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law entitled to certain fees or perquisites in virtue of his character as deputy merely, and that in such cases an agreement by the deputy to pay over to the sheriff appointing him any portion of the fees or perquisites which legally belong to the deputy, as such, is a purchase of the deputation, and a direct violation of the statute. The court cited, as an illustration of the latter class of cases, the decision in Tappan v. Brown, 9 Wend. 175, where a deputy flour inspector, entitled, under the statute, to fees, as such, and in his own right, agreed, as the condition of his appointment, to allow the inspector to receive a portion of such fees, and which was held to be, in substance, a purchase of the deputation. The distinction drawn is manifest. In the first case, the fees in question belonged, by law, wholly to the sheriff; the bills were made in his name, and payable wholly to him; all the risk and responsibility was his; nothing was paid him, or agreed to be paid him, for the appointment, but, on the contrary, he employed an agent to do a specified part of his duties, and compensated him by paying a share of his own money, due to himself, as sheriff,-while in the second case the deputy inspector, entitled to fees, as such, by force of the statute, which lawfully were his, and in which his chief had no legal interest, promised, out of his own money, to pay a part thereof to his principal, in consideration of an appointment. The present case is of that character. The defendant, when appointed deputy sheriff, became at once, by that appointment, a peace officer of the county. Code Cr. Proc. § 154. Warrants for criminal arrests could be issued directly to him. His fees as a peace officer, by the law, belonged to and were payable to him alone; and the sheriff could have no right to or interest in any such fees, unless by force of the deputy's consent and agreement. In dealing with them, the latter would be dealing with his own money; and an agreement to share a portion of that with the sheriff would be, in substance, a promise to pay out of his own money a stipulated part, as consideration for his appointment. In this case the bills of the deputy were made out in his own name, against the towns, for fees in criminal cases payable to him, as a peace officer, which in no manner belonged to the sheriff, by law, and upon which the latter had no legal claim. I think the agreement was void, and that the sheriff cannot recover.

The evils of a contrary doctrine are quite apparent. The law gives to a peace officer fees which it deems adequate, and no more than adequate, to secure proper performance of the public duty. The officer becomes a guardian of the public peace, upon whose activity and vigilance very much of the safety of the citizens, and the good order of the community, depend. If the sheriff may select him, not for his integrity and ability, but for his money, he is exposed to the temptation of choosing for a peace officer the man who

will pay over the largest share of his fees, and who is likely to be the worst, instead of the best, of the applicants. And the latter, compelled in that manner to pay for his appointment, and to serve for inadequate compensation, will often either neglect his duties, or be tempted to make up for his loss by levying contributions upon dives and brothels, upon thieves and swindlers, as the price of protection. The rule of the statute is sound and right, and the courts should enforce it vigorously, and without hesitation. In the present case there was no actual wrong intended, but the contract made ought not to be enforced.

The learned counsel for the sheriff seeks to meet the argument by asserting that all fees of the deputy, even in criminal cases, except the per diem allowance, belong to the sheriff. If that be so, it can only be upon the ground that in all cases, criminal as well as civil, the deputy represents the sheriff, and acts in his name, and can do no otherwise, and is merely the hand or arm of the sheriff, who by that instrumentality does the act. The liability of the sheriff would follow. But there is no such liability for the acts of the deputy, in his character as peace officer. Those acts are his own. The authority given him is not derived from the power, in criminal cases, conferred upon the sheriff, but is given directly to the deputy, in his character of peace officer. If, in that character, he makes a wrongful arrest, he only is liable, and the sheriff is not responsible; for the deputy is acting, not as the representative of the sheriff, or under his control, but as an independent peace officer whose authority comes from, and whose duty is due to, the public authority alone. The bond in this case discloses a consciousness of that fact, for it contains a special and vicious covenant that all business coming to the hands of the deputy, "which can be done in virtue of his office as deputy sheriff, shall be done by him in that capacity, and not in any other capacity." The provision was an effort to bring the independent duty of a peace officer within the range of the representative duty of the deputy, and might become, if effective at all, very dangerous to the sheriff himself. The services in controversy were not rendered as agent for or substitute of the sheriff, and in performance of his duty, but as an independent peace officer, and the defendant was entitled, as such, in his own right, to whatever fees were earned. The judgment should be affirmed, with costs. All concur, except HAIGHT, J., not sitting. Judgment affirmed.

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against him previous to his death, does not include an assessment for street improvements, which is merely a charge against the property, and not also a personal debt of deceased, and therefore a devisee takes the land subject to the lien therefor. 30 N. Y. Supp. 1132, affirmed.

Appeal from supreme court, special term, Albany county.

