Packer v. . the Rochester and Syracuse R.R. Co.

JUNE, ALBANY, 1858. 28a Syracuse R. and Co. The Rochester Packer v. $1705.26. The therefore was whole Supreme

The surplus lot sale to the and aside the of set respondent Court to him. The $1700 to restored directed appellant decision, of this suggesting part complains him, beneficial to and that the that lot was supreme sale aside in this erred setting proceeding. Court have arrived at the other we questions conclusions upon If sale the lot had of no render this importance. aside, $1700 a had remained as set not been part residue, it would have with the belonged, the surplus, stated; been principles respondent, it is no concern whether the appellant respond- title hold the lot under the sale or ent shall the sheriff. sale under by Court must be

The order affirmed. Supreme other All the concurring, judges affirmed.

Judgment v. The Rochester Railroad Company. agreed thereof, of an island with owner bounded river a branch supplied branch, of mills water from the that it the owners should closed, through Held, an artificial therefor; race the island substituted any provision effect, absence of to that in the mill owners had no That place in the right to have waste-weir race in of one which had existed natural channel. having right, proprietor been thus constructed without waste-weir A land, upon thereby may, adjoining discharged, which the water of the race waste-wcir, though himself, protect close the his land. not mortgaged premises, purchaser foreclosure, at a sale

Whether mortgagor, grants so as be bound privity with covenants land, mortgage, persons made after the respecting the paramount foreclosure, he or whether holds title the estate as held mortgage, before Quere. 284 IN THE OF COURT APPEALS.

Packer v. The Rochester and R. R. Co. Appeal from the Court. The Supreme brought plaintiff wheat, flour, his action to recover the value aof of quantity barrels, &c., into the a flood Genesee river swept during lost, mill, on of consequence undermining race, Bochester, Brown’s of which its floors city fell and the contents of the mill were into the precipitated water. The defendant was with charged having produced this loss a waste-weir in the of wall the race by closing mill, above which the water would plaintiff’s surplus otherwise have from the race. The defendant set escaped in its defence a to close the waste-weir under a up right up contract to which was a and a plaintiff’s grantor party, decree of the late Court of founded such Chancery contract and its directing in that specific performance particular.

At the trial Mr. before Justice Welles and a it was jury, race, or that Brown’s thereof which proved part situate, mill constructed in plaintiff’s originally connected, 1816-1818. It then not with the main channel river, thereof, of with a Genesee branch between which island; island, and the main channel Mumford’s main lay all channel branch above the mill. In being plaintiff’s & became owners Griffith of Mumford’s Selye the lands and channels island of river surrounding same, to a which purchase money, Mechanics’ Bank of New-York and after- assigned 12th, hereinafter mentioned. wards foreclosed On August entered into a with contract the mill Griffith Selye race on Brown’s them one (one Achilles, L. to the contract Henry being grantor race, it was instead which Brown’s agreed plaintiff), by branch around Mumford’s of connecting running island, did, then as it at a between the point midway upper island, ends be carried and lower should directly cut, island, an artificial across branch This main channel the river. involved building ALBANY, JUNE, 1858. R. Co. Rochester and.Syracuse v. race, would artificial

walls in the prolongation sides. & Selye on both Griffith close proposed branch to fill bed of branch above up prolongation race, and the so was the artificial to do granted the contract. The owners extended the race them by contract; the walls with the in accordance building side the race left a which lower of on the depression, the of which the waste-weir closing constituted subsequent the to be cause defendant was alleged by by plaintiff for this suit which was of the damage brought. Peck, and Everard who succeeded

