*1
MARCH,
509
ALBANY,
Chapin.
against
Wood
against
acknowledged
a
deed,
or attested
sub-
A
of which is neither
the execution
effect,
prior
scribing witness,
valid,
parties,
as to
is
as
and takes
between
purchasers
incumbrancers,
of its
or
at the time
execution.
effect,
against
shall not take
The statute which declares that such a deed
(1
purchasers
incumbrancers,
S., 738,
or
§137),
until
R.
subsequent purchasers
refers
and incumbrancers.
purchaser
consideration,
A bona
of land for a valuable
whose
is
deed
first
fide
recorded,
protected against
prior
conveyance, although
is
his
a
unrecorded
grantor purchased with notice thereof.
purchaser
protected by
reсording
a
from
who is
And
act
a
conveyance
protection,
unrecorded
is himself entitled to such
not-
withstanding
purchased
prior conveyance,
he
of
or
with notice
without
parting with a valuable consideration.
protect purchaser against prior
a
To
of
unrecorded
the same land
original
requisite
owner,
executed
it is not
that all the intermediate
conveyances forming his chain of title should be recorded.
money
acknowledgment
receipt
purchase
prima
in a
is
deed
grantor
purchaser
consideration,
evidence
is a
for a valuable
facie
under the
act.
purchases
sale, by
legal proceedings
A
who
land аt a
virtue of
creditor
insti-
debt,
consideration,
tuted to collect his
is a
for a valuable
within
although
recording act,
purchase price, except
the entire
so much as is
required
satisfy
expenses
proceedings,
applied
payment
is
of the debt.1
requiring
officer,
proceedings
whom
are had
an
The statute
before
absconding,
debtor,
report
to make
concealed
non-resident
and file his
days
twenty
appointment
trustees,
within
after
the latter to cause
appointment
thirty days (2
S., 12,
their
to be recorded within
R.
68),
§§
directory merely,
comply
requirements
and an omission to
with these
prescribed
proceedings
within the
time will not vitiate the
or invalidate a
property
made
the trustees.
appointment
report
making
trustees and the
of the officer
the same in
proceeding are, by
S., 13,
68),
such
force
the statute
evidence
§§
party deriving
proceedings
in favor of a
title from
trustees that
were had.
stated therein
by way
conveyance,
bargain
sale,
To constitute
valid
there must be
expressed
proved independent
it,
a valuable consideration
expressed,
disproved
a sufficient consideration
and where
it cannot be
tu
deed. Per
invalidate the
J.
Denio,
1
Jacks,
N. Y. 376. Bolton v.
Morehouse,
See Wood
Wood in the an supreme This was action of trespass,"commenced close, the court 1848, рlaintiff’s to for breaking July, Plea, not and timber. and trees and cutting carrying away lands, were wild and uncultivated The guilty. premises as to the in was Steuben the lying county, question under was the of title title. Helm source William legal he, on the whom both claimed the parties premises; same, 11th a tract of the August, conveyed being n acres, deed, W. claim George Fitzhugh, quit by SI; be in consideration of expressed having been was in on recorded Steuben acknowledged, county, wife, November, the 3d of on the 1827. and his Fitzhugh L5th of the to Priestly September, conveyed Thornton, a deed to be consideration by expressed given $2000, which was acknowledged payment deed. This deed was in evidence given upon рroof witness, it no signature grantor, having subscribing recqrded. never been On having December, 1836, 15th of land to Ben- Thornton conveyed H. Smith. This deed was to be consider- jamin expressed $2000 ation of and was and it was acknowledged; paid, on The recorded the 30th of 1837. deed from May, Fitzhugh Thronton, after stated that describing premises, they were same Helm deed conveyed by by Fitzhugh, 1826; dated the 11th of the deeds from August, Thornton to Smith from the trustees to the plaintiff, referred to each of describing respectively, premises, date, Helm to the deeds the chain of title from by forming claimed to have The grantors. respective title virtue of under the Smith’s acquired proceedings Revised absent and