Petition by Marcus T. Hun, as executor of Jane C. Van Schaick, deceased, for instructions in regard to the payment of certain assessments levied against decedent's property. From an order of the general term (30 N. Y. Supp. 1132) affirming an order of the special term (28 N. Y. Supp. 253), Henry Van Schaick and others appeal. Affirmed.

John J. Linson, for appellants. John Alex. Beall, John W. Pirsson, and Russell M. Johnston, for respondents.

O'BRIEN, J. In this case the executors asked the instructions of the court with respect to their duties and obligations to pay certain assessments, made in the lifetime of the testatrix, upon certain of the real estate devised by the will. The courts below have held that the assessments ought not to be paid by the executors, but by the devisees, who took the land under the will. The devisees claim that it should be paid by the executors, and this contention presents the only question involved in the appeal.

Jane C. Van Schaick died May 20, 1893, leaving a will, in which the petitioners were named as executors. By the terms of the will, she devised certain real estate in the city of Albany to the appellants. The assessments in question had been imposed upon the property, and duly confirmed, prior to her death, under the provisions of the city charter (Laws 1883, c. 298), and have not been paid. The assessments having been imposed for the purpose of paving and regulating streets on which the property was situated, it was necessary, under the provisions of the charter (section 29), that they should be based upon a petition of a certain portion of the owners of the property to be charged, requesting that the improvement be made. When confirmed, the assessments became a lien or charge upon the property, which could be collected by proceedings for a sale of the same. But no action at law could have been maintained for its collection, nor did it become a debt or personal claim against the owners, unless she had signed the petition which conferred the jurisdiction to proceed, and it appeared that she was not one of the petitioners. Section 37. It is the duty of the executors to pay the debts of the deceased, and all taxes assessed upon the property, which remain unpaid at the time of the death (Code, § 2719); and unless the assessments in question were a debt or a tax, within the meaning of the statute, the order appealed from is correct.

The assessments were not a debt, since the testatrix had incurred no express or implied

obligation to pay the same in her lifetime, and no action could have been maintained against her by the city, or any other party, for their collection, as a personal claim. The burden could have been enforced only through the statutory proceedings prescribed by the charter against the property upon which it was a specific lien. It is, no doubt, competent for the legislature to enact that such assessments shall not only be a charge upon the property, and collected out of it, but a personal charge, as well, and collected from the person, as a debt, by action or otherwise; but, as we have seen, the latter remedy was confined, by the provisions of the charter, to such property owners as, by signing the petition, asked the municipal authorities to undertake the improvement.

The argument in support of the appeal is mainly directed to sustain the proposition that the burden resting upon the property at the time of the death of the owner was a tax, within the meaning of the statute, and hence payable by the executors from the assets in their hands. Smith v. Cornell, 111 N. Y. 554, 19 N. E. 271. It is perfectly true that the assessments were imposed upon the real estate by an exercise of the sovereign power of taxation, delegated by the state to the governing body of the city. But that does not necessarily make it a "tax," within the meaning of the statute. The ordinary meaning of that term is the contribution which the citizen is required to pay for his share of the general expense of government, and it may be imposed upon persons or property, or both. Local assessments for improvements in cities or villages are contributions which property owners are required to pay, not as general burdens for the support of government, but as an equivalent or compensation for the enhanced value which the property has derived from the improvement. The improvement is supposed to have conferred an additional value upon the property in the locality, and being a special benefit to particular property, beyond what is conferred by general taxation, it is deemed to be equitable and just that the property so benefited should contribute to the expense. Sharp v. Speir, 4 Hill, 77; Sharp v. Johnson, Id. 92;. Ex parte Ford, 6 Lans. 92; In re Mayor, etc., of New York, 11 Johns. 77; Roosevelt Hospital v. Mayor, 84 N. Y. 108; Dill. Mun. Corp. § 761; Cooley, Tax'n, 675. In the case of taxes imposed for the general purposes of government, there is a personal obligation upon the citizen to pay, which may be enforced by distress and sale of his goods, and by other remedies in the courts, while local assessments, imposed, under municipal authority, upon particular property benefited by the improvement, as distinguished from a general tax, are not, as we have seen, a general or personal charge, in the absence of some statute making them such, but are only in the nature of a lien upon the specific property assessed, and the proceedings for their col

