fore or after judgment. The deceased plaintiff left a last will and testament appointing executors to whom letters were issued after the sale.

James A. Ross, for plff.
Meyer Putzel, for deft.

Held, That the title of a purchaser upon a judicial sale is not affected by defects in the proceedings which rendered the judgment irregular and in consequence of which it might have been set aside. 62 N. Y., 628. The report of a referee appointed to compute, take proof, etc., in a foreclosure suit is not the report meant by 8 763 of the Code, but that that provision contemplates a decision by a referee which determines the rights of the parties to a controversy, as they would be determined by a verdict, decision of a judge, or interlocutory judgment. 21 Hun, 509. The action should have been revived by the personal representatives of plaintiff because he died before any decision in the action, 13 How. Pr., 118; but the omission to take this step was an irregularity merely, and did not render the judgment void, the judgment being in favor of the deceased party. Code Civ. Pro., § 765. The proceeding to sell under the judgment without the revival by the personal representatives of plaintiff is also a mere irregularity, and that only because of the irregularity of the judgment, not otherwise. 21 How. Pr., 34; 3 Edw. Ch., 416; 56 N. Y., 522.

Judgment upon the agreement rendered in favor of Joseph Finley Smith, without costs.

N. Y. COURT OF APPEALS. Lammer et al., applts., v. Stoddard, exrx., et al., respts.

Decided Nov. 23, 1886.

Under what circumstances the non-production of a bond and mortgage furnishes conclusive evidence of their payment. The statute of limitations begins to run against a trustee for a wrong committed by him ex maleficio or by implication from the time the wrong was committed. This action was brought to enforce a trust. It appeared that one J. L. died Feb. 27, 1831, leaving a widow and five children, two of whom were by a former marriage, and the other three being seven, six and three years of age. The personal estate left by J. L. amounted to $36,000. By his will he bequeathed $2,000 to his wife and the further sum of $3,000 in trust, she to receive the income thereof during the minority of her three children, and to apply the same toward their support, maintenance and education, and to pay $1,000 of the principal to each of them upon arriving at the age of twenty-one years. The will provided that said three thousand dollars should be invested in mortgages upon real estate to be approved of by the executors named; in case either or all of said three children died during their minority without leaving lawful issue the share of the one or more so dying the will provided should go to the testator's widow. The testator

appointed his wife and E., his son by his first marriage, executors. The will was admitted to probate, and the executors qualified and filed an inventory May 24, 1831. The $3,000 for the trust fund was paid to the widow June 7, 1831, and she invested it in a mortgage which was paid June 1, 1833, when she reinvested it in another mortgage which was paid Feb. 3, 1836. About the last date the widow loaned E., her co-executor, $5,000, and took from him a mortgage, dated Feb. 1, and acknowledged Feb. 5, 1836, for that amount payable Feb. 1, 1837. The mortgage shows that a bond was given to which the mortgage was collateral. Upon the real estate covered by this mortgage there was a prior purchase-money mortgage given by E., which was foreclosed in 1837 and the property sold on such foreclosure for an amount which left nothing to apply upon the second mortgage. E. was a merchant in New York, and was burned out by the great fire of Dec. 16, 1835, and thereby became bankrupt. He became solvent a few years later and so continued until he died, unmarried, in July, 1884, leaving an estate inventoried at about $65,000. By his will he bequeathed to his half-sister and his surviving half-brother each $1,000, and gave the remainder of his estate to other relatives. His other half-brother died in 1840, and his step-mother died Dec. 28, 1870. She always lived in Brooklyn, and E. lived in Brooklyn and in New York. During twenty years prior to his death he allowed

his half-sister $20 a month, which while she took care of her sick mother was increased to $26. After the death of her mother the mortgage given to her by E. was found to be uncancelled upon the record and E.'s half-sister was appointed administratrix of her mother's estate, and she and her brother then commenced this action to enforce the trust as to the $3,000 against the estate of E. The bond and mortgage were not in the possession of E.'s stepmother at the time of her death, and were not then shown to be in existence and were never heard of by either of the plaintiffs until shortly before the commencement of this action. The trial judge found as a matter of fact that E. had paid the amount of the mortgage to his step-mother in her lifetime, and refused to find that the trust fund was included in the $5,000 loaned to him. This finding was affirmed by the General Term.

P. V. R. Stanton, for applts.
Jesse Johnson, for respts.

Held, No error; that the finding was founded upon sufficient evidence and this court is concluded thereby; that under the circumstances the non-production of the bond and mortgage furnishes satisfactory and conclusive evidence of their payment. 83 N. Y., 49.