debtors. Stаtutes absconding respecting These were commenced before Judge Inglis, proceedings on the the New-York common 14th of January. pleas, and two creditors of other persons, joint Smith, who it was resided Virginia. applica- alleged of two disinterested wii- tion under oath and the affidavits ALBANY, MARCH, against Chapin. without objection. in evidence given nesses were and all the debtor, of publication with proof notice with produced, papers contemplated of attachment. The return the warrant the exception was Steuben of the sheriff of among papers county annexed to made instead of but upon proved, warrant, title containing separаte paper, attachment to an issued referring proceedings, *3 which the sheriff' acted as the authority Inglis by by Judge made. return to be It set forth which the and to professed of had attached the tract of acres land sheriff that the described; which was that in had been controversy, freeholders, named, two who were whose by appraised No was annexed. other was seized appraisement property the attachment. The of trustees recited appointment upon the attach- the of all the issuing including proceedings, 1841, ; and was ment it was dated 14th recorded January, in that on the 10th The of the day May, year. report also recited the attachment рroceedings, judge the and was bore date 10th filed the February, 4th March in the same The defendant’s counsel year. the on account the absence proceedings, objected attachment, of the and because the of trustees appointment were recorded and filed within judge’s report statute; the but the the time required by objections overruled, and the defendant excepted. in then evidence a
The from gave plaintiff himself, the the land con- trustees due had notice of the sale been troversy, reciting given, to the and that was the according plaintiff sale, auction, such at at which was bidder highest public notice, court-house, in to the at the Steuben pursuant $305. his bid also county, plaintiff proved, of sale notice required independently had been in a statute published newspaper printed This deed Steuben county. payment CASES IN THE COURT OF APPEALS. $305, to the the amount of plaintiff trustees the bid. The defendant’s counsel objected proof of notice of sale was insufficient, and that it was incumbent of a sale in fact addition to upon prove plaintiff but the overruled the conveyance; objection, judge held that the had made title to the out himself, and the defendant again excepted.
also of timber the defendant proved cutting upon and rested. premises, nonsuit,
aAfter motion for grounded upon position himself, "that the had not established title had overruled, defendant, been having excepted decision, introduced the execution of a proved power from Helm Ziba A. William attorney Skinner, Daniel G. dated November 30th authorizing them to take all of Helm’s real estate possession same, to sell and and to take hisof convey possession per- estate, sonal and to sue for the same. The defendant then *4 in evidence another instrument of the same date with gave executed under the hand and seal of power attorney, “ Helm, Whereas, I, Helm, in the words: William following have, herewith, an instrument even date consti- by bearing tuted and Ziba A. and Daniel Skinner G. appointed and to take sеll and my attorneys, agents possession, dispose of, estate, for all sue and recover both and real my personal, claims, and all demands and causes of action obligations, whatever, in either law or in the State New-York : equity, Now, know all men that I all revoke former hereby powers or heretofore and I covenant and authority given, hereby said Leland and Skinner shall have a lien on agree said all for incurred my trouble property expense by business, in them said advances them made my by be me; or to made to and I do covenant hereby agree shall have one-half of all said and I they my property, them, do same their heirs and to hereby convеy assigns forever; am I now live I to have excepting, property 1856.
