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

George R. Timmerman, applt., v. Garret B. Hunt, impl'd., respt. Decided April, 1887.

Where a grantee of lands subject to the payment of a mortgage accepts such conveyance only under the representations of the mortgagee that such mortgage is paid and discharged and has ceased to be a lien on the premises, such mortgagee is estopped from afterwards asserting such mortgage against such grantee or those succeeding to his title.

Upon the question of estoppel the transac

tions between the grantor and the grantee showing the purposes for which

such conveyance was made and accepted

and what was done between them in carrying such purpose into execution is competent.

The fact that such purpose embraced a parol trust within the statute and void as between the parties to the conveyance, is of no importance after the trust has in fact been carried out as intended, and the matter has been settled and adjusted between them as contemplated when the

agreement was made. The decision of the court is legitimate

only so far as it treats and disposes of issues, and has nothing to do with defaults on appeal.

Appeal from judgment entered on decision of Special Term dismissing the complaint as to all the defendants.

Action was brought to foreclose a mortgage made by the defendant John W. Timmerman to secure the payment of the sum of $1,000, dated Oct. 3, 1877, covering three parcels of land of twenty-five acres, one-quarter of an acre and eighty-one and one-half acres. Defendant Hunt was grantee in a

warranty deed made by John W. and wife dated Dec. 17, 1877, and recorded Dec. 22, 1877, of the eighty-one and one-half acres among other things in terms subject to the mortgage of $1,000 to plaintiff, and contained this covenant, "all of which the party of the second part assumes and agrees to pay." The trial court found that in Oct., 1877, defendant John W. being indebted to Hunt several hundred dollars, requested him to take from him a conveyance subject to several mortgages not including the one in question; that Hunt should sell the premises, pay mortgages assumed and the indebtedness to himself, and account to the said John for the residue of proceeds; Hunt assented; that the deed was made to Hunt and recorded without his knowledge; that his attention was first called to the deed about Feb. 1, and he refused to accept it; that John told him the mortgage in question was of no consequence, and he would procure a discharge; that about the 21st of Feb. he brought the deed and an instrument signed by plaintiff of which the following is a copy: "Received of Garret B. Hunt one dollar, it being in full satisfaction of a certain mortgage executed by John W. Timmerman to me, being the same mortgage described in a certain deed of conveyance given by John W. Timmerman to Garret B. Hunt and recorded in the Erie County clerk's office on the 22d day of Dec., 1877, in Liber 386 of deeds at page 275. George R.

Timmerman."

That Hunt, believing the mortgage was discharged, accepted the deed pursuant to the arrangement; that shortly afterward he conveyed the premises subject to the two mortgages which he intended to assume to one Seibert, and afterward accounted to John W. | Timmerman for the proceeds of sale and settled with him.

Hunt & Whedon, for applt. Benj. H. Williams, for respt. Held, That the agreement between Hunt and Timmerman being by parol, and as a matter of mutual trust and confidence, was within the statute and void, but the parties to the deed having accomplished the purposes of it by a complete execution of the matter of trust and an adjustment pursuant to agreement, the question of its validity has no importance in this action.

That defendant Hunt having declined to accept the deed subject to plaintiff's mortgage and being afterwards induced to accept it on the production of the receipt and discharge made by plaintiff, the latter in view of the facts found by the court is estopped from asserting his mortgage to the prejudice of defendant Hunt, who had acted upon the faith of that receipt. Clarke 318; 32 N. Y., 105; 50 id., 575.

That it was a representation that the mortgage was satisfied satisfied and not a lien on the premises, and defendant was permitted to understand that the deed when accepted by him was released from the effect of the provision expressed in it, that it was subject to

the mortgage, and it was competent for defendant to prove the request of his grantor and this arrangement under which he covenanted to take the conveyance, and the circumstances of his refusal to accept the deed as it was drawn, and that under which he did accept it, with a view to the question of estoppel, and this was the only reason which made it and the evidence of his settlement with his grantor competent.

That defendant Hunt, having made the conveyance to Seibert with warranty, and accounted to his grantor, before he was advised that plaintiff made any claim under the mortgage, such claim after that time could not effectually be asserted without prejudice to Hunt. This situation was important for the defense so far as it rested on the ground of estoppel, which was a question depending upon the proof, and which ren dered the evidence of the accounting and settlement competent.

The trial court found that Oct. 12, 1877, John W. Timmerman conveyed the twenty-five acres of the land to Kelkenburg, who purchased and paid Hunt for it $1,250, and Hunt accounted for the money to John W., the grantor; that Kelkenburg was ignorant of the existence of the mortgage to plaintiff at the time of the purchase; that afterwards, Nov. 20, 1877, Hunt gave Kelkenburg his undertaking under seal, reciting the conveyance to him and the payment of the purchase price to Hunt and containing a covenant of the latter to defend him in the peaceable

possession of it against any person lawfully claiming the same or any part thereof. There was no appearance by or on behalf of Kelkenburg, and Hunt in his answer made no reference to this conveyance, or to his covenant with Kelkenburg.

Held, That any matter of defense to Kelkenburg was not within the issues, and while it may be that a defense in his behalf, upon the ground that he was a purchaser in good faith, without notice of the unrecorded mortgage of plaintiff, could be made effectual in this action, such defense is not within any issue made by the answer. The court is only to deal with the issues presented, and the trial and the decision of the court is legitimate only so far as it treats and disposes of the issues, and has nothing to do with defaults on appeal.

count must present a clear case to require the surrogate to grant the application. Where it appeared that there were funds of another estate in which the testator was interested but of which no part had been set apart for him and none had come into possession of the executor before his accounting and discharge, Held, That the proper course would be to appoint an administrator de bonis non, who could compel an accounting and payment of the portion due to the testator.