In Griffith of filed their bill in to the title chancery, claiming Selye, true men- construction contract above that by tioned, the mill owners were bound to close the waste-weir race, side of on the lower in the wall by building up wall, the same at the of to above point height depression, elsewhere; as them the water showing damage special waste-weir, of the land the owners below which as it, of the race that the water escaped through praying to finish race defendants compelled closing up waste-weir, and be from the water enjoined permitting the same. The defendant to flow over bill parties mill owners who entered into the con- surviving 12, 1836, Achilles, L. of tract August including Henry of one of plaintiff, grantor representatives had died in the interval. A final who decree them 31, 1842, made was suit August declaring adjudging the defendants the contract ought specifically perform 12, 1836, as thereof performance prayed August in the bill. It was under this decree the complainants it was founded defend- the contract on Peck, ant, & as Griffith closing grantee justified the waste-weir. trial, the defendant offered the aforesaid decree in

theAt evidence, Achilles, and it was admitted L. named Henry was, therein, the time of of the decree and of making IF OF APPEALS. THE COURT

Packer v. The Rochester and R. R. Co. made, the commencement of the suit which it action, owner of the mill of the in this and that the plaintiff derived title him. of further connect- plaintiff By way decree, itself with the the defendant in addition ing proved, follows, mentioned, to the facts as viz.: The before Mechan- Few-York, 1842, Bank a suit ics’ March commenced for foreclosure of the executed Griffith Mumford, of Mumford’s Selye money purchase men- courses before island and the land adjacent, who entered into tioned. Fone 12, 1826, nor their grantees repre- agreement August sentatives, were to this suit. A decree of made, and sale was under which the defendant title derived race, a lot land on both sides of Brown’s lying Mumford’s island the contract of extended across August 1836, 12, below including immediately adjoining closed the defendant. The title of the waste-weir up by and its to cover the bed of the race the defendant appears the wall, to to the of the right perhaps same, the flow of this through question made. was in

The of the decree evi- objected plaintiff giving dence, that the to it were different ground them, from those in the suit and in with present privity that if admitted it did not the acts justify proved court, the defendants. The excluded sustaining objection, evidence, the defendant took ah The exception. then offered evidence the contract of defendant August 1836, the same The to which were made. objections and the was excluded defendant took an evidence exception. had a verdict and which on The judgment, appeal plaintiff was affirmed Court term by Supreme general district, and the defendant seventh court. appealed Selden, for the Henry appellant. Mathews,

Selah for the respondent.

ALBANY, JUNE, 1858.

Packer v. R. R. Rochester and Co. of the determination If the J. appeal depended Denio, the defendants stand in whether legal question I should be and Lewis Walter S. Selye, Griffith privity in its Court opinion Supreme affirmed. should be ruling, By judgment foreclosure the Mechanics’ bank of the held mortgage sale, at the master’s purchase premises title which had in the & Griffith Selye premises the mort- took title which destroyed. purchasers had before That title gagor he mortgage. passed gave to the and it force mortgagee passed mortgage, and sale. The purchasers purchasers’ chain consists, first, of title Griffith & mortgage by to Mumford; then Mumford Selye the assignment by bank; deed; effect foreclosure sale and master’s legal which, taken to conveyance by together, equivalent Mumford and the extinguishment purchasers & which remained Griffith Selye. redemption The transactions of these after the execution mortgagors are aside from this deduction title. The transactions, defendants are these and are not strangers interest, bound them if to their adverse cannot take of them if it would be for their interest to do so. advantage The defendants’ counsel that their have argued position is the same as Griffith though Selye conveyed them. This I think is If the not so. been mortgage released and the defendants had received from conveyance the or mortgagors, holding equity redemp- parties them, held tion under then indeed would have under and have been bound would by any mortgagors estoppel But the effect of a foreclosure is which affected them. quite concerned, a mort- title is different from this. Where legal in is a mere chose other which for gage, many purposes action, interest the land. The is a remaining conveyance off and foreclosure cuts in the is an equity. mortgagor title, conveyed by that leaves extinguishes equity IN THE COURT OF APPEALS. Syracuse R. n. The Rochester and R. Co. absolute. Such the effect of a mortgage, precisely strict foreclosure. The not decree a to present practice foreclosure, common but to order the law mortgaged pre bidder; mises to sold to the the statute highest be “ declares deed that master’s such sale shall vest estate, the same and no or other purchaser greater, would vested in the if mortgagee equity had been foreclosed.” S.R. redemption (2 158). § “ such deeds shall be as as if say proceeds valid same were executed by mortgagee, them,” and shall an entire each of bar &c. against this is effect of not to override former member of sentence; but it should construed with it. harmony At law no or common individual officer can public own deed man’s land. affect another The statute authorizes so, a master in do and for this it chancery purpose of the master’s deed. affirms the act When validity the same if shall have as executed says validity it is not to taken that the is to be con mortgagor, purchaser sidered as under the title holding mortgagor, by subsequent a sense which would him to the mortgage, acts effect of the intermediate the mortgagor’s foreclosure. The master’s deed be con may probably sidered, as to a release mortgagor, equivalent There is equity nothing redemption. .opposed two cited this view the cases the defendant’s counsel Ditmas, 526; v. Vroom Paige’s Reports ( Paige, id., Shelton,11 In this case v. therefore the 28.) Vanderkemp not but it was fore redemption conveyed, closed and extinguished.