ALBANY, MARCH, Ilornellsville, con- off for me in on, and the bid property by on the acres, hundred situate turnpike five taining me said Cameron, by bid off Dugald property Cameron, Canisteo, in after all and incumbrances expenses sold, I aforesaid; off as and if the same shall am are paid thereof, aforesaid, under the avails to have exceptions after off one-half my paying residuary property, in all obtaining possession disposing expenses same, incurred me or advances to otherwise by expenses sealed,” me, defendant I am to have. &c. The Signed instrument an Skinner then evidence gave in and under the all his interest to Leland released power one, last instruments. These foregoing papers, except after the of this and recorded commencement were proved counsel, as were suit. plaintiff’s They objected defence, and because they tending prove after the not recorded until plaintiff’s was taken receiving and an ruling, exception same in evidence. was a Helm shown grandson
It was Fitzhugh from Helm mentioned the above and that when executed, and contents knew of the existence him was he Helm to Leland and instruments the two executed died that Helm It Skinner. appeared defendant, as a witness for examined Leland was contrаct, made 1848 from himself an executory proved defendant, of a for the sale -and portion evidence lands embraced conveyances given *5 it that the timber was ent- appeared plaintiff, land that contract. Leland described proved upen Helm, the execution that he and Skinner advanced to after $1500, mentioned, $1000 from above of the papers in his behalf. had instituted several suits that they insisted The defendant’s counsel that the evidence finally be in Leland. showed the title to the He con- entitled to tended that the was not any advantage OASES IN THE COURT OF APPEALS. under acts, for that it not the reason that he or shown those under whom he claimed title were bona otherwisе, for purchasers The held value. judge fide and the plaintiff had a and the verdict, defendant’s counsel excepted.
Judgment was entered in favor plaintiff, was affirmed at a term of court in the general supreme district, 7th this upon which the defendant brought appeal. Z. A. Leland, the appellant.
S. for the Beardsley, respondent.
Denio, The in this O. J. case question presented title. The deduced a strictly legal Helm, title from William who is admitted to have paper in fee been owner unless one or more premises, the defendant to the objections interposed by evidence taken. are well
First. The deed from' was not Fitzlrugh acknowledged, it, and there w-asno witness to subscribing consequently had never been It is rеcorded. that this urged defect S., was, rendered it however, void. R. It (1 137.) § effectual transfer title as between the to it. It parties invalid, would a Subsequent from anor incumbrancer under Helm. But the defendant does such occupy position.
Second. claims title of acquired Smith, statute, means of under the respect proceeding debtors, non-resident of that ing regularity proceed ing questioned. plaintiff proved application oath witnesses the order required for the creditors, notice to of such fact publication pub S., 2, lication. 2 to He also evidence gave §§ trustees, appointment took the proved they oath the statute. The first mentioned prescribed by papers officer-, were sufficient to show jurisdiction in the and the- *6 ALBANY, MARCH, 1856. shall be such oath the trustees
act declares that taking estate, real and with all the deemed vested personal, him. debtor, of the notice to first from the publication S., It is also declared appointment 6.)§ debtor evidence that the trustees shall be conclusive of concealed, non-resident therein named was absconding all debtor, the that the said proceed- appointment It thereto were regular. (Id., 62.) ings previous § held must be has been that this qualified by language in the that case officer had condition the Erwine, Kern., 331, acquired (Van Alstyne jurisdiction. case, in this shown we cases Jurisdiction being cited.) the of trustees are bound to hold that furnishes appointment conclusive, evidence, is, that all incontrovertible in with the accordance other proceedings which the was seized that all the of debtor property notice, first at the time of the of publication possessed law vested the trustees. It was the of by operation their to have caused be trustees duty appointment made, month it was and this recorded within one after duty until three months after the nearly they neglected perform time should have been done. But the of this it object pro- evidence vision was trans- simply perpetuate action, it an cannot be omission this pretended the title which had thus would divest been acquired, respect and render whole' nugatory. original proceeding evidence; and should trustees was given appointment not it held that a record made out of time would be be evidence, it would not affect the validity original made same remark document. The may respecting If officer had failed altogether judge. report title divest the this would' duty,- performing Denio, Bank v. trustees. Risley, (Chautauque that it was incum- insists Third. The defendant’s counsel the fact of a sale bent to prove upon with clothed the' The trustees himself. trastees *7 OASES IN' THE COURT OF APPEALS. Wood land, would, title to the them which any conveyance by by law, title, the common would be effectual wherever pass title arise shоuld The rulo question collaterally. different, would be if had a they possessed only power sell and for in such cases all the for- convey premises, must, observed, malities law required be or by general, is effected. In case this nothing were shown to have been advertised for for sale required period by set forth that due notice conveyance of the sale had been that became given, a sale at auction. We do not purchaser upon that say evidence; the recitals are if but it were essential to the validity should have- purchase auction, been made at we are of opinion presump- tion of the due of official would be performance duty prima sufficient to show that it had been Where facie done.. a in order to a sheriff levy necessary, give authority estate, sell real the court will it to have been made presume it is where found that he has sold the land. conveyed John., am I (Jackson Shaffer, opinion case, made out a title in prima, showing facie himself.