lection are in rem. Cooley, Tax'n, 675; Tied. Mun. Corp. § 282; Wolf v. City of Philadelphia, 105 Pa. St. 25; Litchfield v. Vernon, 41 N. Y. 134; Peirce v. City of Boston, 3 Metc. (Mass.) 520. The statute requiring the executor to pay taxes imposed upon the property of the testator, prior to his death, refers to the former, and not to the latter, class of burdens. The lien of the assessments in this case bears a very close analogy to that of a mortgage upon land that has descended to the heir, or passed to a devisee. In such cases the obligation to pay is cast upon the heir or devisee, who takes the land. 1 Rev. St. 749, § 4; Cumberland v. Codrington, 3 Johns. Ch. 229; 3 Redf. Wills, p. 414, § 43, subsec. 26; 2 Williams, Ex'rs, 1697; Halsey v. Reed, 9 Paige, 454; House v. House, 10 Paige, 158, 164. The devisees in this case, therefore, took the real estate burdened with the obligation to pay the assessments; and hence the order of the court below was right, and should be affirmed, with costs. All concur. Order affirmed.

(144 N. Y. 671)

PALMER v. GOULD et al. (Court of Appeals of New York. Jan. 15, 1895.) SPECIFIC PERFORMANCE-MUTUALITY OF CONTRACT -FRAUD-ATTORNEY ACTING FOR BOTH PARTIES.

1. In a suit for the specific performance of a contract to sell land, it appeared that the land was owned by a brother and sister; that the sister, without authority from her brother, entered into an agreement to sell the land, signing her brother's name as his attorney, and at the same time a power of attorney authorizing her to do so was drawn up, and sent to the brother to sign, which he refused to do. The sister made no representation as to her authority to bind her brother. Held that, as the contract was not mutually binding on the vendee and the sister, the latter could not be compelled to specifically perform the contract as to her interest in the land. Per Gray, J.

2. The fact that the contract provided that it should be binding on the vendors jointly and severally was immaterial. Per Gray, J.

3. In a suit for specific performance of a contract to sell land, it appeared that defendant, who had received an offer for the land, on the advice of B., who was her attorney, rejected it. Subsequently plaintiff, who was told by B. the reason for the refusal of the other offer, gave B. instructions to purchase the land for him. B., without communicating this fact to defendant, presented to her plaintiff's offer, which differed from the other merely in regard to the manner of payment; and it was on the advice of B. accepted, and the contract was executed. B.'s testimony, as a whole, showed that he had played a double part in the transaction. Held, that it was error to refuse to find that B., without the knowledge of defendant, was also acting as the agent of plaintiff, and that hence a decree for specific performance was erroneous.

Appeal from supreme court, general term, Fifth department.

Action by Charles H. Palmer against Augusta B. Gould and others. From a judgment of the general term (18 N. Y. Supp. 638) affirming the judgment of the special term as to defendant Augusta B. Gould, she appeals. Reversed.

This action was brought by the plaintiff to enforce the specific performance of a contract made with the appellant, Mrs. Gould, for the sale to him of a large tract of land in the city of Rochester. The land was owned by Mrs. Gould and her brother, Augustus C. Bowen, in equal undivided interests. The agreement for its sale was dated the 25th day of February, 1890, and was expressed as being between Augusta B. Gould, of Rochester, N. Y., and Augustus C. Bowen and Jennie M. Bowen, his wife, of Michigan Bluffs, Cal., by said Augusta B. Gould, their "attorney in fact," as parties of the first part, and Charles H. Palmer, of the city of Rochester, N. Y., as party of the second part. It was expressed therein that the parties of the first part "have sold, and hereby agree to convey, to the party of the second part," a certain tract of land, describing it, containing about 46 acres, for the sum of $50,000, to be paid in the manner therein mentioned. The parties of the first part were to execute and deliver to the party of the second part a good and sufficient warranty deed of the premises, at a time and place specified. A provision of the agreement made the conditions and agreements on the part of the parties of the first part binding on them, jointly and severally. It was signed on the day of its date by the plaintiff, Palmer, and by the defendant Augusta B. Gould, who also signed the names of Augustus C. Bowen and Jennie M. Bowen to it, as their "attorney." The trial of the action resulted in an interlocutory judgment, directing the defendants Bowen and Gould to perform the contract, and to convey the property to the plaintiff. As to the defendant Jennie M. Bowen the complaint was dismissed, on the ground that her name was signed without authority. On the appeal by the defendants from the interlocutory judgment, it was reversed at the general term as to the defendant Augustus C. Bowen, on the ground that the contract had been executed in his name also without authority. 18 N. Y. Supp. 638. The decision of the general term reversing the judgment as to Augusus C. Bowen was appealed from to this court, where it was affirmed, and judgment absolute ordered for the defendant Augustus C. Bowen. 34 N. E. 291. Final judgment was then entered, dismissing the complaint as to the defendants Augustus and Jennie Bowen, and directing specific performance as to the defendant Mrs. Gould. At the time this contract was made, Mrs. Gould lived in Rochester, and her brother lived in California. In January, 1890, a proposition for the purchase of this property had been made by one Ely, and a contract was submitted to Mrs. Gould respecting its sale. She consulted with a lawyer in Rochester by the name of Barker, and, acting upon his advice, the proposed contract was rejected. The plaintiff, Mr. Palmer, was informed about the negotiations with Ely for the sale of the prop

