance of $2,899.63 declared an equitable mortgage on the premises prior in lien to defendant's mortgage.

The Special Term found upon conflicting evidence that defendant Sabey has not shown that he, when he took the assignment, did not have notice of plaintiff's equitable rights, or of the facts from which they arise.

Louis Marshall, for applt.

Isaac D. Garfield, for respt.

Held, That plaintiff, as between himself and his grantee, had an equitable lien on the premises for the unpaid purchase price, and as McKinstry had notice of the arrangement between plaintiff and the grantee and full knowledge of plaintiff's rights, the equitable lien continued as against McK., and was prior to the mortgage taken by him while it remained in his hands. A mortgagee and an assignee of a mortgage is a “purchaser" within the recording act, 1 R. S. 762, § 8, but the recording act protects only subsequent purchasers in good faith and for a valuable consideration. 1 R. S. 756. McKinstry, the mortgagee, was not a purchaser in good faith. Sabey, the assignee, seeking the benefit of the position of a purchaser in good faith and for a valuable consideration was bound to allegeand prove that fact. 3 Johns. Ch.,. 34; 7 Id., 65; Hopk., 48, aff. 8

Cow., 361; 49 N. Y., 286, 298; Van Santv. Pldgs, (Moak's Ed.) 394, 564; Pom. Eq. Jur., § 785.

The evidence bearing upon this question was conflicting, the witnesses were before the court, which has passed upon their credibility, and the finding cannot be disturbed. The circumstances of the transaction between McKinstry and Sabey do not support the evidence of Sabey upon the question of good faith. Under the finding of fact, Sabey, the assignee, stands in the shoes of McKinstry, the mortgagee, and acquired no equities or rights not possessed by his assignor..

Also held, That there is no element of estoppel. It is true plaintiff conveyed the title to the mortgaged premises to the mortgagor; but McKinstry, the mort

plaintiff's lien. The wife got precisely what it was agreed she was to have, a $3,000 mortgage subject to a $5,000 mortgage. In this plaintiff had no legal interest and the wife had none in plaintiff's equitable lien.

Also held, that the finding, that plaintiff did not acquiesce in the application by McKinstry of $2,899.63 upon claims against the mortgagor, is abundantly supported by the evidence and cannot be disturbed.

Judgment affirmed, with costs. Opinion by Follett, J.; Hardin, P.J., concurs; Boardman, J., not sitting.

SUPPLEMENTARY PROCEED

INGS.

tiff's equitable lien before the mortgage was taken or any part of its consideration advanced. The acceptance of the check was not a ratification of the mortgage. When it was taken plaintiff distinctly claimed from McKinstry the remainder of the consideration of the mortgage. It was taken because he could then get no more, and evidently under protest. McKinstry could not have understood that plaintiff acquiesced in the transaction and received the check as a payment and discharge of his lien. The acceptance and payment of the check reduced the equitable lien by its amount.

The acceptance by the wife of plaintiff of the second mortgage is not a ratification of the transaction and does not affect the priority of

TERM. FIFTH DEPT.

Martin Mason, respt., v. Henry Hackett, applt.

Decided Jan., 1885.

The provisions of the Code of Civ. Proc. relative to proceedings subsequent to execution are not applicable where the judgment on which execution issued was recovered in the Municipal Court of the City of Rochester for less than $25 damages.

Appeal from County Court order denying appellant's motion to set aside proceedings subsequent to execution.

The appeal presents the question whether the provisions of the Code of Civil Procedure relative to proceedings subsequent to execution. are applicable to a case where the judgment on which the execution issued was recovered in the Muni