But this foreclosure did not extinguishment operate the interests Warham conveyed by mortgagors 12, 1836, others instrument Whitney August these because persons

suit. If realised on the sale was sufficient to money debt, others, whom I mortgage Whitney pay ALBANY, JUNE, 1858. Co Rochester R. R.

Packer v. The owners, mill hold an unin shall for convenience call the estate thus to them. If title to the real cumbered conveyed is a debt still there balance of that unpaid, lien an estate in of the have property, balance, for the is unfore which estate mortgage unpaid closed. this state of To apply things question 1836, both the instrument of estoppel: August, 31st, 1842, of the decree Court of con Chancery August stituted the immediate estoppels operating reciprocally upon also ran with the title to the land to which They parties. related, and the they grantees respective parties created, which the instrument liable estoppel, them, and were also entitled take set advan up of it. In other words the of these tage respective grantees remote, immediate or stood in regard parties, ques of the tion estoppel whom places original parties of estate. But they represented by way privity at the sale master’s did not hold under the title purchasers Griffith, which Griffith or Peck & Selye, execu instrument, of the tion or at the time 1842, of the decree of title under the title which paramount, namely, Grif &fith Selye execution of conveyed are not within the May, influence of estoppel. there is But another to this aspect question, altogether notion which to me independent estoppel, appears show that instrument of 1836 to have been ought received evidence. The attributed to the defen- wrong dants this action was the the waste-weir shutting up had been left in of Brown’s the north wall originally where crossed the branch or race old channel river. It was built four feet at that originally only high place, on each side walls of it This much enabled being higher. owners, the other mill plaintiffs shutting below, into gates guard just discharge surplus race, the old channel on the lower side of the and thus inconvenience, avoid water. danger high III. Smith.—Yol. IN THE OF COURT APPEALS. R. and Co. The Rochester

Packer u. the sluice mill owners to have open depends kept right of the instrument construction the terms proper former, to waste the Their 1836. right, surplus have been dam at that must taken to over the place, But it was a grant legal arising by prescription. could thus that the water branch .running only be wasted. The of 1836 instrument contemplated branch, should should shut that it the water out of to run be made land. & were authorized Selye Griffith dry it from the water ran into a wall across the head where quite across extended Brown’s race was to be river. Genesee river, be taken was to and the water branch the race. on mills situated the main channel to supply not inconsistent It would have been positively exist a should that waste-weir arrangement provided wall, water; there the north in to discharge surplus instrument, such ques- in express provision I do not see is whether one is to tion any implied. true such can rest. which an ground upon implication the wall was at first constructed so as to leave space wasted, and this some evidence of the water to be would be time, at that if their under- understanding material; did but it all of the matter standing to establish in that prescrip- remain condition long enough instru- 1841, the date of after tion. In seven years only Peck, estate of ment, acquired Griffith (Peck having them to sued the Selye) chancery compel were bound and a build it decree up adjudging the Mechan- in. Then do so was obtained acquiesced and became ic’s Bank foreclosed the mortgage purchaser stood, and of land the waste-weir which channel of below thrdugh immediately ground defendants, afterwards, ran; old branch Bank, built up these having premises purchased attributing the wall the waste-weir. Without destroyed ¿at - it" th'e effect an to the decree chancery, estoppel

