LIFE INSURANCE. EVIDENCE plaintiff to the defendant. OF DEATH. U. S. SUPREME COURT. Without contradictory evidence, these (the letters of administration) give the The Mutual Benefit Life Insurance plaintiff the right to recover." Co., plff. in error, v. Hattie B. Tisdale, deft. in crror. (October, 1875.) Letters of administration are not admissible to show the death of the assured, in a suit brought in an indi vidual character. the charge in this respect defendant excepted. In error to the Circuit Court of the United States for the District of Iowa. This action was brought on a policy of insurance issued to Mrs. Tisdale upon the life of her husband. Judgment was entered for plaintiff, from which defendant brings this writ of error. Held, error; that letters testamentary issued to an administrator by a probate court, as a general rule, are evidence only of their existence; that they prove that the authority incident to that oflice has been devolved upon the person Evidence was given on the trial tend- therein named; that he has been aping to show the death of Mr. Tisdale, pointed, and that he is executor or adon the 24th of September, 1866. It ministrator of the party therein assum consisted chiefly of his sudden and ed to have departed this life; that in an mysterious disappearance, under circumstances making probable his death by violence. It would seem from the charge of the judge that defendant gave evidence that he had been seen alive some months after the date of his supposed decease, The plaintiff offered in evidence let ters of administration upon the estate of her husband, issued to her by the County Court of Dubuque County. Defendant objected to the admission of this evidence. The objection was overruled, and the letters were read in evidence, to which defendant excepted. The judge charged the jury as fol lows: "The real question is whether Edgar Tisdale was dead at the time of issuing the letters of administration. It is incumbent upon the plaintiff to prove that fact. She has shown as evidence of that fact letters of administration issued to her as administratrix by the probate judge. It is the duty of the court to instruct you that this makes a prima facie case for the plaintiff, and changes the burden of proof from the action by such executor or administrator touching the collection and settlement of the estate of the deceased, they are conclusive evidence of his right to sue for and receive whatever was due to the deceased. That if the present suit had been brought by plaintiff as executor or administrator to collect a debt due her deceased husband, or to e tablish a claim arising under his will, the letters testamentary would not only have been competent, but conclusive, evidence of her right to maintain the action, and unimpeachable except for fraud; but as the suit was brought by plaintiff as an individual, to recover a debt claimed to be due her as an individual, the books abound in cases which show that a judgment upon the precise point in controversy can not be given in evidence, in anoth: r suit, against one not a party or privy to the record. Neither upon principle or authority was it proper, in the individual suit of Mrs. Tisdale against a stranger, to admit letters of administration upon the estate of her husband as evidence of fecting the title to real property. The his death. plaintiff, the lis pendens being filed, Judgment reversed, and new trial bought at his peril. The effect of the ordered. Opinion by Hunt, J. LIS PENDENS. MARRIED WOMAN. filing is to permit the judgment, if the court so adjudge, to have effect from the time of filing. And if the plaintiff succced, the purchaser subsequent to the filing is just as much bound as N. Y. SUPREME COURT. GEN'L TERM. the purchaser after judgment. In the THIRD DEPARTMENT. Sanders, applt, v. Warner, respt. A notice of Lis Pendens may properly present case the lien was adjudged to Judgment affirmed with costs. declared a lien upon the separate real JURISDICTION. CONTEMPT OF estate of a married woman. COURT. N. Y. COURT OF APPEALS. The People ex. rel. Woolf, respt., v. Jacobs, applt. Decided April 18, 1876. In a proceeding to punish for a contempt of court in violating an in junction, the court has jurisdiction to ascertain and include the amount of the costs and expenses of the proceeding as a part of the fine, and if it includes items not properly allowable, it is an erroneous decision merely, and not an excess of jurisdiction, which will render the commitment void. It cannot be reviewed on habeas corpus. The husband of the defendant commenced an action against her in 1869, for money lent, and at the same time filed a lis pendens. He got