Also held, That the statute of limitations furnishes an equally conclusive defense to this action; that E. was not the actual trustee of the three thousand dollar fund, and never acknowledged a trust as to the money loaned him. He

bills of sale were given Dec. 29, 1883, by McIntyre to secure Southwick for a note given for prior loans and to secure Wells for his indorsement of notes held by a bank. Upon the same day the bills were given Southwick in writing appointed McIntyre agent for himself and Wells to sell the goods covered by the bills, and McIntyre agreed by the same in

Judgment of General Term, affirming judgment for defendant, affirmed.

Opinion by Earl, J. All concur.

CHATTEL MORTGAGE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Charles M. Preston, recr., applt., v. Thomas L. Southwick et al., respts.

Decided Nov., 1886. Where a debtor gives his creditor an absolute bill of sale of chattels upon an oral agreement that it is to be in fact for security and thereafter, but on the same day, the creditor in writing appoints the debtor his agent to sell the property covered by the bill of sale, the latter agreeing to turn over the entire proceeds to be applied upon the debt, and the creditor files his bill of sale in the proper clerk's office, it is not necessary to its validity as a chattel mortgage that the written agreement should also be filed.

This action was brought by a receiver in supplementary proceedings to recover the value of property of defendant McIntyre taken by the other defendants, Southwick and Wells, as alleged, in fraud of creditors of McIntyre.

The

proceeds to Southwick & Wells. McIntyre conducted the business. for some months and was paid $15 a week. Wells paid his indorsements. The bills of sale were filed Dec. 31, 1883. The agreement appointing McIntyre agent was never filed. The referee found that the property covered by the bills of sale was not worth more than Southwick & Wells' indebtedness and dismissed the complaint.

G. R. Adams, for applt.
Bernard & Fiero, for respts.

And

Held, That the judgment was right. Under the statute relating to chattel mortgages, Chap. 279, Laws of 1833, the oral agreement that the bills of sale should be mortgages, assuming this to be so, could not be filed. Only "the conveyance intended to operate as a mortgage" can be filed. of course there could be no filing of an oral agreement. It was subsequent to the giving of the bills of sale that the agreement appointing McIntyre agent was executed. If the oral agreement made the bills mortgages it was unnecessary to file this written agreement. That was no part of the mortgage and no part of the original con

also testified that the salesman was not authorized to collect bills, and that his authority was limited to taking orders and sending them forward for approval. Defendant testified that he did not know that any limitation was placed on the salesman's authority, and that when he paid for the goods the salesman stated to him that the payment of the bill to him would be proper. The salesman was authorized to visit defendant's place of business and solicit further orders. The jury found a verdict in favor of defendant.

Maning & Kendig, for applt. S. G. Hadley, for respt. Held, That in view of all the facts as defendant claims them to be, and which the evidence tends to support, it may well be held that the salesman had apparent authority to receive payment for and in the name of plaintiff. Judgment affirmed.

Opinion by Barker, J.; Smith, P.J., Haight and Bradley, JJ.,

concur.

MORTGAGE. TRUSTS.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The United States Trust Co. of N. Y., respt., v. Theo. M. Roche, trustee, et al., applts.

Decided Oct. 15, 1886.

A mortgage upon real property made before the enactment of Chap. 275, Laws of 1882, by a trustee appointed by a marriage settlement to receive the rents and profits of said property during the life of the wife and apply the same to her benefit free from the debts, control or management of her husband, is absolutely void as

being in contravention to the trust, notwithstanding that it was made with the sanction and under the direction of the Supreme Court and the proceeds were used in paying taxes levied upon the property.

An action to foreclose such a mortgage cannot be sustained upon the ground that the mortgagee has become subrogated to the rights of the prior lienors whose liens upon said property were paid off by the money advanced upon the mortgage.

In 1858 one F., in contemplation of marriage with S., entered into an agreement in writing with S. and T. by which, in consideration of the intended marriage which subsequently took place, F. sold and conveyed to T. certain real property in the city of N. Y. in trust from and after the marriage to receive the rents and profits thereof during the life of S. and apply them to her benefit free from the debts, control or management of her husband F. In Sept., 1881, the Supreme Court authorized the trustee to mortgage said property for an amount sufficient to pay taxes which had accumulated upon it since 1870. The mortgage was given in pursuance of this authority and the proceeds used for said purpose.

This action was brought against defendant Roche as the successor of T. to foreclose said mortgage. The answer denied the validity thereof upon the ground that it was rendered void by 2 R. S., 6th ed., 1110, § 78. The court below rendered judgment of foreclosure and sale for plaintiff upon the ground that the moneys obtained by mortgaging the property were so obtained and used for the purpose of paying prior liens which