ALBANY,JUNE, 1858. Packer v. The Eochester and E. E. Co. Syracuse least end to on the an put Griffith any acquiescence part & Peck in the continuance of waste-wier. The former the water over the dam an end right wasting put the new The instrument which that by arrangement. by did not made arrangement waste-weir. provide any If, therefore, the were between & Griffith present litigation other, Peck on one side and the mill owners on the the lat- ter could not claim the to continue the waste-weir right to, the instrument referred and except through as that instrument contains on that either in nothing subject, express terms or fair cannot they insist by any implication, such a right. that the mill owners no

Assuming acquired right by to have a at that agreement, how can waste-weir place, they the defendants—the prosecute owners of the land imme- below, and which the diately fall, water would run, over which it would if suifered to run out of the race at — from arid place stopping up space preventing at all? The mill owners should running have built it themselves, so, omitted to do up having defendants it. do As right to the title of strangers Griffith & Peck, would have had this they If I am the right. owner of land one bounded on side the walls of an artificial watercourse, constructed the owner lawfully of the wall adjoining premises, must of proprietors course confine the water within the channel which they constructed, and cannot claim a to waste it right over land. This is my said, But it exceedingly plain. may true, and it is Griffith afterwards & Selye, Griffith Peck, were the owners of an redemption own, which the defendants now below the premises, waste- weir; and that could although they grant rights would not the lien of the mortgage, whatever did assume can asserted, now rights they grant inas- much as the not grantees parties foreclosure. as to & Peck were seized all the Griffith world' except OF IN APPEALS. THE COURT R. Co".' Packer v. Rochester could under them. They claiming mortgagees indefeasible, land which would be interests grant against foreclosure of only mortgage, except cor- This all but them. perfectly rect, to waste if have not granted defendants, the land owned now principle construction If I the has no am right application. instrument, was the mill owners necessary. foreclosure of I can which to this view suggestion opposed only executed, under the was this: mortgage think of is when title, their defendants obtained of which the foreclosure the ran the dam old over channel lawfully the water mill, then mill the and the land below the present on the use of the or other- gates had a right, guard owners that dam at their wise, it over Such to waste pleasure. when of the mill owners the rights executed, title from Peck & the defendants’ Griffith that date. equity By relates defendants, off, as cut purchasers redemption sale, advan- cannot avail themselves any the foreclosure Griffith, that Peck and when under the contract arising tages made mill equity the owners redemption, said, How, can the defendants claim to owners. may which Peck & take Griffith arrangement advantage owners, mill made with the seeing redemp- had, which title which Peck & tion Griffith only it, made has been cut off when they foreclosure ? would if the mill This be unanswerable owners had been and had been foreclosed. But the holder of made parties to claim a foreclosure the mortgage, against omitting owners, has left them in of all mill enjoyment rights with Peck & acquired which Grif- they arrangement remembered, That it must arrangement, fith. granted owners, to Peck and to the mill & Griffith rights reciprocal were the consideration of each other. which Peck grants owners, the mill acquired, right Griffith ALBANY, JUNE, 1858.

