injunction probably led to the necessity of appointing a receiver, and hence to the loss occasioned by his fees and expenses. Again, the discontinuance is not a final determination that plaintiff was not entitled to the injunction. Johnson v. Elwood, 82 N. Y. 362; Palmer v. Foley, 71 N. Y. 106; Prefontaine v. Richards, 47 Hun, 418. Therefore to permit plaintiff to discontinue would deprive defendants of remedy on the undertaking. It seems to follow that the plaintiffs were without legal excuse for their action, and hence should not escape from it without costs. The learned judge below seemed to think that the circumstances were such as to entitle the plaintiffs to the sympathy of the court in their hard fortune. We are willing to indorse his view so far as to limit the costs to a single bill, without expansion for extra allowance. But the plaintiffs ought not to be relieved from the undertaking they gave in order to procure the injunction; and, to remove any doubt as to the defendants' right to a remedy upon the undertaking, the order of discontinuance should embrace an order deciding that the plaintiffs were not entitled to the injunction, and also appointing a referee to ascertain the defendants' damages. As the receiver's proceedings should not be prejudiced by the discontinuance, and his accounts should be settled, the order should contain a provision that the same referee settle and pass his accounts. The defendants should have costs of this appeal. To give effect to the above views our order is: Order reversed, with costs, unless the plaintiffs shall, within 10 days after service of a copy of this order, stipulate to a modification of the order appealed from, in accordance with the opinion, in which case the order appealed from is modified accordingly. The modified order to be settled by LANDON, J., and to stand as the final order upon this appeal. All concur. COLEMAN V. BRESNAHAM. Supreme Court, General Term, Third Department. December 11, 1889.) COVENANTS-AGAINST INCUMBRANCES-ACTION BY ASSIGNEE. A grantor conveyed land subject to a judgment debt, and covenanted with the grantee, "his heirs and assigns," against incumbrances. Subsequently the grantor acquired title to the land from the purchasers at an execution sale under the judgment. Held that, the covenant being broken as soon as it was made, the grantee took a chose in action, which was assignable under Code Civil Proc. N. Y. § 1910, and the grantor was estopped from setting up his subsequently acquired title against an assignee of the grantee. Appeal from circuit court, Washington county. Ejectment by Robert S. Coleman against Michael Bresnaham. judgment for plaintiff, defendant appeals. Argued before LEARNED, P. J., and PUTNAM and LANDON, JJ. From a LANDON, J. The action is ejectment to recover 10 acres of land, of which the defendant admits he is in possession. The plaintiff claims title under a deed from the defendant and his wife to William Coleman, dated August 2, 1880. At the date of the execution of this deed the defendant and his wife were seised of the premises in entirety by virtue of a deed to both of them as husband and wife. William Coleman died April 1, 1881, and under his will, and a conveyance from his widow, the plaintiff has succeeded to the title of William Coleman. The plaintiff is entitled to recover, unless a defense, under the facts now to be stated, is established. The deed given by defendant and wife to William Coleman contained no covenants of warranty of title, but did contain a covenant that the grantors, the defendant and his wife, “nor either of them, have not made, done, comm tted, executed, or suffered any act or acts, thing or things, whatsoever, whereby, or by means whereof, the above mentioned or described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be, impeached, charged, or incumbered in any manner or way whatsoever," except with respect to two mortgages not material to the present issue. There was then existing a judgment against this defendant in favor of Peck and Byrne, which was a general lien upon his interest in the premises. Peck and Byrne subsequently caused execution to be issued upon the judgment, and under it the sheriff duly sold the defendant's interest in the premises to Peck and Byrne, and on November 1, 1883, he gave them a deed thereof. On September 8, 1884, Peck and Byrne gave a deed of the same premises to the defendant. The defendant claims title under the latter deed. The trial court held that he was estopped by his covenant in the deed to William Coleman to assert a title under a judgment which he in effect had covenanted did not exist. As the defendant and his wife were both seised of the entirety of the premises, the husband was vested with the right to occupy and enjoy the profits of the land as owner during the joint lives of both husband and wife at the time that the lien of Peck and Byrne's judgment against the husband attached; and hence the sheriff's deed under the execution upon that judgment conveyed to Peck and Byrne the right