judgment. in 1873, and the debt was declared a lien against her real estate from the time of filing. The money lent was applied to the payment of mortgages on her separate estate. In 1870, she conveyed to plaintiff by warranty deed. This action was brought to restrain the sale of this real estate under the judg ment, the plaintiff claiming that the filing of a lis pendens in such an action. was a nuleity; that the cause of action. as stated in the complaint was not an Defendant was imprisoned under a action affecting the title to real prop-commitment for a contempt of court, erty within Sec. 132 of the Code, and in violating an order of injunction. that he was a bona fide purchaser The warrant directed him to be detainwithout notice. It was admitted that ed for thirty days, and also until he he had no notice beyond the con- should pay a fine of $2,470.54, made structive notice arising from the las up of three items; $2,068.29, the value pendens. An injunction was granted of property conveyed by defendant in in this action, but was vacated on the violation of the injunction; $252.25, trial, and the complaint dismissed. The the costs of reference, and $150 counsel plaintiff appeals. fees in the proceedings to punish for contempt. Defendant sued out a writ of habeas corpus, claiming a right to be L. B. Kern, for applt. M. F. Ufford, for respt. Held, That the action was one af- discharged on the ground that it was an error to include counsel fees, and ed the judgment. The plaintiff ap these being included in the fine made peals. the whole void. C. Bainbridge Smith, for applt. Samuel J. Crooks, for respt. Held, That the court had jurisdic tio to ascertain the amount of costs and expenses, and to include them as part of the fine (2 R. S. 538 § 21), and if in determining the amount it included items not properly allowable it was an erroneous decision on a matter submitted to its judgment, not an excess of jurisdiction, and did not render the commitment void, nor could it be reviewed on habeas corpus. People ex. rel. Tweed v. Liscomb, 60 N. Y. 559, distinguished. Judgment of General Term, reversing order of Special Term, affirmed. Opinion by Rapallo, J. JUSTICE'S COURT. PLEADING. AMENDMENT. Geo. W. Ray, for applt. Held, That under the loose modes of pleading allowed in justices' courts, the answer sufficiently set up the statute to justify and require the amendment, if necessary. It can be seen that the defendant intended to rely on some defence which needed no other facts than those which appeared on the note. The reason why the note had no legal force, although not stated, was apparent to any one who read it. Judgment of the County Court aflirmcd with costs. Opinion by Learned P.J. PRACTICE. N. Y. COURT OF APPEALS. Becker, applt, v. Howard et al, respts. N. Y. SUPREME Court. General TERM. A reargument will not be ordered to THIRD DEPARTMENT. Leonard, applt., v. Foster, respt. An answer alleging that a note was of or decide questions which may arise in other pending actions, when all the questions involved in the appeal have been passed upon on the former hearing. This was a motion for the reargument of a case which was affirmed by this court, without a written opinion, on judgment of the court below. Upon the appeal but one question was involved or presented, which was discussed in the opinion of the General Term. The motion for a reargument was made with a view to a settlement of some question which may arise in other pending actions, in regard to the same property. The action was on a note. The ansswer set up payment and that "the note is of no legal or binding force validity, if it had not been paid eleven years ago." The note had been due sixteen years. The justice refused to allow the answer to be amended on the trial, to plead the statute of limitations. For this error the County Court revers- decide questions as they arise, and hav Geo. W. Cothran for the motion. N. Y. SUPREME COURT. GEN'L TERM, A sheriff may be estopped from setting up claims to property he has levied upon by execution, by his acts and declarations inconsistent with the levy. Appeal from a judgment of non-suit against plaintiff at Circuit. This action was brought to recover the value of certain oxen claimed to be the property of plaintiff. In February, 1873, one R. was owner of said property, and on that day one L., a town collector, by virtue of a warrant, levied on and sold said prop perty to one B. B., after this, sold said property to plaintiff. The defendant as his defense showed that he was a deputy sheriff, and that prior to the collector's levy he had made a levy on said property under several executions, and that he took said property from