Packer v> The Rochester R. Co. close the old branch channel. up got extend race across that main channel to the river, channel of the and to conduct the water through race as thus extended. This former modification of the water right subverted the old dam. totally contemplated river, that the branch of the both above below where it, the race crossed should cease to course. The be water river was to be confined within the channel. The principal claims, effect, he pláintiff should not only disturbed he in which common with the other rights mill owners under the claim acquired agreement (which thus far well but that he should retain founded); occasion, with on so far rights they parted at least as concerns the of the old channel situated part below the where the race crosses that channel. This point latter claim is unwarranted. Retaining enjoyment all which the new they acquired by arrangement, they to claim that which right they relinquished. considerations, warranted,

These if the reversal require of Court. judgment Supreme J. The decree which was offered in evidence

Pratt, determined as to the to it and conclusively, their parties the effect of the contract under which the race privies, across extended the island to the main channel of the river. that contract the mill owners secured to By themselves island, the race across the and continuing directly forever, it for the keeping up purpose conducting it to their mills. This essen- through right, affecting mills, the water mani- would tially power propelling with the mills to all and festly pass subsequent purchasers, would be in with their and legal they privity grantors, the terms and bound conditions of the contract as well as the decree its construction and effect. determining the other hand the

On owners of the island were bound the race to to allow be built and for the purposes kept open OF APPEALS. IN THE COURT and R. R. Co. v. The Rochester

aforesaid, have it entitled to constructed according and were This burden contract. to stipulations estate, land, would manifestly directly pass, affecting it, to owners of to all the attached subsequent with benefits was to be constructed. land over which the race Such become estate with owners would subsequent privies contract, who were their grantors parties of the contract as conditions deter- stipulations fine, the decree. In mined subsequent' purchasers in estate their sides are on both grantors, privies their mutual interests rights are denying estopped the court declared action adjudged their grantors parties. contested; seem These do not to be but general principles the defendants are it is claimed that subse- purchasers decree, that the contract and are quent prior with, and therefore not legal privity purchasers and to suit. to the contract This is the' main question in the case. It admitted that holds under plaintiff Achilles, was both a who the contract and the party decree, and he owned the mills that at the time decree, but is now claimed that there was no evidence them the time he owned contract. was not taken answer the trial enough point raised admission the con- when objection case shows that such was The whole tract. undoubtedly fact; and had that been out the it would objection pointed The must been obviated by have therefore proof. plaintiff Achilles, under as who deemed owner at the holding of the contract and of of the execution the time entering decree. now, the is conceded that defendants are and were an- of the to the time owners of the land

terior at injury, the race now crosses the channel, where old the point at the time of execution of the con- belonged to that contract. But hold under tract a 295 ALBANY, JUNE, 1858. Syracuse E. E. Co. Packer v. The Eochester and to the sale a executed foreclosure mortgage prior upon such of the contract. execution Upon, suit, the fore- made a although not party plaintiff and the decree. to the contract was subsequent closure down to the narrowed therefore becomes The question is a under a foreclosure whether purchaser point: simple of the as of the time of to take title deemed mortgagor as the time of execution of or mortgage receiving In whatever be viewed the deed. question may aspect he is clear that succeeds to I think rights as of the time of the of the owner equity redemption, deed, of the as master’s least execution delivery have intermediate who interests those acquired foreclosure and sale. execution mortgage the law owner now redemption, state, is vested with the in this substantially stands legal law, a was held to land. At common title a condition subsequent, vesting conveyance in land And still title mortgagee. legal in of our sister states. But in this many so England state, at law and in is vested equity, both mortgagor title, with the all for purposes practical mortgagee action, secured a chose a lien holds simply Statutes, there is an the Revised Since attribute land. foreclosure, before in the left which he mortgagee, claim of title. make For the mere can any pretence into he where consent goes possession right, is not an to retain attribute of title. possession, morgagor, the same case of a would He pledge. “ maintain assignee may A possession and if the defendant mortgagee, trespass against reply ienementum,he freehold in himself. may liherum reply (Runyan Johns., Mersereau, An 11 534.) v. outstanding mortgage of seizin. of the covenant not a breach v. Hotten (Sedgwick 376; id., back, Johns., v. Stanard Eldridge, 255.) in the land has estate sold or capable being mortgagee 296 CASES IN THE OF COURT APPEALS. i>. The Rochester E. E. Co. Bill, R., 5 v. J. Ch. He has no inte