to the possession of the premises so long as the husband should live. Beach v. Hollister, 3 Hun, 519; Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 N. Y. 12, 2 N. E. Rep. 388; Bram v. Bram, 34 Hun, 487. Peck and Byrne's subsequent deed to defendant conveyed to him whatever title they had. The defendant thus made good his defense, unless he is estopped by the covenant in the deed to William Coleman. This covenant is against incumbrances, not of warranty of title. Under the law as it was formerly understood, this covenant was a personal one, not running with the land, but broken the instant it was made, thus vesting in the covenantee a chose in action, which was not assignable, and therefore did not pass to his grantee or devisee. The grantee could maintain no action upon it, and could not assert it by way of estoppel, since he had acquired no interest in it. 4 Kent, Comm. 471; Greenby v. Wilcocks, 2 Johns. 1; Hamilton v. Wilson, 4 Johns. 72; 2 Wait, Act. & Def. 380. The injustice of this rule was pointed out by LIVINGSTON, J., in Greenby v. Wilcocks, and by WILDE, J., in Sprague v. Baker, 17 Mass. 589. BULLER, J., in Master v. Miller, 4 Term R. 340, thought it very questionable. The rule has recently been reaffirmed in Massachusetts. Ladd v. Noyes, 137 Mass. 151, and in Marbury v. Thornton, (Va.) 1S. E. Rep. 909. Since the statute has made such choses in action assignable, (Code Civil Proc. § 1910; Old Code, § 111,) a disposition has been shown to repudiate the ancient rule, and to permit the grantee or devisee of the covenantee, if he suffers from the breach of the covenant, to resort to the covenant for protection and redress. Boyd v. Belmont, 58 How. Pr. 513; Ernst v. Parsons, 54 How. Pr. 163; Andrews v. Appel, 22 Hun, 429; Colby v. Osgood, 29 Barb. 339. The present case illustrates the injustice of the former rule. Although the covenant was broken the instant the deed was given, William Coleman, the grantee, suffered only nominal damages, and could have recovered no more. Delavergne v. Norris, 7 Johns. 358. The real damage was done, if at all, when Peck and Byrne sold the land under their judgment; that is, after the title became vested in the plaintiff. If William Coleman's executors had brought an action, they could not have recovered any more than their testator could. Unless the plaintiff takes the benefit of the covenant, it is practically good for nothing. Equity, for the purposes of justice, repudiates the distinction between covenants which do and do not run with the land. Trustees v. Lynch, 70 N. Y. 440, 449. The covenant was with the grantee, "his heirs and assigns;" thus, in the intention of the parties, being prospective, and beneficial to William Coleman's privies in estate. Insurance Co. v. Insurance Co., 87 N. Y. 400. It may be true that no part of the cause of action for the nominal damages recoverable by William Coleman for covenant broken descended to the plaintiff; but the plaintiff is within the meaning of the "heirs and assigns" with whom the defendant also covenanted, and is the only person whom the covenant can protect, or a breach of it injure. We think the plaintiff can avail himself of the covenant. It follows that the defendant is estopped to assert against the plaintiff any title in himself, based upon the judgment. Holcomb v. Holcomb, 2 Barb. 20; Sparrow v. Kingman, 1 N. Y. 242. It is suggested that estoppel may avail to prevent the defendant from asserting title in himself; but as the plaintiff must recover upon the strength of his own title, and the fact being that Peck and Byrnes divested him of it by the paramount force of their judgment, estoppel cannot revest title in him. The contest is now solely between plaintiff and defendant. The defendant is estopped to avail himself of any advantage under that judgment to the prejudice of plaintiff. Peck and Byrnes' title rests upon that judgment. The defendant cannot allege that such a judgment ever existed. He cannot allege title in Peck and Byrnes without alleging the judgment. He is therefore silenced with respect to that title, and hence has and can make no defense to the plaintiff's title. Unless the estoppel has this effect, it is not an estoppel. We have examined the other questions presented, and think they were correctly disposed of by the trial court. Judgment affirmed, with costs. All concur. BUNN et al. v. BARTLETT et al. (Supreme Court, General Term, Third Department. December 11, 1889.) 1. WILLS-CONTRACT TO SET ASIDE-CONSIDERATION. A testator distributed his property equally among all his children, with the exception of A. and J., who received less than the others. After his death, when the will was read in the presence of all the children except C., A.'s husband, who was also present, protested, whereupon it was agreed that the will be disregarded, and the estate equally divided. The agreement was drafted by counsel, and executed by all except C. the next morning. The will was subsequently destroyed. Plaintiffs' evidence showed that the agreement had been voluntarily made to preserve family harmony, and the referee found that defendants failed to establish fraud and duress by their own evidence. Held, that natural love and affection, and the desire to preserve family peace, and the consent by each to release his share under the will, and divide equally with the others, was a sufficient consideration to support the agreement, and that it had been ratified by the subsequent distribution of the personalty on the basis of intestacy, and by the partition and joint sale of parts of the land on the basis of the agreement. 