erty, and of their having falien through, and he gave instructions to Barker to purchase the Bowen property for him. Barker saw Mrs. Gould, and informed her that a party wished to purchase the property, and requested her to come to his office. She did so, accompanied by her sister, Mrs. Lathrop, and the contract in question was then and there drawn by Barker, and subsequently executed as described. It is claimed on the part of Mrs. Gould that she executed the contract conditionally upon her brother's approval and willingness to sell. Her testimony, as that of Mrs. Lathrop, was explicit with respect to that. On the other hand, it is claimed on behalf of the plaintiff that Mrs. Gould executed the contract unconditionally, and that it was not dependent for its completion upon the approval and ratification of Bowen. To sustain that position the testimony of Barker is relied upon, to show that nothing was said by Mrs. Gould at the time of the execution of the contract to the effect that she would not sell unless her brother was willing. There had been no interview between the plaintiff, Palmer, and any of the defendants prior to the making, execution, and delivery of the contract. The interviews respecting it were had only between Barker and Mrs. Gould, at which Mrs. Lathrop was present, and took place on the 24th day of February, 1890, at Mrs. Gould's house, and on the following day, at Mr. Barker's office. At the time of the execution of the contract by Mrs. Gould, a power of attorney was drawn up by Barker for execution by her brother, Mr. Bowen, authorizing her to make a valid conveyance of his realestate interests; but it was never executed by him, and he refused to join in the sale. The evidence showed that, though Barker had been and was acting as Mrs. Gould's attorney in the matter of the sale of the property in question, he was also acting under Palmer's instructions in the endeavor to secure a sale of it to him, and that between them the terms had been arranged for its purchase, intermediate the rejection of the Ely proposition and the interviews had by Barker with Mrs. Gould at her house. Barker did not inform Mrs. Gould then of the name of the party proposing to purchase, nor of his negotiations with him; and his communications to her were confined, in substance, to making the offer upon the terms which had been arranged between him and Palmer. Upon the evidence relating to the making and delivery of the contract of sale, the trial court made the finding of fact that no condition of any kind was attached to its delivery. The court was also requested by the defendant Mrs. Gould to find "that at the time of the execution of said agreement, and during the negotiations preceding the same, said Barker was secretly, and without the knowledge or assent of the defendant Gould, acting as attorney or agent for the plaintiff, charged with the duty of purchas

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GRAY, J. (after stating the facts). I do not think that this contract is one which, under all the circumstances, it would be equitable to enforce. It is a rule, well settled by the cases, that the specific performance of a contract for the sale of lands will not be decreed if the remedy be not mutual, or where one party only is bound by the agreement. Chancellor Kent, in asserting that principle, in Benedict v. Lynch, 1 Johns. Ch. 369, referred to the decision of Lord Redesdale in Lawrenson v. Butler, 1 Schoales & L. 13,-a case where the bill prayed a specific performance of an agreement to execute a lease of lands. The defendant entered into an agreement with the plaintiff for the lease of certain property; but it was necessary, in order to its validity, that certain trustees, who held the lands upon trusts during defendant's life, should give their consent, and they refused to do so. Lord Redesdale refused to decree specific performance, on the ground, substantially, that one party only was bound by the agreement, viz. the plaintiff, as the defendant could not have executed the lease in compliance with the agreement. In the course of his opinion he observes: "I have no conception that a court of equity ought to decree a specific performance in a case where nothing has been done in pursuance of the agreement, except where both parties have by the agreement a right to compel a specific performance according to the advantage which it might be supposed they were to derive from it." Again, he observes: "It is said that courts of equity have decreed performance in cases where one party only was bound by the agreement. I believe it would be difficult to find a case where that has been done, particularly a late case." I am aware of the criticism to which Lord Redesdale's opinion has been subjected, and, though I should prefer his views (as Chancellor Kent said he did in Clason v. Bailey, 14 Johns., at page 489), I have no intention of using it as authority, except as illustrative of the general rule. In the cases of agreements for the sale of land signed only by the party to be charged, it must be regarded as overruled by later decisions.

