Syron v. Blakeman. counter-claim, after the assignment of a thing in action, is not reserved or given in any part of the code. For this reason the offer of the defendant was properly overruled by the referee, and a new trial must be denied. [MONROE GENERAL TERM, September 1, 1856. T. R. Strong, Welles and Smith, Justices.] SYRON VS. BLAKEMAN. Where gravel was given to the public, by the plaintiff, and was delivered to and applied by the defendant as overseer of highways, in repairing the road; Held, that no action would lie against the defendant for the value. A permission by parol, from the owner of the gravel, in such a case, is sufficient to protect the defendant from liability; a parol license to enter upon land and remove a part of the soil, being a complete justification of acts done under it. Where, in an action for gravel sold and delivered to the defendant, it was proved that in 1853 and 1854 the plaintiff and others, all acting under the direction of the defendant, went on land in the plaintiff's possession, and took gravel from the same, and put it on the road; that in 1853, before the gravel was drawn, the plaintiff told the defendant he could go there and get gravel to draw on the road; and it was inferrible from the evidence that the defendant was overseer of highways, and acting as such; Held that the license was to be construed as authorizing the taking of the gravel without compensation, and that such license was not limited as to time, but continued until 1854, or would be implied, under the circumstances; and that consequently the plaintiff was not entitled to recover. A PPEAL by the defendant, from a judgment of the Wayne county court, reversing the judgment of a justice. The opinion sufficiently states the facts. C. D. Lawton, for the appellant. J. Welling, for the respondent. Syron v. Blakeman. By the Court, T. R. STRONG, J. The complaint in this case, was an account for gravel sold by the plaintiff to the defendant, and the answer denied the complaint. It was proved, on the trial, that in 1853 and 1854 the plaintiff and others, all acting under the direction of the defendant, went on land in possession of the plaintiff, and took gravel from it and put on the road; that in 1853, before the gravel was drawn, the plaintiff told the defendant he could go there and get gravel to draw on the road; that he could draw what had caved in on the sand. There was no proof that the defendant was overseer of highways, except that one witness testified the defendant warned him to work on the road, and the defendant's directing what was done. This is the substance of all the evidence given, and it was wholly insufficient to entitle the plaintiff to recover. It is fairly inferrible from the evidence, that the defendant was overseer of highways, and acting as such; the road was a public one; and that the defendant had no more interest in the taking and use of the gravel than any other member of the community. He had the express permission of the plaintiff to take the gravel, not in terms without compensation, but such is the just construction of it The permission given in 1853 was not limited as to time, and continued in 1854, there being no evidence of a revocation. But without evidence of such a permission, in words, as to 1854, it would be implied from what had taken place in the year previous, and the presence and participation of the plaintiff in the work, in the absence of proof of any claim to compensation. ground, therefore, exists for implying a sale of the gravel; on the contrary, the idea of a sale is completely disproved. The gravel was given to the public, and delivered to and applied by the defendant as an agent of the public to their use. respect to delivery, the plaintiff could not well have done more than he did by aiding in taking the gravel away. No In The validity of the permission, so far as it was necessary to protect the defendant from liability for what he did, is unquestionable. A parol license to enter upon land and remove part of the soil, is a complete justication of acts under it. (PierreVOL. XXII. 43 22 338 61h 22 Cook v. Travis. pont v. Barnard, 2 Selden 279.) Here the plaintiff assisted in what was done. The claim of the plaintiff is entirely destitute of merits; and the judgment of the county court must be reversed, and that of the justice affirmed. [MONROE GENERAL TERM, September 1, 1856. T. R. Strong, Welles and Smith, Justices.] Cook and others vs. TRAVIS. In an action of ejectment, it appeared that in 1818 the title to the premises in question was in Peter Young; who was the common source of title of the respective parties. In October of that year, S. S. Munn recovered a judgment against Young and A. Cutler, which was docketed on the 24th of October; and in November following, John Mowatt, jun. recovered a judgment against the same persons, which was docketed on the 12th of that month. Executions were issued on these judgments; and under that issued upon the Munn judgment, the premises were sold to H. D. Barto the latter part of December, 1819, or early in 1820. Under the one issued upon the Mowatt judgment, the premises were sold to W. Platt, about the same time. Peter Young was then in possession of the premises, and continued in possession until 1850, claiming title under a life lease from Jacob J. and John J. Young. No deed was executed to Barto, by the sheriff, until April 22, 1853. Barto conveyed to Jacob J. Young and John J. Young, by deed dated November 7, 1820, which was recorded the 17th of the same month. In the description of the premises in this deed, it was stated that they were purchased by Barto, at a sale by the sheriff, under the Munn judgment. John J. Young conveyed to Andrew J. Cutler and others, by deed bearing date May 22, 1847, proved June 27, 1849, and recorded the 8th of October thereafter. The defendant was in possession of the premises as tenant of Andrew J. Cutler. A deed was executed by the sheriff to Platt, on the sale to him, dated February 2, 