2. SAME-FRAUD. It was not fraudulent for A. and J. to agree with C. to pay her $3,000 additional, based on her claim that she had previously received less from her father than her sisters, in consideration that she sign the agreement, where such arrangement is known to one appellant, and is not prejudicial to the other. Appeal from judgment on report of referee. Action by T. Romeyn Bunn and others against Emily B. Bartlett, Laura V. Dean, and others for partition. The complaint alleges the share of each defendant to be one-seventh. The two appellants alone answer, and allege the share of each defendant to be one-fifth. Whether the defendants' shares are one-fifth or one-seventh depends upon the validity of an instrument executed by the parties, heirs of Thomas Bunn, deceased, after his death, whereby the property of which he died seised was divided between them, and the provisions of his will in that respect superseded and set aside. The defendants allege that they were induced to execute the instrument by fraud and duress, and without consideration. The referee found against the defendants, and sustained the instrument. Thomas Bunn died August 31, 1883, seised of the premises in question. He left a will, duly executed, whereby he devised the premises to his children, parties to this action, T. Romeyn Bunn, Emily B. Bartlett, Laura V. Dean, Mary E. Bunn, and Harriet L. Conant, share and share alike. The testator left two other children, John T. Bunn and Anna C. Buckbee, to whom he devised and bequeathed other property. On September 3, 1883, and after the funeral of the testator, his children, except Mrs. Conant, came together at his late dwelling-house. Dr. Israel T. Buckbee, husband of Anna, one of the testator's daughters, was also present. The testator's will was produced and read. Dr. Buckbee and T. Romeyn Bunn were named in it as executors. Upon the conclusion of the reading of the will, Dr. Buckbee exclaimed with bitterness and vehemence against its injustice in not giving his wife an equal portion with the others. It appeared, also, that John T. Bunn received but little. The result of the conversation was that it was agreed that the will should be disregarded, and the estate divided equally among all the heirs, except in some particulars not material to be mentioned, if it could be done. Counsel was thereupon sent for, who soon arrived, heard the statements of the parties, received their instructions, and went away to prepare the instrument. He returned the next morning, and all the heirs, except Mrs. Conant, who was at her home in St. Paul, then executed it. It was sent to Mrs. Conant, and she executed it some days later. The instrument in form and manner of execution is effective to make an equal division of the testator's property among his heirs, whether the will should be probated or not. The will was subsequently destroyed. The defendants sought by the testimony adduced by them to show that they were intimidated, misled, and coerced by the threats, violence, and misrepresentations of Dr. Buckbee, and that they executed the agreement under the duress thus exerted and the fraud thus practiced. The referee found against them upon all the issues thus raised. In his opinion he states that upon their own evidence they did not make out their defense. The testimony on the part of the plaintiffs was to the effect that, immediately upon Dr. Buckbee expressing dissatisfaction with the terms of the will, all the parties concurred with him, and expressed their desire to divide the estate equally among the heirs, and that the agreement was made voluntarily, and in order to preserve harmony among the heirs, and to do equal justice to all. Upon the written consent of the heirs, administrators were appointed, and, upon a judicial settlement of their accounts, the personal estate was distributed among the heirs, and accepted by them, upon the basis of intestacy. The heirs united in conveyances of various parcels of real estate of which their father died seised, and the proceeds were divided among them equally, and accepted. Mrs. Conant urged that, in view of the fact that she had not previously received as much from her father as her sisters had, she ought, in order to effect equality, to have some additional allowance. Mrs. Buckbee and John T. Bunn thereupon offered to pay her $3,000. She accepted the proposition, signed the agreement, and was paid by them this sum out of their estates. From a judgment entered in Montgomery