THIRD DEPARTMENT, SEPTEMBER TERM, 1880. us rests upon the papers submitted on the motion for a receiver. On these papers it appears that the defendant obtained from the plaintiff, who sues by her committee, a large amount of property, principally real estate, valued at about $20,000, without consideration; that the grantor, as is found by inquisition obtained in due form, was at the time of unsound mind, incapable of managing her affairs, to the defendant's knowledge, and that, independent of the property so obtained, the defendant is wholly insolvent. These alleged facts stand on this motion substantially undenied, and with other undisputed formal averments in the complaint, make a proper case for the appointment of a receiver. It is true the defendant denies in general terms that he obtained the conveyances by duress, undue influence, or by means of trick, artifice or fraudulent practice; and he asserts that they were voluntarily executed and delivered by the grantor, in the exercise of an unfettered will and an unclouded reason. But there is no denial of the alleged facts that the deeds were without consideration, or that the grantor was, according to the inquisition, a person of unsound mind and incapable of managing her affairs with judgment and propriety. The inquisition was presumptive evidence of her incapacity. (Van Deusen v. Sweet, 51 N. Y., 386, and cases there cited.) It is also established that the defendant is insolvent, independent of the property charged to have been fraudulently obtained by him, and that the annual avails and profits derivable therefrom is from $600 to $800, exclusive of taxes and assessments. It also appears that he has been in receipt of such rents and profits for several years, and has thus been fully recompensed for all repairs and improvements made by him. As the case was made at Special Term on the motion for a receiver, the order was properly granted. The order appealed from should be affirmed, with $10 costs, and expenses for disbursements. MARTIN, J., concurs. LEARNED, P. J., dissenting: The appointment of a receiver is, in a certain sense, discretionary. But discretion is not without rules. And I must state briefly why I think those rules have not been observed. THIRD DEPARTMENT, SEPTEMBER TERM, 1880. An action of ejectment would lie in this case. (Van Deusen v. Sweet, 51 N. Y., 378.) This present action seeks the same relief as would be obtained in an action of ejectment—that is, the recovery of the land from one who claims to own it in fee. In an action of ejectment a receiver would not be appointed. (Guernsey v. Powers, 16 Sup. Co. N. Y., 78.) By analogy, none should be appointed in this action. The ordinary rule is that a receiver will not be appointed where a defendant is in possession under a legal estate. (Edw. on Rec., 24 and cases cited.) This rule is only departed from in cases of fraud, clearly proved and of imminent danger, and strong ground of title in the plaintiff. In the present case the facts in the complaint tending to show fraud, are on information and belief. The only additional facts proved by affidavits on the part of the plaintiff, material to the question of fraud, are to the effect that the defendant paid nothing and that he said that Sarah Mitchell was a crazy old fool. This, the defendant denies on oath. He also denies all fraud. And the only fact which can be said to be proved is, that there was no money consideration. The defendant in his affidavit avers that the consideration was that he should support Sarah Mitchell during her natural life. There is also the fact that the jury de lunatico found that Sarah Mitchell had been a lunatic for nine years previous. This finding was in 1878. The deeds had been executed in 1870 and 1871. It is true that this is admissible evidence. But any one who has had any experience knows how easy it is for those who conduct such proceedings to procure a verdict which will "overreach" any conveyance which the parties conducting the proceedings may desire to attack. Of course, the defendant was no party to the proceedings. It appears, too, by the papers, that there had formerly been some disagreement between Sarah Mitchell, the alleged lunatic, and the parties who now control these proceedings; the merits of which cannot be understood till the trial. We have then, only these facts, that the defendant, in consideration of an agreement to support Sarah Mitchell, received the deeds in question, and that she was eight years after declared to be, and to have been, a lunatic. Now, the appointment of a receiver takes THIRD DEPARTMENT, SEPTEMBER TERM, 1880. away the property from the defendant, who claims to own it in fee, and withholds it from him during the litigation. It decides upon the merits that he is not the owner. And so long as the plaintiff chooses to protract the litigation, the defendant, without a trial, is kept out of property to which he has a legal title. If it is right to appoint a receiver in this case, I see no reason why one should not be appointed in every action of ejectment, where the plaintiff can show that the defendant is poor and irresponsible. I think that courts should be very cautious how they take away from a defendant, without a trial, the possession of land to which he confessedly has a legal title. I think, therefore, that the order should be reversed. Present-LEARNED, P. J.; BOCKES and MARTIN, JJ. Order affirmed, with $10 costs, and disbursements. JOHN S. CAGWIN, APPELLANT, v. THE TOWN OF HANCOCK, RESPONDENT. Town bonding-when an affidavit of the assessor that the consent has been signed by the