1. Where the owner of a tract of land lying in a city, caused the same to be plotted out and subdivided into lots, and a map thereof to be made, and filed and recorded in the county clerk's office, on which was an open space, bounded on three sides by said lots, and on one side opening into a public street or high- way, such open space being laid down and designated on said map as "park;" and the owner subse- quently sold and conveyed to differ- ent persons all the lots abutting said open space, describing them by their numbers and by reference to said map; Held that the owner, when he laid out and plotted his tract of land, intended the open space to be a park, and not a mere street or pas- sage way leading by and to the adjoin- ing lots; and that the conveyances of those lots, executed by him, in which the lots were bounded on said "park," did not carry the grantees to the centre of the open space or park, but only to the exterior lines thereof. Perrin v. New York Central Rail Road Co.,
2. On the 1st of April, 1863, C. and wife executed a mortgage to the plaintiff, payable in three years, with interest. On the 21st of April, 1857, C. and wife conveyed the mortgaged premises to J. F., by a deed which was never recorded. Subsequently L. & B. recovered judgments against J. F. which be- came liens on the premises. On the 30th of August, 1858, C. and W. F., with the intent of cheating and de- frauding L. & B., made an arrange- ment by which C. executed a deed of the same premises to W. F., which was at once recorded, and W. F. entered into possession. On the 21st of November, 1859, C. and W. F., for the purpose of deceiv- ing and defrauding the plaintiff, represented to her that C. had con-
veyed the land to W. F. by deed, and that the latter had the full title thereto, free from all incumbrances except the plaintiff's mortgage, a prior mortgage to G., and two judg- ments in favor of C. and W. F. They finally induced her to take a deed of the land from W. F., and dis- charge her mortgage thereon, and to give a mortgage to C. for $245.58, and her promissory notes to W. F. for $154, the balance of the consid- eration; the plaintiff being ignorant of the deed to J. F. and relying upon the statements of C. and W. F. In February, 1860, the land was sold by the sheriff, upon an execution issued on the judgment in favor of B. B. became the purchaser, and a certificate of sale was delivered and recorded. In an action to have the mortgage-discharge executed by the plaintiff declared null and void, and the bond and mortgage given to her by C. and wife reinstated, and the mortgage foreclosed; to have the deed from W. F. to the plaintiff and the bond and mortgage from her to C. adjudged null and void; and for judgment against C. and W. F. for $154 and interest; Held that the plaintiff having taken her deed from W. F. in good faith, and in ignorance of the prior unrecorded deed from C. and wife to J. F., she was pro- tected against it by the recording acts; that the deed to J. F. was void, as to the plaintiff, and could not operate as even a color or shadow of title in any one, as against her; and that consequently the plaintiff had not been damnified, in any sense that a court of equity could recognize. Johnson v. Crane, 78
In an action by a husband against his wife, for a divorce on the ground of adultery, the defendant cannot set up, by way of counter-claim, the adultery of the plaintiff, so as to entitle her to a judgment of divorce against him if the charge is proved. JOHNSON, J. dissented. R. F. H. v. S. H., 9
Under the practice as sanctioned by the code, the defendant in an action to recover the possession of lands, may rely upon any equitable defense he may have. If he holds under an agreement to purchase, he may set up in his defense the same facts which, in a court of equity, would entitle him to a conveyance of the land. Traphagen v. Traphagen, 537
See DEED, 6. MORTGAGE, 1.
1. In actions involving questions of fraud, the intent is always a mate- rial inquiry; and for the purpose of establishing that, other acts of a similar character, done about the same time, may always be shown. Amsden v. Manchester, 158
Hence, in an action to set aside a conveyance made by a debtor in fraud of his creditors, evidence showing what other property he had, at or before the time, and the value thereof, and that he had con- veyed the same to different grantees, without consideration, and with in- tent to defraud his creditors, is ad- missible, on two grounds: 1st. To show the situation of the debtor, in respect to his property, at the time. of the transaction alleged in the complaint to be fraudulent, and what has been done with the prop- erty he previously had; and 2d. For the purpose of establishing the fraudulent intent charged in the complaint.