county on the report of the referee, Emily B. Bartlett and Laura V. Dean appeal. Argued before LEARNED, P. J., and PUTNAM and LANDON, JJ. E. J. Maxwell, for appellants. W. L. Van Denburgh and Charles S. Nisbet, for respondents. LANDON, J. The defendants were of full age, knew the effect of their action, and, acting upon their sense of justice, and a desire to preserve family harmony, generously released their superior rights under their father's will, and accepted an equality of rights with their brothers and sisters. Such is the effect of the finding of the referee upon evidence which, we think, not only supports, but requires, it. The agreement was made upon sufficient consideration. All the heirs received something under the will. Each one released his or her portion to all, and all united in granting to each one an equal portion of the whole. There was, moreover, the consideration of love and affection, and the desire that family harmony should not be destroyed v.8N.Y.s.no.2-11 by an unequal distribution of their father's bounty. The agreement was subsequently ratified by the distribution of the personal property upon the basis of intestacy, and of the proceeds of joint sales of real estate upon the basis of the agreement. Other real estate was partitioned upon the basis of the agreement. It is not necessary to inquire whether these subsequent transactions amounted to a technical estoppel. They did amount to satisfactory evidence that the defendants, with full knowledge of the facts, were long content with the agreement, and willing to accept its benefits, and to share its burdens. The inference is that they thus acted because they had freely agreed thus to act. The agreement by Mrs. Buck bee and John T. Bunn to pay Mrs. Conant $3,000 if she would sign the agreement was based upon her claim that she had previously received less from her father than her sisters had. The claim was conceded, and the money paid by Mrs. Buckbee and John T. Bunn. There is no claim now that the fact was otherwise. Mrs. Bartlett knew about the transaction. Mrs. Dean did not, but she was not injured by it. The money was demanded in order to make the scheme of equality complete, and not as an inducement to engage in a scheme to defraud Mrs. Dean. The judgment is affirmed, with costs. All concur. ULSTER COUNTY SAV. INST. v. FOURTH NAT. BANK OF NEW YORK. (Supreme Court, General Term, Third Department. December 11, 1889.) 1. PRINCIPAL AND AGENT-PROOF OF RELATION. The treasurer of a savings bank sent certificates of stock to a correspondent of the bank, with instructions to have the stock sold, inclosing a power of attorney of the owner to transfer it. The letter was of the usual form used by the bank in its business transactions with the correspondent, and was signed by the treasurer as such. It appeared that the correspondent had previously sold stock for the bank. Held, that the correspondent could look to the bank as the principal. 2. SAME-POWERS OF AGENT-SALE. The letter requested the correspondent to send "all this to your correspondent at New Orleans, and order the same sold at a price not less than $20 a share. " Held, that there was authority for selling a part of the stock at the rate specified, there being no special directions to the contrary. INGALLS, J., dissenting. 8. SAME-INDEMNITY TO AGENT. Part of the stock was sold on the New Orleans Exchange. By a custom of the exchange, delivery of stock is made on the day after the sale. This could not be done, as the company refused to transfer the stock, on the ground that there was a contest in regard to it. The arbitration committee of the exchange awarded damages to the purchaser to the amount the stock had advanced in value, which was paid by the New Orleans correspondent, and repaid to him by the bank's correspondent, without any notice to the bank. Held, that the bank was responsible for the amount so paid. INGALLS, J., dissenting. 4. REMOVAL OF CAUSES-APPEALABLE ORDERS. An order of the special term denying a motion for leave to file a supplemental answer, showing that defendant was entitled to and had removed the cause to the federal court, is not reviewable on appeal from the judgment, as it is not an order which necessarily affects the final judgment. 5. SAME-WHEN JURISDICTION ATTACHES. In a proper case, where the proceedings for removal to the federal court are reg ular, the state court is ousted of jurisdiction, whether the order of removal is granted or not. 6. SAME-FEDERAL QUESTION-NATIONAL BANKS. An action for money against a national bank, whose corporate existence is admitted, is not a suit arising under the laws of the United States. Appeal from circuit court, Albany county. Henry J. Budington, a resident of the city of Kingston, in this state, died on or about February 28, 1876, in New Orleans, while temporarily residing 1In general, respecting the authority of an agent, and his principal's liability for his acts, see Howell v. Groff, (Neb.) 41 N. W. Rep. 142, and note; Jenkins v. Funk, 33 Fed. Rep. 915, and note. |