Oct. 1818. STOW V. to secure the purchase money of land sold and conveyed, at the NEW-YORK, time of the execution of such mortgages, are to be preferred to judgments previously obtained against the mortgagors, for the removal whereof, it is enacted and declared, that whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time, to secure the payment of the purchase money, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser. This statute conveys the sense of the legislature, that the seisin of the mortgagor, under the circumstances stated in the act, was a seisin for an instant only; for it cannot be doubted, that a judgment will attach on lands, of which the judgment debtor becomes seised at any time posterior to the judgment; and nothing could prevent a judgment creating a lien on the subsequently-acquired lands of the judgment debtor, but the circumstance that his seisin, in the given case, was instantaneous. Surely, then, the analogous case of dower cannot stand on a better footing than a judgment unsatisfied. As a declaratory act, this statute is entitled to high respect; and it fortifies and supports the position, that the demandant's husband acquired, by the deed to him, a seisin, which he parted with eo instanti he acquired it, and that his wife is not endowable of the premises. The Court are very well satisfied, that the law is so, for it would be extremely inequitable, in most cases, to claim dower on such purchases. We are, therefore, of opinion, that there must be judgment for the defendant. THOMPSON, Ch. J., dissented. The demandant, as the widow of Timothy Stow, deceased, claims her dower in lands purchased by her late husband after their intermarriage. He paid part of the consideration money, and for securing the residue, mortgaged the lands. After his death, the mortgaged premises were sold, pursuant to the statute, and purchased by the person under whom the defendant claims; and the only question is, whether the husband was so seised as to entitle his wife to dower. *In the case of Hitchcock v. Harrington, (6 Johns. Rep. 249.) this point was stated, but not decided by the Court. It has long been considered the settled law in this state, that a mortgage is a mere security for money, and the mortgagor is to be deemed seised, notwithstanding the mortgage, as to all persons, except the mortgagee and his representatives. The seisin of the husband, in this case, cannot be considered that mere instantaneous seisin, which the books speak of as not being sufficient to entitle the wife to dower. Those are cases where the husband is a mere conduit pipe, or instrument of conveyance. This is evidently the meaning of Lord Coke, where the rule is laid down. (Co. Lit. 31. b.) It is more fully illustrated by Sir Wm. Blackstone, in his Commentaries, (vol. 2. 131.) where it is said, that the seisin of the husband, for a transitory instant only, when the same act which gives him the estate, conveys it, TIFFT. [* 465] Oct. 1818. STOW NEW-YORK, also, out of him; as where, by a fine, land is granted to a man, and he immediately renders it back by the same fine, such a seisin will not entitle his wife to dower; for the land was merely in transitu, and never rested in the husband, his grant and render being one continued act. But if the land abides in him, for the interval of but a single moment, the wife shall be endowed thereof. V. TIFFT. [ * 466] Where a title is conveyed to a person, and he gives back the mortgage, the fee is certainly vested in him, substantially_and beneficially, and not nominally; otherwise, the mortgage back would convey no title. The case of Nash v. Preston (Cro. Car. 190.) is very much in point, to show that the widow is entitled to her dower. There was a bargain and sale of land to the husband, under an agreement that the bargainee was to redemise it to the bargainor and his wife, during their lives. The bargainee redemised and died, and his widow was considered entitled to dower. For, say the Court, by the bargain and sale, the land is vested in the husband, and thereby the wife is entitled to her dower. This question of instantaneous seisin is well considered by Gwillim, in a note to the late edition of Bacon. (2 Bac. Ab. 371. note.) It is there said, that the proposition, that in the case of an instantaneous seisin, the wife shall not be endowed. though laid down broadly by Coke, is by no means general: he confines it to cases where the husband is a mere instrument of passing the estate. The transitory seisin gained by such ar instrumentality is not enough to entitle the wife to dower; but when the land abides in the husband, for a single moment, as is said by Sir Wm. Blackstone, or, as a later writer explains it, (Preston on Estates, tit. Dower,) when he has a seisin for an instant, beneficially for his own use, the title to dower shall arise in favor of his wife. The case of Holbrook v. Finney (4 Mass. Rep. 566.) has been cited, and relied upon, as in point against the claim of dower. Whatever respect may be due to the opinion of Ch. J. Parsons, he certainly stands unsupported by any adjudged cases to be found in the English books, or by any elementary writer, when fairly explained. In none of the cases referred to by him, in his opinion, was the husband ever beneficially seised, for an instant; and the distinction which he attempts to make between the case of Nash and Preston, and the one before him, is certainly not well founded. In the case of Nash and Preston, the redemising was a part of the original agreement; yet the wife of the bargainee was held entitled to dower. So, in Holbrook and Finney, the deed and mortgage were executed in pursuance of a previous agreement to the same effect, made between the parties. The two cases, therefore, in this respect, are alike. Ch. J. Parsons seems fully to admit the law as laid down in Nash and Preston; and it is a little difficult to understand what he means, by saying that the giving the deed, and taking the mortgage back, constitute but one act. unless the two deeds, being parts of the same contract, are but But whatever importance may be attached to this one act. Oct. 1818. circumstance, the argument cannot be applied to the case before NEW-YORK, us, because it formed no part of the original agreement, that a mortgage was to be given back. MECHANIC BANK V. CAPRON. [* 467] I do not see how our statute, to prevent judgments having a AND FARMERS' preference to mortgages given to secure the purchase money, can in any manner affect this question. It is true, that the first act (sess. 28. ch. 99.) contained a recital, purporting that doubts had arisen, whether mortgages given to secure the purchase money of lands sold and conveyed at the time of the execution of such mortgages, are to be preferred to judgments previously obtained against the mortgagors, and then provides for giving a preference to mortgages thus taken. But this act has no relation to mortgages, in any other respect than to give them a preference to judgments in that particular case. And it is to be observed, that the right to sell land under a judgment, the lien created by such judgment, and the time such lien is to take effect, are all matters of statute regulation. This act only modifies the former statute, and suspends the lien of judgments in such particular cases. But the right to dower depends on different principles. It would, no doubt, be competent to the legislature, to take away or regulate the claim to dower, in cases like the present; but until that is done, we must be governed by the common law rules on this subject; according to which I see no grounds upon which the claim to dower in this case can be resisted. I am, accordingly, of opinion, that the demandant is entitled to judgment. Sed per Curiam. Judgment for the defendant. THE PRESIDENT, &c. of the MECHANICS' AND FARMERS' THIS was an action of assumpsit on a promissory note drawn by J. J. Lansing & H. Lansing, dated the 27th of October, 1813, for 400 dollars, with interest, payable to the defendant, four years after date, and endorsed by him. The cause was tried at the Albany circuit, in April, 1818. The endorser note, who, after of a promissory hisendorsement, and before the note becomes payable, obtains [* 468 ] his discharge *The signature of the makers and endorser, demand of payment, and notice to the endorser, and protest for non-payment as on the 30th of October, 1817, were proved. The defendant is not protected an insolvent, rom payment of the note; the endorsement not creating a certain debt, but merely a liability contingent on the non-payment of the note by the maker, and which liability could not become fixed until after the discharge. (a) Nor does it vary the case that the note was given by the endorser as collateral security for the payment of a debt due the holder, which was barred by the discharge. (a) Andrus v. Waring, 20 Johns. Rep. 153. Oct. 1818. MECHANICS' BANK CAPRON. NEW-YORK, gave in evidence his discharge, as an insolvent, granted by the recorder of Albany, on the 6th of May, 1817. The defendant also proved that the note had been left by him with the plainAND FARMERS' tiffs, as collateral security for the payment of two other notes, drawn by the defendant in favor of J. Russel, and endorsed by Russel, which had been discounted by the plaintiffs, for the benefit of the defendant, and that it had been so left before those notes became payable. One of the notes was for 750 dollars, payable in July, 1816, and the other for 370 dollars, payable in September,, 1816. Neither of them were paid, and they still continued in the possession of the plaintiffs. J. J. Lansing, one of the makers of the note in question, ob tained a discharge under the insolvent act, on the 18th of February, 1818. [* 469] A verdict was taken for