In the cases of contracts relating to the sale of real property, courts certainly have been stricter in enforcing their performance upon the application of the vendee; and it has not unfrequently happened that where he has been in ignorance of the defect in the vendor's title, or where the vendor has rep

resented his interest as being greater than it was, his claim that there should be conveyed to him whatever that interest was has been sustained. Under such circumstances, there does not appear to be any good reason why the vendee should not compel the vendor to perform so far as he is able to, and to make compensation for the deficiency. See Adams, Eq. *90; Sugd. Vend. 193. In Mortlock v. Buller, 10 Ves. 292, Lord Chancellor Eldon observed: "I also agree, if a man, having partial interests in an estate, chooses to enter into a contract representing it, and agreeing to sell it, as his own, it is not competent to him to afterwards say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract, and, if the vendee chooses to take as much as he can have, he has a right to that, and to an abatement; and the court will not hear the objection by the vendor that the purchaser cannot have the whole. But that always turns upon this: that it is, and is intended to be, the contract of the vendor." There is no doubt about the rule that where the vendor has by his agreement undertaken to convey an estate in lands in which he has but a partial interest, and the vendee is in ignorance of that fact, the latter is entitled to insist upon the former conveying to him what interest he has. Wood v. Griffith, 1 Wils. Ch. 44; Pratt v. Law, 9 Cranch, 456; Waters v. Travis, 9 Johns. 450, 465. That is not this case, and none of the cases to which respondent directs our attention are analogous in their facts and in the circumstances which influenced the decree. In Dyas v. Cruise, 2 Jones & L. 460, the plaintiff, in the action for a specific performance of a contract to lease, had on the faith of it, during the first year of his term, expended a large sum of money in lasting improvements; and Lord Sugden said he should have held, "if it had been necessary to decide the point, that Mr. Dyas was entitled to a decree for partial performance of the contract." The defendant, Cruise, was tenant for life of one undivided moiety of the estate, having, with his cotenant, power to lease for a term of 31 years; and the case was decided on the ground that the contract was a valid one, and did not involve a decision of the present question. In Hooper v. Smart, L. R. 18 Eq. 683, the vendor agreed to sell the entirety of certain freehold property, and the purchaser went into possession. Because of delays in completing the transaction of sale, he brought the action for a specific performance. It transpired that a good title to the entirety could not be made, a moiety being in other parties. The vice chancellor decreed specific performance as to the undivided moiety, and an abatement of one-half the price. He rested his decision on the authority of Castle v. Wilkinson, 5 Ch. App.

534, where the chancellor held "that where a man proposes to convey the whole of an estate, as owner of the fee simple, and it turns out that he is only seised pur autre vie, and that his wife has the remainder, there the court can insist on his making good his contract to the extent to which he is able to make it good; and he must submit to an abatement of the consideration to be paid for what he improperly alleged he was capable of selling." In Barker v. Cox, 4 Ch. Div. 469, there was an engagement by the vendor, who also had a reversionary interest in the estate, that all parties would concur in conveying. In Barnes v. Wood, L. R. 8 Eq. 424, the decree for a specific performance was expressly placed upon the ground that the vendor represented himself to be the owner of the fee when, in fact, having only a limited interest, of which the purchaser was ignorant when he entered into the contract. It was held that the vendor was bound to convey all the interest he had. In Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41, the executors contracted to sell their testator's farm, under a power of sale, and there was an outstanding dower right. It was held that the widow, by joining in the contract, consented to look to the purchase money, as a substitute for the land, for her dower right therein, and she could be decreed to release her dower on payment of its gross value.

But in this case there was no misrepresentation nor improper conduct on the part of Mrs. Gould. She did not represent that she could convey, nor did she undertake that she would convey, her brother's interest. Palmer, as well as Barker, knew the nature of the ownership, a fact of which the contract, on its face, informed the former. The transaction, in all its appearances, was one for the proposed conveyance of interests held by tenants in common. There is a clear distinction between the case where a party, in agreeing to sell land to another, represents or asserts his estate or interest in it to be other or greater than it is, and the present case, where Mrs. Gould represented nothing that was untrue with respect to her attitude towards the property, except, possibly, regarding only the face of the instrument,-that she had capacity to agree for her brother's interest. Her representation to that effect was, of course, not in fact made; nor was it understood by Barker to have been made. But assuming, for the purposes of the present discussion, that upon the face of the contract such a representation seemed to be made by Mrs. Gould in signing as attorney for her brother, it is clear that the distinction between such a case and the cases to which reference has been made, where a party had been compelled to convey what interest he had in the property, rests in this: That, in the latter, there is assertion with respect to the title or interest of the party in the property, which furnishes a ground for equity to say that he must convey to the extent that he can, when the other party in

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