requisite number of tax-payers is conclusive evidence thereof-1866, ch. 398, § 2. Section 2 of chapter 398 of 1866, authorizing the town of Hancock to issue its bonds to aid in the construction of a railroad, upon obtaining the consent in writing of a majority of the tax-payers thereof, provides that "the fact that a majority of the said tax-payers, representing a majority of the taxable property, has been obtained and acknowledged or proved, shall be proved by the affidavit in writing of one of the assessors of the town, or city, or by the affidavit of the town or county clerk, and shall be indorsed upon or annexed to said written consent, and the said consent and affidavit shall be filed in the town clerk's office of the town, and a copy and it shall thereof in the county clerk's office of the county be the duty of the said assessors, and town and county clerks, to make such affidavit when said consent shall have been obtained." Held, that the object of the statute was to enable one about to loan money to the town to ascertain how the question, as to whether or not the requisite consent had been obtained, had been decided by the officers to whom the decision thereof had been intrusted; and that one purchasing the bonds in THIRD DEPARTMENT, SEPTEMBER TERM, 1880. good faith, after the affidavit required by the act had been duly made and filed, and while the proceedings remained unreversed, was protected thereby; and that the authority of the commissioners of the town to issue the bords could not be impeached by showing that such consent had not, in fact, been signed by the requisite number of tax-payers. (BOCKES, J., dissenting.) APPEAL from a judgment in favor of the defendant, entered upon the report of a referee. The action was brought to recover the amount due upon certain coupons attached to bonds alleged to have been issued by the defendant to aid in the construction of the New York & Oswego Midland Railroad. The bonds were claimed to have been issued under chapter 398 of 1866, chapter 695 of 1866, chapter 917 of 1867, chapter 61 of 1868, chapter 84 of 1869, and chapter 794 of 1870. The defense was that the consent of the tax-payers to the issue of the bonds required by the act had not been obtained, and the referce upon the trial found this to be the fact. H. & W. J. Welsh, for the appellant. The consents in writing, filed and recorded, have been made by the statute, the record evidénce upon which the officers were authorized to act, and cannot be impeached by parol evidence in a collateral proceeding. (Pierce v. Wright, 45 How. Pr., 6; People v. Zest, 23 N. Y., 140.) The defendant is concluded by the affidavit of the assessors and cannot in this action question the sufficiency of the consents to bond. (Bank of Rome v. Village of Rome, 19 N. Y., 24; Coms. Knox Co. v. Aspinwall, 21 How. U. S., 546; Shell v. Telfore, 4 N. Y. Leg. Obs., 307; Commissioners of Douglas Co. v. Bolles, 4 Otto, 109; Pierce v. Wright, 45 How. Pr., 7; People v. Mitchell, 35 N. Y., 552.) W. & J. B. Gleason, for the respondent. All the world are bound to know that towns of the State of New York have, at common law, no power to bond for railroads, and that no such power can exist unless it has been expressly conferred by statute. (See Town of South Ottawa v. Perkins, 4 Otto, 260, and also 258; Wiesmer v. Village of Douglas, 64 N. Y., 92; 13 Wall., 304; 23 N. Y., THIRD DEPARTMENT, SEPTEMBER TERM, 1880. 440, 459; 3 Wall., 327; People v. Mitchell, 35 N. Y., 551.) Where there is a total want of authority to issue bonds, there can be no bonâ fide holding of them. (Township of Oakland v. Skinner, 4 Otto, 255; Town of South Ottawa v. Perkins, Id., 258, 260; Wiesmer v. Village of Douglas, 64 N. Y., 92; 23 Id., 439, and 24 Id., 114; 33 Id., 224; 62 Id., 465; 75 Id., 397). The affidavit of the assessors in nowise estopped the town from showing that the requisite consents were not given by a majority of the tax-payers, nor for a major part of the property on the roll. The question is no longer a debatable one in this State. (People ex rel. Town of Springport v. Teutonia Savings Bank, 25 N. Y., 397; Canada R. R. Co. v. Hutton, 18 Hun, 116–124; and Same v. Barrett, Id., 206; People v. Mead, 36 N. Y., 229; 55 Id., 180; 10 Id., 334; Starin v. Town of Genoa, 23 Id., 440, 451, 452; Town of Wellsboro v. N. Y. & C. R. R. Co., 76 Id., 182, 185.) LEARNED, P. J.: The plaintiff is a bona fide holder; that is to say he, or the person to whose rights he succeeded, had no actual notice of the alleged defects in the proceedings, and parted with value for the coupons. The remark, in Township of East Oakland v. Skinner (94 U. S., 255), that, when there is a total want of authority to issue bonds, there can be no such thing as a bona fide holding, cannot apply to a case like the present. In that case the court held that there was no statute which authorized the corporation, under any circumstances, to issue bonds; and the courts say that it was not a case of an informality or irregularity, fraud, or excess of authority. Numerous cases, one of which is that of Commissioners v. Bolles (94 U. S., 104), and another is that of County of Cass v. Gillett (100 U. S., 585), show that, where the alleged defect is in the proceedings to authorize the issue of the bonds, there may be a bonâ fide holder, whose rights as such will be protected. It may be admitted that the commissioners, in such cases as the present, are not town officers. (Horton v. Town of Thompson, 71 N. Y., 513.) Their acts, therefore, are not those of an ordinary agent, acting for his principal. And the familiar rule, that the |