The defendant to show title out attempted Leland, Z. in A. under he whom entered and cut the timber. The most favorable view the defendant which him, taken of instrument in evidence can be given a to consider it of an undivided half of all Helm’s and an of the other- property, equitable mortgage half, to future secure advances which Leland аnd see fit make. It would con- Skinner might clearly of an undivided Helm’s but for veyance moiety property, of a But no the want consideration. consideration was and none was outside of it. proved expressed paper, did not undertake to advance Skinner anything. did and there are no not execute expressions They were bound do conse- anything they MiKCH, ALBANY, against Chapin. it, which would have their quence acceptance it; if had executed their to covenant on amounted they part written, no collateral verbal and there was agreement, *8 Helm, tuor to undertook to which advance anything they it was deed had for'him. If the any operation, do anything salе, Ho of uses. under the statute and of bargain by way and there been to have of seizin given, pretended livery as is between the necessary no such was parties relationship sale, and a covenant to stand seized. A to bargain support uses, statute of rested on the before the goodness consideration, a became hence it was that consideration turned, which deeds of conveyance great point upon raise after the statute in order to invented Law, 162, 163, 353, uses. His. convey (Reeves’ Eng. pp. of case, 355; 154; The Rector Wise 1 Cheddington’s Rep., id., 15; Touchstone, case, 2 man’s ch. Sheppard’s p. 5.) that, settled in this state a It is well to constitute perfeсtly sale, he there must by way bargain consideration m a the deed valuable expressed proved If its of it. one is no independently expressed, proof need and it cannot be actual controverted given, payment evidence, sufficient, and it is the amount be though Alexander, John., ; 3 nominal. 484 Jackson v. merely (Jackson Florence, id., id., 47; Fish, ;456 Jacksonv. 16 Jackson v. Cow., id., Cadwell, 515; Jackson It v. Sebring, true a has is no doubt that the insertion of consideration is, however, ceremonial It a observance. become mere law, where there is no an evidence of form required by consideration, more and we have no actual right dispense with other I am of it than legal requirement. with therefore, for that the deed was void the want óf a opinion, It was executed before the enactment of consideration. Statutes, and are not therefore called we the Revised upon "which'the the effect of to consider legislature provision S., freehold estates. has made respecting grants 738, §§ 136,137.).
3 Keen.—33 CASES IN THE COURT OF APPEALS. against Chapin.
But whatever have been the effect of the deed to might law, at the Skinner common I am of opinion invalid, that it has become plaintiff, by Helm, acts. source title, operation he to Thornton- conveyed conveyed Fitzhugh, Neither of these could hold the land grantees Helm, had for former oí grantees prior knowledge deed and the lattеr did not cause his deed to be recorded. But Thornton to Smith conveyed pecu consideration niary expressed been and Smith his deed on record. paid, put Smith which Fitz prejudiced by knowledge had Leland and If hugh Skinner. *9 affected notice, with notice to another without conveys the latter much is as as if no notice to had either protected Given, John., existed. 137; ever v. 8 Varickv. (Jackson Smith Briggs, 329.) acquired Paige, Fitzhugh’s title, means of the of the latter to Thornton conveyance by him, and of Thornton’s as as effectually had to Smith. It was Fitzhugh conveyed though directly for the that Smith a con unnecessary plaintiff prove paid sideration. The in the deed of the acknowledgment pаy is, uncontradicted, of a ment consideration sufficientevidence Cow., the fact of such (Jackson payment. McChesney, If title Smith Leland and against acquired acts, as of the I shown he virtue Skinner by recording did, the would entitled to he though protection, with full deed. It is had notice purchased material, therefore, to consider whether plaintiff’s pur chase,, him under the. attachment instituted by proceedings self, him a within the constituted bona con purchaser fide has which been to the acts. It is struction given recording from the trustees him that enough purchase gave had. title Smith Smith’s title being perfect Skinner, the clothed with that title, can hold the land them. Varick v. ( Briggs,
