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.,

65

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

E

EJECTMENT.

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

ELECTION.

See LEASE, 1.

See DEED, 6.
MORTGAGE, 1.

EVIDENCE.

1. Generally.

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

2.

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.

ib

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,

2. Experts.

556

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.

EXECUTION.

See BANKS AND BANKERS, 2, 3.

EXECUTORS AND ADMINISTRA-
TORS.

See VENDOR AND PURCHASER, 5.

F.

FALSE REPRESENTATIONS.

See EVIDENCE, 15, 16.

FRAUD.

MUNICIPAL CORPORATIONS, 3 to 7.

FRAUD.

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