3. A deed, expressing a money con- sideration, and acknowledging the payment thereof, is prima facie evi- dence that such was the true con- sideration, and that it has been paid. But a judgment creditor has the right to rebut this presumption, and to show that the sum specified in the deed was never paid, by the grantee. ib
7. Where a judgment is imperfectly proved, on the trial at the circuit, the party may produce, on the ar- gument of an appeal, and leave with the court, a record of the judg- ment, properly authenticated to make it competent evidence. ib
8. Questions referring to the appear- ance of a promissory note, at the trial, as, whether the body of the instrument and the signature were written with the same ink; whether there appears to be an erasure on the note; whether the erasure was made before or after the body of the note was written; and whether either of the edges of the note were cut edges, or the ordinary foolscap edges; are proper, as calling for facts (and not opinions) which are apparent and obvious, and which the party has a right to prove, if material. Dubois v. Baker,
9. As respects the existence of a writ- ing upon an erasure, and whether it was made before or after the body of the note was written, if that rests in opinion, it is a question upon which a witness who is a bank cashier is qualified to speak as an expert. Dubois v. Baker, 556
3. Comparison of lands. 10. Where notes and receipts of a party, conceded to be genuine, are already in evidence, for other pur-
11. There is a class of cases in which it has been held that an instrument which is apparently the personal obligation of the one by whom it is signed may, by parol, be shown to be the obligation of another, for whom the person signing was acting as agent. But the rule applies, it seems, exclusively to cases in which it appears in the body of the instru- ment, or from the signature of the person by whom it is executed, that he was acting for another, and in- tended to bind such other, and not himself personally. Auburn City Bank v. Leonard, 119
14. Parol evidence should never be allowed, to create an ambiguity where none exists. Per JOHN- SON, J. 15. Where parol proof of representa- tions made at the time of executing a lease is offered, not for the pur- pose of showing that the lease was intended to pass something which by its terms was not passed, but to show what the terms of the lease would have passed, if the represent- ations had been made true, it is not liable to the objection that a written instrument cannot be contradicted &c. by parol evidence. Sharp v. Mayor &c. of New York, 256
16. So held where a lease of a ferry slip demised to the lessee the slip
"or so much thereof as belongs to the parties of the first part," and the representations sought to be proved were that the lessors owned the whole slip, with a trifling ex- ception. ib
5. Onus probandi. See AGREEMENT, 25. HUSBAND AND WIFE, 4. SUR- ROGATE, 1.
See CHATTEL MORTGAGE, 12. NEGLIGENCE, 2, 3. TRESPASS.
See BANKS AND BANKERS, 2, 3.
EXECUTORS AND ADMINISTRA- TORS.
See VENDOR AND PURCHASER, 5.
MUNICIPAL CORPORATIONS, 3 to 7.
1. If a party makes representations, in such manner as to import a knowl- edge in him of facts, when in truth he has no knowledge of the facts, and the representations are made with the intent that another shall rely on them, and the latter does rely on them, and the representa- tions turn out to be false, it is as much a fraud as if the party mak- ing them knew them to be untrue. Sharp v. Mayor &c. of New York, 256
2. Where the complaint, in an action to recover damages for false repre- sentations, sets forth the representa- tions that were made, stating them as representations of fact made by the defendants of their own knowl- edge, and not as expressions of opin- ion or belief; that those representa- tions were false; that the plaintiff relied on them, and that he suffered damage thereby, this is sufficient to entitle the plaintiff to recover, upon
2. Thus, where the return to a writ of habeas corpus alleged that the defend- ant had been duly appointed provost marshal for the 21st district of New York, under the act of congress of March 3, 1863; that the person al- leged to be illegally detained was arrested as a deserter from the army, by him, as marshal, and was held in accordance with the act, to be de- livered to the nearest military com- mand or post; and that he was thus held "under the authority of the United States;" Held that the re- turn was sufficient in law, and that the defendant was not bound to bring the body of the prisoner be- fore the justice; on the ground that a state court or judge had no juris- diction to inquire into the fact al- leged in said return, that the pris- oner was a deserter. The writ of habeas corpus was accordingly dis- charged, and the prisoner was di- rected to remain in the custody of
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