ALBANY, MARCH, 1856. against Chapin. am, moreоver, Jackson v. I supra; McChesney,supra.) under insti- judicial purchaser, proceedings opinion himself, tuted be made on account though purchase for the of which debt recovery proceedings had, is a Iona within the statute. The purchaser legal fide incurred, which have to be advanced expenses necessarily are promoting party proceeding, something debt which addition existing had with a consideration for the which he parted receives. correct, are
If these case was dis- views properly court, judgment posed supreme appealed be affirmed. from should J. The defendant committed trespasses
Comstock, of, under a сontract for the claiming purchase complained Leland, land from dated March 1848. Assuming instruments executed Helm to Leland and November, 1825, 30th of them on the conveyed Skinner interest á title or an afterwards (Leland having purchased then the arises whether question Skinner), in his title under the act as a bona protected purchaser. fide Helm, the immediate Fitzhugh, subsequent grantee *10 the would not be unrecorded protected against prior grant Skinner, reason Leland and for the that he had actual to Thornton, title. notice of their Neither would the grantee because his Fitzhugh, protected, A recorded. never takes subsequent no duly purchaser act, the benefit under unless his deеd is first recording deeds, however, Smith, recorded. from Thornton to Smith, debtor, as a and from the trustees non-resident the were recorded before the duly instruments plaintiff, mentioned from Helm to Leland and above Skinner. The therefore, has, that with condition of the complied IN THE COURT OF APPEALS. 520 CASES Leland’s, must unless and his title prevail against in the is some other there difficulty way. out of actual notice of is no arising any
There difficulty imme which the notice title. The Fitzhugh, adverse the had, Helm, not affect does any pur diate grantee Elstin, 12 v. notice (Jackson under him without chasing Cow., ; John., 8 452; 260); Varick Paige, Briggs, Smith, whose the not that it is plaintiff, pretended so far bona he has were purchasers, title acquired, fide is concerned. as this point Helm down that all the from is said conveyances,
It one to be recorded before the the must prior plaintiff, Skinner, the case within the order bring act; as the deed from inasmuch Fitzhugh Thornton, chain, does not one link constituting records, must on the it is insisted that Leland’s title appear believe, true, It I that under the statute prior prevail. deed is to a from recorded notice only subsequent purchaser such a or under same grantor, consequently statute, if within only protection purchaser R., Hill, 469; ;566 deed is not recorded 1 John. Ch. R., I do not Barb. Ch. but find authority 151); all in the chain of the conveyances saying junior recorded, must be when last such title grantee asserting his faith and has own title is himself case, In the deed recorded due time. present Helm, traces his title in fact back to the common not only source, source, Helm to but record shows have been the one of is not recorded. series conveyances although deeds from the trustees Smith to the plaintiff, recorded, Smith, Thornton to both from duly describe Helm to conveyed Fitzhugh, ro Thornton on 15th of by Fitzhugh September, 1885; deed on record. to Thornton the one not *11 If, therefore, the examined when he the title pur- Helm, chased, him the record would back to as carry ALBANY", MARCH, 1856. therefore, doubt, I no must be
origin. plaintiff, under the as a same grantor regarded subsequent purchaser Leland, first recorded his own he is having of thе act. the letter and both policy protected But a to entitle himself to the benefit subsequent grantee, notice, of the must not without only buy put record, his deed first on but he must also purchase consideration. I think the must be valuable as such He and two were others regarded purchaser. Smith, and of the creditors of on the sale attaching jointly trustees, he alone was the bidder premises by buyer. sold, There was no other attached and and con- property all the of the sequently expenses proceeding payable that, out of this bid. either Beyond paid trustees, his bid in over money extinguish- applied debt, ment of so much of the and in that case he ofwas accountable to his associates for course two-thirds of the were, therefore, His relations amount. changed by transaction, he must deemed a be for a valu- able consideration. were made on the trial to the