In Feb., 1873, one S. died leav ing a last will and testament, in which he appointed his wife and his son W. executors. The will was admitted to probate and both executors qualified. S. gave to his son R. one-tenth of his property. In July, 1873, R. died leaving a will in which he appointed the respondent P. his executor. R.'s will was admitted to probate, and P. qualified as executor. In it R. bequeathed one-half of his estate to the appellant, his widow. In the winter of 1884 P. petitioned the surrogate for a judicial settlement of his accounts as executor and trustee under the will of R. and to be allowed to resign his trust and that his letters testa

firmed.

Opinion by Bradley, J.; Smith, P.J., and Haight, J., concur.

EXECUTORS.

N. Y. COURT OF APPEALS. In re estate of Soutter. Duchess D'Auxy, legatee, applt., v. Porter, exr., respt.

Decided May 3, 1887.

One who seeks to compel an executor who has once accounted to make a further ac

was issued which was served on all the parties interested, and P. filed his account which was duly examined and the surrogate decreed that the account as filed be judicially settled and allowed and that upon P. making certain payments to the appellant and the trustee appointed in his place, his letters should be revoked and his resignation accepted. The payments were made as required. Afterward, on March 31, 1886, on the application of the appellant,

the surrogate made an order that P. should show cause why he should not file a further account as executor of the will of R. and why the former decree should not be set aside and the account be opened. P. appeared before the surrogate.

It was not disputed upon the hearing that P. had accounted for every dollar that came into his hands as executor of R. The facts upon which a further accounting was asked are these: When S. the father of R. died, his son W., who was one of his executors, and P. were in partnership as bankers and brokers under the firm name of S. & Co. After the death of S. his executors loaned and placed in the hands of S. & Co., as a firm, a large amount of the assets of his estate, and on Sept. 28, 1885, when they failed, they were largely indebted to that estate. There was no proof that any portion of the estate of S. came to P. as executor of R., or was ever set apart to the estate of R., or that the latter estate has been damaged by the delay. The application was denied and the order denying the same was on appeal to the General Term affirmed.

Lewis Sanders, for applt.

Stewart L. Woodford, for respt. Held, No error. That the proper remedy of the appellant is to have an administrator de bonis non with the will annexed of her husband's estate appointed, who can call the executors of S. to account and compel the payment by them to him of whatever may still be due under the will of S. to

TERM. THIRD DEPT. Edwin R. Lawrence, applt., v. Dwight B. Baker, respt.

Decided May, 1887.

When a debtor, owing a larger sum, sent the creditor his note for a certain amount, which the creditor at once had discounted at a bank in the regular course of business, Held, that the payment of the note by the debtor was not an acknowledgment of his indebtedness to the creditor and did not take the case out of the statute of limitations.

It seems that the giving of the note for the smaller sum was not an acknowledgment or new promise, under Code Civ. Pro., § 395, sufficient to save from the effect of the statute of limitations the balance due beyond the note. It was a new promise only to the extent of its face.

Action to recover for $594 worth of lumber sold between April 1 and July 1, 1878. The defense was the statute of limitations. The action was begun Sept. 30, 1884. About July 4, 1878, defendant sent plaintiff his note

for $300 payable in three months which plaintiff had discounted at once. Plaintiff claimed there was still due $162 with interest from Oct. 1, 1878. At Circuit plaintiff was nonsuited.

J. I. Curtis, for applt.
G. Z. Snider, for respt.

Held, That the nonsuit was right. The $300 note was a new promise, but it seems doubtful whether it is a new promise to any greater extent than its face. We doubt whether it has any effect in reviving the indebtedness on the $162 alleged to be still due. And if we should concede that it had such effect as to the $162, still the time when it takes effect is the time when the new promise (the note) is delivered. 77 N. Y., 189. This was about July 4, 1878, and the action would be barred. As to the note itself the statute would begin to run from its maturity, Oct. 4, 1878. No direct proof is given as to when the note was paid. And if the note had been paid one week before its maturity the argument of plaintiff fails. If plaintiff desired to avoid the effect of the statute he should have shown explicitly when the note was paid. But if the note was paid on the day when due plaintiff is no better off. Defendant had to pay it. It belonged to a bank, was negotiable, and defendant could not defend as against it upon the ground that he owed plaintiff nothing. Defendant, therefore, having in any event to pay the face of the note his payment cannot be construed as an admission of an indebtedness to plaintiff.

Vol. 26-No. 18b.

Judgment for defendant on nonsuit.

Opinion by Learned, P.J.; Mayham, J, concurs; Landon, J., dissents.

BILL OF PARTICULARS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

John F. Klumpp et al., respts., v. Guy H. Gardner et al., applts.

Decided May 13, 1887.

Where a motion for a bill of particulars as

to any portion of a complaint has been made and denied a motion for a bill of particulars as to any other part of the same complaint cannot be made without leave of court.

Appeal from order denying motion for a bill of particulars.

It appeared that before answering defendant moved to have the complaint made more definite and certain, or, in default thereof, for a bill of particulars as to a portion of the causes of action stated in the complaint. On the motion in question he asked for a bill as to the second cause of action.

Henry P. Starbuck, for applts.
J. H. Kitchen, for respts.

Held, That the motion was properly denied. The adjudication upon the prior motion seems to be a bar to the maintenance of the motion from the order denying which this appeal is taken. It is true that in the first motion a bill of particulars was not asked for as to the second cause of action mentioned in the complaint; but having made a motion for a bill of particulars as to any part of the complaint, and such motion hav