conveyed. (Aymar 570.) rest sold under execution. v. being (Morris capable Mowatt, 2 He holds a for the only Paige, 586.) security R., 2 Barb. debt v. Ch. before ( Smyth, Waring 119), bound, as an is of cove assignee entry mortgagor, nants with the land. His interest is not running (Id.) dower, but to the subject goes representatives personal such, as a chattel. “It taxable personal may without deed conveyed by delivery only.” mortgagor is, land, for substantial the owner every purpose, Miller, has a lien it. v. mortgagee merely upon (Astor ; Wend., 2 68 603; Astor v. 5 v. Paige, Hoyt, Smyth, Waring R., R,, 119; Calkins, 2 Ch. Barb. Calkins v. S. C. Barb. 305; Heartt, Denio, Gardner v. Judgments 232.) against land, him are liens and it sold to satisfy may it; them. He sell it with may other charge mortgages. it, easements, create He or other may burthens impose can which be removed only making per sons interested suit. His interest descends estate, his heirs as real and is or dower tenancy He create or life terms for for curtesy. may years it, will vested as until mortgagee R., In v. foreclosure. Ch. Barb. Waring Smyth (2 119) “ Chancellor said that a this state mortgage Walworth a but a chose in action mere lien or or nothing security incident to as an the debt mortgaged premises, So, Denio, itself.” in Gardner v. Heartt Justice (3 232) on Beardsley creates a lien says: specific “A lands, as a docketed does mortgaged judgment duly one lands But on debtor. general judgment as such has no title to land he has mortgagee mortgaged; rem, jus neither ad a mere re jus security debt, land, title to remaining notwithstanding, mortgagor.”

I alluded relative incidents only portion interests belonging mortgagee, 297

ALBANY, JUNE, 1858. R. ®. The Rochester and Co. decisions, which the and to a few of the reports full, the interest is for all are that mortgagor showing title, whilst that of the mort substantial legal purposes lien; deemed it is and I should not have gagee simply cited to have not some brethren any, my necessary own one come to a different conclusion my point in this case. is Upon assumption mortgagee land, vested with the title I should have been legal in the of Lord Mansfield ready say, language (Doug., “ that it an affront to common sense” to 632), say this is not the real owner. mortgagor [in state] true the to their interests language applicable law, deemed to exist at were common often used they yet exist, to their interests as now but I regard venture they that, Statutes, since the Revised not an say adjudication can found in this state where the interest of a third party has whether the question depended title, was vested with the in which it mortgagee has been determined that the estate was vested in mortgagee the.

not in the Whenever this mortgagor. title has question material it has been been decided uniformly both in the law courts, vested, it was for all substan- tial purposes, mortgagor. therefore, case, in this mortgagors, the title holding to the mill owners the premises, granted land,

construct a race across the for which undertook they to build the walls where it crossed the channel at a given owners, The mill and their estate, successors in height. an easement and became liable grant acquired to per- attached to it. form the conditions The mortgagees having lien might, by making prior suit, interests, have terminated their unless they redeem. But chose to willing leave their inte- satisfied, rests that the benefits were unimpaired, perhaps, burdens, not, therefore, and did equal make them therefore, stands mortgage, unforeclosed parties. as to ' HI. Smith.—Vol. APPEALS. THE COURT OF IN R.R. Co. Packer v. Rockester and Ike tjie owners, mort- interest of the mill but the the lights and, foreclosure; the the upon gagors passed purchasers when necessitate, the time it must be deemed to ex pass been the whole it was foreclosed. premises Suppose defendants, the such the purchased upon which the to insist of conditions upon upon performance owners were entitled to the easement would mill clearly must, been no vested in the longer mortgagors. mill therefore, otherwise have vested the purchasers, conditions would hold the easement free from easement it them. which was granted Suppose upon of a for a term' of had been granted years upon payment under fore- not the rent. Would purchasers periodical the rent ? As the covenant to sale be entitled to closure land, the such case run with the mort- would in rent pay sale, it; not be entitled to and if such would after gagors, it, not entitled to owners would the purchasers free from rent. the easement This be enabled enjoy The rent attached to the be. could being manifestly continues, so as the must long tenancy necessarily, .land If the of the fee or the reversion. to the owner belong foreclosure, term a his or tenancy is made tenant party it, sale, a after mere tres- and being, subverted would exist. But made not being rent would longer passer, he would remain but would term unimpaired, party, under the foreclosure to attorn to purchaser compelled result, from the to him. And this rent manifestly, and pay with the would fact purchaser legal privity far as interest of the is concerned lessor. So divested, foreclosure, virtue power Under that sale contained mortgage. power pur- title, not as of the time of of course acquires chaser as of the instrument but execution granting power, He does not hold time of the execution of power. under the grantee power, directly grantor. 1858. JUNE,