Some ot objections validity Smith, on the attachment under proceedings which the claims title. of these One was that the plaintiff" of the trustees was not recorded within one appointment made, the time it was as the month from statute requires. R. S. Another was that 61.) report § before whom the were had was not made proceedings judge time and filed within the directed. These (Id., § are and the omission statutes directory merely, comply does not Ano with them vitiate strictly proceedings. itself ther attachment was shown. objection recited the But judge’s report proceedings process form, him in as issued due statute declares that “ such shall conclusive evidence that pro report ”had stated therein were before the officer. Such ceedings the effect statute to the given report judge, *12 IN CASES THE COURT OF APPEALS. agadnst Chapin. it was behind it for unnecessary go matter proof any therein set forth. mentioned, Some other were objections but do not a consideration. they require On exami- special nation of the them with the proceedings, comparing had, statutes under which were there no they appears doubt of their validity. was mаde on the trial point the deed from Thornton, one
Fitzhugh of the links in the constituting title, void, Leland, as the title plaintiff's against on it was not ground and had duly no acknowledged S., witness. The statute attesting 137) § “ that a declares deed not so effect, attested shall not take incumbrancer, a as or until so acknow against purchaser is, however, a deed Such between the ledged.” it, and think it is we a only subsequent parties purchaser or incumbrancer who can take the If the for objection. malities of attestation or had been acknowledgment duly to, attended still the such we call prior conveyance (if it) to Leland and would Skinner but for the prevail, operation statute. The section referred to clearly that the deed would take effect a implies against purchaser incumbrancer, attested; if or but as such effect, could not be prior conveyance incumbrance, the inference would seem to be plain no statute has to such a case. application other Some were on the questions presented argument, all but if determined in the defendant’s favor it they would not the result. Under the views which change been stated the made out title to the premises, in his favor were therefore finding judgment right. should be affirmed. judgment J. The is entitled to recover this
Hubbard, action, he or whom he derived provided through title can be as a on whiсh regarded
ALBANY, MARCH,
Wood' *13 committed, valuable a faith and for was good the trespass had, estate may Whatever consideration. one-half, a to absolute title coupled an power whether half, the or as to the other whether with an interest power to entire it was subject extended to the equally premises, act. the operation registry is, was his The then the question plaintiff predecessors title, them, a valuable a bona for any purchaser fide ? his own The can stand consideration pur- plaintiff upon title or that of he traces chase whom any through source. If back one of them stands common any attitude of bona a entitled to the purchaser, fide act, then the should registry plaintiff protection recover, as the to Leland and not Skinner was conveyance title, recorded until after those under which derives plaintiff with the to one Thornton. exception was not a bona had he actual Fitzhugh purchaser; fide Leland and knowledge outstanding recorded, was Skinner. The to Thornton never he, therefore, would not be protected against Smith, But Thornton from whom conveyance. conveyed derives title. This immediately conveyance, form, a which is consideration ordinary expresses $2000, and was and recorded. properly acknowledged is no knew of There Smith any outstanding pretence in Leland He title or Skinner. equity purchased faith, in the deed of his consideration receipt evidence of of the sum payment prima grantor facie Cow., Under (Jackson McChesney, expressed. 360.) act, therefore, bona Smith presumptively fide consideration, suc- for valuable wild to all his ceeded rights. time land until after the acquired unoccupied title, there is no notice of his constructive ground an title. outstanding IN THE COURTOF CASES APPEALS.