plaintiff as such deputy. Plaintiff then proved that the deputy had helped post some of the notices of the collector's sale; was present at such sale and did not claim any levy on it, and other facts going to show an abandonment of his levy by the sheriff. This defendant denied. The court refused to let the question go to the jury and non su ted plaintiff. S. R. Pratt, for applt. J. B. Emmes, for respt. Held, That it was error to take the questions of fact from the jury. The facts were conflicting and should have been left to the jury. That his acts and declarations, if the evidence as to them was believed by the jury, would have estopped the sheriff from setting up his claim to property he has levied upon, and would be an abandonment of his levy. Judgment reversed. Opinion by Noxon, J. PROMISSORY NOTE. MORTGAGE. SUPREME COURT OF MISSOURI. Logan v. Smith et al. (My, 1876) An endorsee of a note, who takes it as collateral security for a debt, created at the time, with no notice of any equities between the original parties, and relying on the note for security, is a bona fide holder for value. 4 bona fide endorsee of a note acquires the same right in a mortgage given to secure it as the original payee would have had if no equities had existed against the note. This was a proceeding to foreclose a mortgage. On the 17th of January, 1870, the defendant Smith purchased of one Cowan the land described in the mort ge for the sum of $3,000. He paid $1,800 in cash and gave his note for the remaining $1,200, payable on the 25th of December, 1870, and executed this mortgage as security for the payment of said note. payment of the first note, and an agree-ple transfer of the note, any gre ter ment was made that Smith should raise right to enforce the mortgage security $500 and Cowan the balance necessary than Cowan had. Held, That unless the mortgage has been separately extinguished, as by release, the transfer of the note carries the mortgage with it, as an incident. The to pay off said note. Smith paid the $500, which was credited on his note to Cowan, but Cowan failed to raise any money. Smith subsequently paid all of Cowan's notes, and had the mort-mortgage itself is not a negotiable ingage satisfied of record. strument, and cannot be transferred as On the 7th day of August, 1870, such, but the endorsee of the note acplaintiff' loaned Cowan the sum of $1,- quires a right in the security afforded 200 and took a note therefor, and also by it, by reason of the stipulation conSmith's note as collateral security, Cow-tained in the mortgage itself. The an having informed him that it was se- plaintiff being unaffected by the agree cured by the mortgage. The mortgage ment between Cowan and Smith, has was never recorded or given to plain-the same rights in the mortgage which tiff, and was probably lest. Cowan soon Cowan would have had at the date of after became insolvent. Smith was transfer, if no such agreement had ever notified of the transfer of his note been made. prior to his payments on the Cowan The plaintiff being a bona fide holdnotes other than the $500 above men-er of the note, and as such entitled to tioned, and before his note became due. the benefit of the mortgage given to There was no evidence given that secure it, the judgment of the Chcuit plaintiff knew of any arrangement hav-Court is affirmed. ing been made that Smith should pay Opinion by Hough, J.; Wagner, and his debt to Cowan by paying Cowan's Napton, J.J., concurring; Sherwood, J., concurs in result. notes as aforesaid. The Circuit Court rendered judg ment for plaintiff on the note for the balance due and interest, and for foreclosure of the mortgage. FRAUDULENT CONVEYANCE. EVIDENCE. It is claimed that plaintiff was not N. Y. SUPREME COURT. GENERAL TERM. entitled to judgment because he could not be regarded as a bona fide holder of the note, inasmuch as he took it as collateral security. Held, That as plaintiff took the note as collateral security, not for a preexisting debt, but for a debt created at the time, and on the faith thereof, with notice of no equities, he became a holder for value. THIRD DEPARTMENT. Niles, applt., v. Fish et al., respts. Decided May, 1876. Where the debts which are the consideration of alleged fraudulent conveyances are bona fide, very strong evidence will be required to show that the conveyances themselves are fraudulent. Action by plaintiff, claiming to be a It is also claimed that plaintiff was judgment-creditor of defendant, to set not entitled to judgment because the aside conveyances. The referee found mortgage was not negotiable, and the for the defendant. The plaintiff applaintiff could not acquire, by the sim- peals. |