ALBANY, Syracuse R. R. Co. v. Rochester lien sale, where master’s to a The same rule applies made are not parties, holders subsequent advertisement foreclosure by to a sale applied made Statutes, and before under the Revised provision S., lien holders. 546.) notices (2 for serving held chancellor In Vroomv. Ditmas (4 526), Paige, “ advertisement, that, the purchaser under foreclosure by he has so far as of the mortgagor, rights acquires simply debt, and also much of so for the mortgage any, security as was not bound the lien redemption doubted, It cannot therefore be mortgages judgments.” think, in this case deemed defendants should I that the Griffith, in estate with Selye mortgagors, privies that the and decree were contract evidence competent trial, determining rights parties.

I have discussed this somewhat at because question length interest, deemed it one of and it seemed to me so I great free from doubt that the decision of the cause entirely might But, it. of this more obviously placed independent below, think, the court I must be judgment point, was done the water reversed. injury plaintiff flowed the new race. The or those through plaintiff, holds, he this new under an under whom built race agree- ment with the owners of the land banks or walls thereof, channel, where it crosses the should same as the other of the walls. At this I height portion height, channel, understand, the water could not into the old escape therefore, which the have take the right, this new race not connected with through any right to a waste-weir where it the old at the crosses channel. point accident, water, If the at the time of the had come down old channel a different question might perhaps channel, But, the new arisen. through plaintiff passing excess, of an to have it shows no in case through escape right, no such it follows that the old channel. And right, having an action which he could there is nothing upon predicate CASES IK THE COURT OF APPEALS. Meech v. Allen. no he cannot damages. Having right, complain any

one for him in the of it. disturbing enjoyment reversed, must and a trial therefore be new judgment granted. Harris, Js., ;

Comstock and sit case Sel- did not den, J., no concur- all the other expressed judges opinion; red in the decision last stated in the ground pre- ceding opinion, question expressing opinions upon estoppel. reversed and new trial ordered.

Judgment Meech another v. Allen.

Equity supersede legal priority judgment will not partner- of lien of a fora ship partner, debt upon rendered after the death of one the real estate of survivor, right, in his junior held individual judgment favor of a against debt, though such for his survivor individual pro- there is no other perty satisfy judgment, the latter and sufficient estate of the deceased partner satisfy judgment partnership creditor. appear partner It must estate the deceased is hound in survivor, having relieve that of the a before creditor a to resort to required by separate both can be creditor of the survivor resort first to partner. the estate of the deceased

Appeal from the Court. The Supreme averred complaint 1847, these facts: In May, recovered plaintiffs judg- ment one against sole Taylor, individual upon indebt- edness, $8,650.65, which was docketed and became duly a lien his real died, estate. In seized of Taylor real estate his own individual right, said was a Pratt, lien. and one Hiram judgment Taylor who 1840, were, lifetime, died in their May, partners business of common carriers the Erie canal and the lakes. demand A arose great them as such partners

Case Details

Case Name: Packer v. . the Rochester and Syracuse R.R. Co.

Court Name: New York Court of Appeals

Date Published: Jun 5, 1858

Citation: 17 N.Y. 283

Court Abbreviation: NY