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Scott v. Guernsey.

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buildings erected by Guernsey, and I think the evidence sustaius him, that they were put up under an arrangement between him and the tenant for life, by which he was to have the accruing rents during her term, which he did receive, the aggregate amount of which largely exceeded the value of the buildings, with interest on such value. Having been built under such an arrangement, they are to be regarded as built by the tenant for life, and go, on her death, with the land, to those entitled in remainder. The circumstance that Guernsey is one of the tenants in remainder, does not give him any more equitable interest in the buildings than if he were a stranger. It is not like the case where a tenant in common in possession has made valuable improvements, with the assent of his co-tenant, or under a mistaken belief that he was sole owner. such case it may be equitable that the tenant who has made the improvements should be allowed for them; and a court of equity will, in a proper case, refuse to assist his co-tenant to make partition, unless he does equity, by allowing the benefit of the improvements to the party who made them. (Conklin v. Conklin, 3 Sandf. Ch. R. 64. Putnam v. Ritchie, 6 Paige, 390. Matter of Heller, 3 id. 199.) True, in Green v. Putnam, (1 Barb. 500,) the improvements were made, as in this case, during the continuance of the life estate ; but there was the assent of the co-tenant, to the erection of a house of proper size and value, and although a more expensive one was erected, the parties erecting it, or their grantees, were allowed only the expense of such a house as was consented to. In the case at bar, no assent of the co-tenants of Guernsey to the erection of the buildings is shown, and they were not built by him under a mistaken belief that he was the sole owner; and I do not think, inasmuch as he has been fully reimbursed, by the rents he has received, for all his expenditures, and interest, that equity demands that he should, in the accounting, be allowed for their value.

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Scott v. Guernsey.

Neither do I see anything in the circumstances under which James G. Thompson made the improvements for which he claims, entitling him to be allowed therefor. He was in possession, but not claiming as sole owner, and there was no assent of his co-tenants. The decision at special term that he was not entitled to an allowance for his improvements, was, I think, correct.

The referee allowed interest upon the moneys received for rents, from the time of their receipt. In this I think he was right. The money belonged to all the co-tenants, in the proportion of their interest in the property, and when one received the whole he became the debtor of each, for his proportion, and an action for money had and received could have been brought for it, without a previous demand. (1 R. S. 750, $ 9.) There being default in the payment of a liquidated amount of money due, interest was properly charged. (Williams v. Sherman, 7 Wend. 109. Van Rensselaer v. Jewett, 2 Comst. 135.)

The insurance paid by Guernsey on the buildings erected by him was correctly disallowed. The policy was to him and his mother, the tenant for life, for their benefit, and not for that of the other tenants in common of the remainder, and they could have derived no benefit from it. (Wyman v. Prosser, 36 Barb. 368.)

The judgment correctly, I think, makes the amounts found due from the parties who have received the rents of the premises liens on their respective shares of the real estate for the excess received beyond their shares of such rents. (Hannan v. Osborn, 4 Paige, 336.)

The defendant William G. Guernsey objects to the judgment in that it directs a sale, and not a partition of the premises, although the sale is directed to be made in parcels. The seeming incongruity of these directions vanishes when we see that the parcels specified are by no means such as would constitute a division according to the respective interests of the parties; but are such as (in the

Doubleday v. Kress.

opinion of the referee, which opinion, so far as I can see, is well founded) will be likely to bring the most money in the aggregate. I see no reason to make any change in regard to this part of the judgment.

There is no error in the order bringing in D. Wilmot Scott, the administrator of his wife Mary C. Scott, one of the plaintiffs, who died after the commencement of the suit. As such administrator he was entitled to that portion of the rents which accrued to Mary C. Scott prior to her death; and as the action seeks an accounting, as well as a partition, complete relief could not be granted without making him a party.

Upon the whole, I do not see any error in the judgment, and am of the opinion that it should be affirmed, with costs

and

lcoin, Mason

(BROOME GENERAL TERM, May 15, 1866. Parker, P. J., and Boardman, Justices.]

CAROLINE DOUBLEDAY vs. ISAAC KRESS.