It was insisted argument upon plaintiff’s chain; of a link in the title must fail because the want because the from Thornton was deed Fitzhugh witness, as and had no subscribing required S., 738, the statute. delivery § deed was not It seems to signed by Fitzhugh disputed. me or Leland and stand that neither defendant Skinner in a to raisе under statute. The any question position statute and not to only subsequent applies purchasers, those title from the main in time. deriving grantor prior *14 witness,
A which has no conveyance subscribing not at is the time of its delivery, statute; it not rendered void ipso simply facto effect, to have no a or incum- declared against purchaser brancer, until The deed to transfer acknowledged. operates title, as between the subse- parties, rights subject third acquired by persons. quently of the In view under the right title of Smith, not it be essential whether may he can inquire a bona himself be for a regarded valuable purchaser fide There is no consideration. that his suggestion purchase faith; was not that he was not entirely ignorant or title claim As to the any outstanding. consideration paid, do not see I reason why receipt payment consideration in his deed from the expressed trustees Smith, the insolvent should not proceedings against have the same force and effect as the in a receipt conveyance inter directly parties.
But, this, aside from I think the showed affirma- that he did a valuable tively pay consideration. It is well that, settled in order to constitute a bona purchase fide consideration, a valuable within the the record- meaning of act, must, ing before notified of of the holder deed, of an prior equity unrecorded consideratiоn, advanced some new some relinquished for a debt him. The security preexisting due mere 525
ALBANY, MARCH, against a of a debt is receiving payment preexisting 215; v. 4 enough. (Dickerson Tillinghast, Paige, Kent,168.) case no
In this for an debt relin security existing obtained his deed under the statu quished. Smith, an absent debtor. I do not tory proceeding how the case is from that a con perceive distinguishable sheriff, obtained a virtue of sale a veyance statutory on execution. The of a sheriff’s validity debtor, unrecorded conveyance by has judgment and, think, been I recognized, repeatedly properly, (Parks Jackson, Wend., 442; Jackson, id., Tuttle v. The two methods of sale and are analogous; are both statutоry judicial proceedings. true, the
It is who was the Smith, creditor of plaintiff, creditors, or one of the no new consideration at the paid sale, except expenses attending proceedings. debt; real consideration was the the costs were but an that, incident. Under act should held in effect or the creditor equitably, purchasing judi- upon *15 sale, in an cial on his own insolvent judgment-or proceed- debt, collect his the amount to of his bid to the ing pays officer, receives it back In other theory again. words, be held in it should land is converted equity into made consideration of money, the thus advanced. money trial, made at the
None as to the vali objections of attachment the are well taken. dity The proceedings, officer, statute which the before whom the requires proceed an absent debtor are to to ings against the pending, report court within after the supreme twenty days appointment trustees, same, of and to file the is The merely directory. made, when is rendered statute report, conclusive S., evidence of all the facts which contains. R. (2 68.) § Its recitals therefore all the proved proceedings, including attachment, the issuing of the and all formal original matters CASES IN THE COURT OF APPEALS. against Oswego, Sterling Ireland Hannibal and Plank Road Co. of of There was regularity up appointment trustees.. claim the the no that of wаs defective in report judge at least no was made its recitals respect, objection were not full and complete.
The the the trustees shall requirement month, recorded cause their to be within appointment S., 12, entire failure to An directory. simply § not affect record would sale made validity them of the debtor’s property.
The court must be affirmed. judgment supreme Mitchell, J., All the who did not hear judges, except decision, took no were in argument, part of affirmance. favor
Judgment accordingly. Sterling Oswego, Ireland The Hannibal Company. Plank Road acquired, Although company pursuant plank (Laws road has the statute right upon highway, ofim,p. 26), the to construct its road § public may lawfully company thereon continue travel while the is build- ing plank road. company public, during rights towards the and duties the construc- plank highway, road on the similar to tion of the site are those of repairing highways. or overseers commissioners when bound, engaged constructing plank road, company is while exer- public diligence ordinary care and render the cise reasonable on travel safe; if, by highway negligence former convenient unsafe, exercising and a company, ordinary road rendered traveler *16 damage, company responsible. care sustains for the was to recover The action brought damages negli- its defendant road such constructing gence his it with manner that horses driving upon plaintiff, thrown The trial out took injured. wagon,