the plaintiffs, subject to the opinion of the Court; and it was agreed, that if the Court should be of opinion that the plaintiffs were entitled to recover, then judgment should be entered for the plaintiffs for 872 dollars and 83 cents, being the amount of the note, with interest; otherwise, that judgment should be entered for the defendant. The case was submitted without argument. Per Curiam. The only question in this case is, whether the defendant's discharge under the insolvent act exonerates him from his liability as endorser of the note on which this suit is brought. The note was drawn by J. J. & H. Lansing, dated the 27th of October, 1813, and payable four years after date. It fell due, and was protested, on the 30th of October, 1817, and the defendant was discharged under the insolvent act on the 6th of May, 1817. In the case of Frost v. Carter, (1 Johns. Cas. 73.) it was held, that a discharge under the insolvent act extended only to such debts as were due at the time of the assignment of the insolvent's estate, and to debts contracted for before that time, though payable afterwards. The same principle has been repeatedly recognized in subsequent cases; and it seems to be a general and well-settled rule, that if the creditor, at the time of *the assignment by the insolvent debtor, has not a certain debt due or owing to which he can attest by oath, so as to entitle him to a dividend of the insolvent's effects, he will not be barred by the discharge. In the case before us, the defendant, at the time of his discharge, was not liable as endorser, and his eventual responsibility was altogether contingent. The circumstance, that this note was left as collateral security for other notes which had become due at the time of the assignment, does not prevent the application of this principle. It was analogous to personal security, where no liability existed at the time of the discharge. (a) Every thing upon which (a) So, if a surety, or the defendant's bail, pays the debt after his discharge, it is no bar; for until payment by the surety, no debt accrues in his favor against Oct. 1818. CROSS V. the defendant's liability rested occurred after his discharge. NEW-YORK, There was no debt existing against the defendant on this endorsement, upon which the plaintiff's could have claimed a dividend. The claim on him was conditional, until the demand was made on the drawers. The plaintiffs are, accordingly, entitled to judgment for 872 dollars and 83 cents, according to the stipulation in the case. Judgment for the plaintiffs. MOULTON CROSS against MOULTON. Where a de oath of the want IN ERROR, on certiorari to a justice's Court. The defendant in error commenced an action, by warrant, in fendant is sued in a justice's the Court below, against the plaintiff in error, on a promissory Court by warnote. The defendant below relied on a set-off; *and he re- [*470] quested an adjournment, and said, that he had good bail present. rant, he is enThe justice refused the adjournment, unless the defendant be-titled to an adjournment, on low would not only give bail, but swear that he could not pro- giving good ceed to trial for want of a material witness. The defendant resecurity for his appearance, fused to make the oath, and demanded a trial by jury. A without making venire was accordingly issued, and after the constable had re- of a material turned a panel of jurors, the justice, without any motion by witness. either of the parties, objected to the panel, on the ground that no right, on his the jurors were not suitable, as only three of them were free- own mere moholders, and two of the number near akin to the plaintiff be- any exception low; and he adjourned the Court until the next morning, when he issued a new venire to the same constable, directing him to summon only freeholders. The defendant below refused to attend or make any defence; and the cause was heard ex parte before the second jurv. A verdict and judgment were given for the plaintiff below. Per Curiam. The justice erred in refusing an adjournment. The statute (1 N. R. L. 389.) (a) allows a defendant sued by warrant an adjournment, on giving security "to appear and stand trial, &c.;" and the justice had no right to require an affidavit of the want of a material witness. (Sebring v. Wheedon, 8 Johns. Rep. 458.) the principal. Buel v. Gordon, 6 Johns. Rep. 126. Page v. Bussel, 2 Maule & Selio. 551. Welsh v. Welsh and another, 4 Maule & Selw. 333. So, if the endorser of a note pay it after the discharge of the maker, he may, notwithstanding, recover from the maker. Frost v. Carter, 1 Johns. Cas. 73. S. C. 2 Caines's Cas. in Error, 310. Macdonald v. Bovington, 4 Term Rep. 825. And see Mayor v. Steward, Burr, Rep. 2439. Lucas v. Winton, 2 Campb. 443. (a) 2 R. S. 239. A justice has tion, without being taken by challenge the panel of jurors, either party, to and issue a new venire. |