60 181 50a 410

It is well settled that a debtor is authorized to pay to an agent any sum which

is due upon a security which has been entrusted to the agent by the holder, for the purpose of collecting any part of it; as where the agent has been

authorized to receive the interest, only, but receives the principal. Indeed the authorities go to the extent of holding a payment valid, made to

an agent who is merely entrusted with the possession of the security, with-
out express authority to receive or collect any part of it. The ostensible
authority attributed to a party to whom is entrusted an instrument to secure
the payment of money, is to receive payment according to its terms.

Per TALCOTT, J.
The principal is, as to third persons, not having any notice of a limitation,

bound by the ostensible authority of the agent, and cannot avail himself of
secret limitations upon the authority and repudiate the agency, where inno-
cent third persons have in good faith acted upon the ostensible authority

conferred by the principal. The plaintift held a promissory note for $800 and interest, payable to her order,

at the office of w., made by the defendant. When it fell due, the plaintiff,

Doubleday v. Kress.

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without indorsing the note, handed it to M. to present for payment. M. accordingly presented the note, at the place of payment, together with a forged order upon W. purporting to be signed by the plaintiff, requesting W. to pay her money to M. The principal and interest was thereupon paid, by W., and the note delivered up and canceled, and M. absconded with the $800. Held that the payment was clearly valid, both upon authority and

principle, and discharged the note. Held, also, that the fact that the note was not indorsed by the payee was of

no importance. Although an indorsement is requisite to render a note negotiable, it is not

necessary to the validity of a payment. A delivery of the note, to the maker, is

all that is required, upon the payment thereof, either to the payee or his agent. The presentation, by an agent, of a spurious order from the payee, upon the

maker of a note, for the amount due upon the note, the maker supposing the order to be genuine, cannot have the effect of invalidating a payment otherwise justified. PPEAL by the defendant from a judgment rendered

against him, upon a verdict, at the circuit. The action was brought to recover the sum of $874.92, with interest from June 1, 1868, being the amount alleged to be due on a certain note made by the defendant, and delivered to the plaintiff, which she could not produce, for the reason that the defendant had wrongfully possessed himself of and withheld it from the plaintiff.

The allegations in the complaint are denied by the answer, except as expressly admitted. The defendant admits the making and delivery of the note set out; alleges payment by leaving amount due previous to and at the maturity thereof with L. J. Wilkin, at the place where the note was made payable. He further alleges that he so left, or paid, the money with Wilkin at his office to pay the note, and that after the same became due, Wilkin did, at his office, pay the note with the money left for such purpose, said payment being made to one Murray, the agent of the plaintiff, after which payment the plaintiff, through and by her agent, Murray, delivered the note to Wilkin, and Wilkin, before the commencement of the action, delivered it to the defendant. Payment of the note is alleged generally

Doubleday v. Kress.

The action was tried before Hon. Thomas A. Johnson, and a jury, at the Monroe circuit, October 5th, 1869. At the conclusion of the evidence, “the court directed a verdict for the plaintiff for $884, that being the amount of said note and interest, after deducting $65 and interest thereon;" to which the defendant excepted. Time was given to make a case or exceptions on which to move for a new trial, judgment in meantime stayed. The motion was made and denied, and judgment being entered, the defendant appealed to the general term.

Charles S. Barker, for the appellant.

I. The judge erred in directing a verdict for the plaintiff. It should have been for the defendant. 1. Under the evidence, the plaintiff should have been held responsible for the misconduct of her agent, Murray, and not the appellant. (a.) The admissions of the plaintiff, with other undisputed facts in the case, show that Murray was the general agent of the plaintiff. He made this loan for her. He was acting as her agent in transacting her business. The plaintiff had no business aside from loaning money, taking notes therefor, and when they were paid, loaning it again. Murray was expressly authorized to take the note (not indorsed by the plaintiff) to the place where it was made payable at its maturity, to collect the interest due thereon, surrender the note and take a new note therefor. (6.) He, Murray, did no act that he was not especially authorized to do, except that he took the principal in bank notes or money, instead of a new note, for the note in suit. He was expressly empowered to collect the interest, surrender the note in suit, and take a new note. (c.) He was acting in the scope of his employment, when he surrendered the note. It was as much a part of his business to surrender the note as it was to collect the interest. (d.) It was not intended by the plaintiff that the note should be indorsed before the interest was paid, and

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