1820, acknowledged the same day, and recorded the 26th of February, 1820. Platt conveyed the premises to J. S. Beebe, by deed dated February 21, 1820, and recorded April 2, 1828. Beebe conveyed to A. Cutler, by deed dated February 27, 1828, and acknowledged and recorded November 11, 1828. A. Cutler executed a mortgage of the premises to the N. Y. Life Insurance and Trust Co. dated November 29th, 1832, which was recorded on the 5th of December, 1832. This mortgage was foreclosed, and the premises were all sold under the judgment in the foreclosure suit, to the mortgagees, who took a deed from the sheriff Cook v. Travis. dated the 13th and recorded the 14th of February, 1852. The Trust Co. conveyed to E. Baker, by deed dated April 12th, 1852, acknowledged the 19th and recorded on the 31st of the same month; and the plaintiff deduced title from Baker. Held, 1. That A. Cutler, at the time of the execution of the mortgage by him to the N. Y. Life Insurance and Trust Co., having a regular paper title to the premises, duly recorded, through the judgment of Mowatt against Peter Young, and the records not showing any deed from the sheriff on the sale to Barto, the mortgagees were, under the recording acts, entitled to a preference for the mortgage over the title under the Munn judgment; unless at the time of taking the mortgage, they had notice of that title. 2. That the record of the deed from Barto to Jacob J. and John J. Young, containing a recital of the sale under the judgment, was not such notice. And that there being no record of a conveyance to Barto, and no evidence of notice that he made any claim to the premises, they were not required to search for a conveyance by him, and were in no way affected by the record of such conveyance. 3. That Peter Young being the acknowledged owner of the premises, in fee, and his entire title having been sold and conveyed under the Mowatt judgment, the possession by him, thereafter, being of the same character as before, without any apparent change, the fair inference, and legal presumption, from his continued possession, was that he was in under Platt, the purchaser and grantee of the sheriff, and those coming under him. 4. That the mortgage lien must be preferred to the title of the grantees in the deed from Barto. 5. That there was no such adverse possession as would avoid any of the conveyances in the plaintiff's chain of title. That Peter Young, while in possession, was estopped by the sale and conveyance under the Mowatt judgment, and by the decree in the foreclosure suit, to which he was a party, from setting up a title in himself; and that Henry and A. J. Cutler going into possession under Peter Young, they were estopped, in like manner with him, from disputing the title sought to be enforced by the plaintiff. 6. That the mortgage having priority, notice to the mortgagees, of the hostile title, at the time of the sale under the decree in the foreclosure suit, or, subsequently, to any person claiming under that sale, could not affect their title under the mortgage. That the protection which the mortgagees might claim, could not be impaired by a subsequent notice; and that it extended to all persons claiming title through the mortgage, whether they had notice at the time of the purchase or not. It is a general rule that the possession of land is notice to others of the possessor's title. But the rule is not universal. The notice is merely an inference; it may not arise in some cases; it may be repelled in others; and in others it may be restricted to some particular title or claim. The rule, like all rules of circumstantial evidence, must be governed by the particular circumstances of each case, and have a reasonable operation. Cook v. Travis HIS action was brought to recover possession of States 100 THIS acres of lot 44, Ovid, commenced August 1, 1854. The complaint stated that Baker, being the owner of the premises, agreed with Daniel Tyler to exchange the Lodi farm for Tyler's farm in Hector; and on the 21st of February, 1853, they exchanged conveyances accordingly, for their respective farms; Baker covenanting to give and insure to Tyler possession of the Young farm, and deeds were recorded. Tyler was to pay $1400 on the exchange, of which he paid $800. That Baker and Murlin, who were partners in trade, becoming embarrassed, conveyed, March 25, 1853, all their property to Cook, Carson and Murlin, the plaintiffs, in trust, to pay creditors. That the defendant took possession of the Young farm and refused to give it up to Tyler, and Tyler therefore brought an action in the supreme court for relief, and to have the bargain of exchange rescinded, and the Tyler farm reconveyed by the assignees, and the supreme court gave judgment accordingly; and the assignees, under the order of the court, conveyed to Tyler the Hector farm, and Tyler conveyed the Peter Young farm to the assignees, who became seised. That the defendant entered upon the possession and withheld it. The defendant answered, 1st. A general denial. 2d. That Andrew J. Cutler was the owner of the Peter Young farm, and on the 24th May, 1854, leased to the defendant till 1st May, 1854, and the defendant received and held possession as his tenant. 3d. That the plaintiffs, and those under whom they held, had not been seised or possessed within 25 years. 4th. That A. J. Cutler, and those under whom he held, had held adversely for more than 25 years, and the deeds under which the plaintiffs claimed were therefore void. 5th. That Tyler, claiming title and possession, served notice upon Cutler under the act to determine conflicting claims, requiring Cutler to appear and assert his title, &c. That Cutler appeared and pleaded, December 7, 1853, that he had been in possession for three years, and that issue was still pending. The present action was tried before Judge WELLES at the Seneca circuit, September, 1855. On the trial the following facts were shown: November 9, 1818, John Mowatt, jun. obtained a judgment in Tompkins common pleas, |