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Statement of case.

op. at p. 476; Davenport v. Mason, 15 Mass. R., 90; McDougall v. Fogg, 2 Bosw., 387; Johnson v. Titus, 2 Hill, 606.) It was competent to show that plaintiff was never rightfully in possession of bond, and that its delivery was induced by fraud. (Boyce Ex'rs v. Grundy, 219; Fanchot v. Leach, 5 Cow., 506.) There is no delivery without intent to deliver. (Ford v. James, 4 Keyes, 300.) There was no consideration for the bond. (Parmalee v. Thompson, 45 N. Y., 58.)

George W. Parsons for the respondent. The sole question is, whether the final agreement is valid or not. (Fry v. Bennett, 5 Sand., 54; Corning v. Meir, 2 E. D. Smith, 314.) Other facts stated in complaint were immaterial, and not necessary to be proven. (Code, $ 168; Oechs v. Cook, 3 Duer, 161.) The terms and condition of the bond could not be varied by parol evidence. (See 1 Greenl. on Ev., $$ 275, 276, 281, and cases cited in notes; Peacock v. Monk, 1 Ves., Sr., 128; Woodbridge v. Spooner, 3 B. & A., 233; Smith v. Battaras, 26 L. J. Exch., 232; Hovey v. American Ins. Co., 2 Duer, 554; Devlin v. The Mayor, etc., 4 id., 337; Cleves v. Willoughby, 7 Hill, 83; Schermerhorn v. Vanderheyden, 1 Johns., 139; Maigley v. Haner, 7 id., 341; Winchell v. Latham, 6 Cow., 690; Wells v. Baldwin, 18 Johns., 45; Sherman v. The Mayor, etc., 1 Comst., 316; McCrea v. Purmort, 16 Wend., 473; McCurtie v. Stevens, 13 id., 527; Grout v. Townsend, 2 Denio, 336; Armstrong v. Munday; 5 id., 166; Lamatt v. The Hudson R. Fire Ins. Co., 17 N. Y., 199; Durgin v. Ireland, 14 id. [4 Kern.), 322, and note; Fitzhugh v. Winans, 9 id., 559; Worrall v. Munn, 5 id., 229; Gridley v. Dole, 4 Com., 486; Webb v. Rice, 6 Hill, 289; 2 Ker., 561, 566; 1 Peters, 600; 6 id., 59; 31 Barb., 267; 30 N. Y., 493; 5 Duer, 202.) Nor can parol evidence be used to show that it was delivered on any conditions. (4 Pick., 520; 8 Mass., 238; 23 Wend., 54; 5 N. Y. [1 Seld.], 229.)

Opinion of the Court, per ALLEN, J.

ALLEN, J. The bond upon its face discloses the consideration upon and for which it was given. The transfer and delivery by the plaintiff, to his former partner, of the effects of the firm for collection and sale, is in substance declared by the recital to have been the actual, as it was a reasonable and sufficient consideration, for the bond conditioned for an accounting by that partner, and the payment to the plaintiff of all sums to which he should be entitled from the avails of such effects.

It was not competent for the defendants to vary or contradict this recital by parol evidence. It was a substantive part of the agreement, and not like the consideration clause of a conveyance or other instrument, which may within certain limits be explained and varied by parol. (Renard v. Sampson, 2 Kern., 561 ; Halliday v. Hart, 30 N. Y., 474.) Neither could the delivery of the bond be shown by parol as in escrow, or conditional. It was delivered to the agent of the plaintiff, which was of the same effect as if delivered to the plaintiff in person. If a deed is delivered to the party or his agent, and not to a stranger, it is absolute, and parol evidence of conditions qualifying the delivery is inadmissible. (Worrall v. Munn, 1 Seld., 229; Gilbert v. N. Am. F. Ins. Co., 23 W. R., 43.) The defendants in effect admit by their answer the absolute delivery of the bond, but allege that it was in consideration that the plaintiff should deliver to the obligors or their principal the books of the firm of Barker & Cocks. As a condition, it could not within the authorities be alleged to defeat the delivery and the validity of the bond. But the judge at Special Term has found adversely to the allegations of the answer, and the evidence did not establish an agreement to deliver the books. The defendants. were allowed to give in evidence all that passed between the parties on that subject, and it was clearly insufficient to prove that the bond was given upon any other or different consideration than that expressed in the recital. Questions asking for the conclusions of the witness, rather than for facts, were excluded, and properly so. The witness had stated all

Statement of case.

that had taken place, and the negotiation of the parties prior to the execution of the bond, and from the facts as proved, it was the province of the court to determine, so far as the question was open for consideration, whether the delivery of the books was the sole consideration of the bond. The court excluded evidence of what the plaintiff's agent said at the time of the delivery of the bond, but afterward it was proved without objection. The evidence was not competent. The only effect that could be claimed from it was either to vary the condition of the obligation, or prove that the delivery was conditional, and neither was admissible.

It was not claimed that the non-delivery of the books in any way affected the ability of the principal to perform the condition of the bond, or that the defendants or their principal lost anything, or were in any manner embarrassed by reason of such non-delivery. There was no claim for equitable relief on the ground of fraud or mistake, and no foundation for such relief in the evidence. There was no equity in the defence attempted to be set up, if it had been proved, entitling the defendants to relief of any kind against their legal liability.

The judgment must be affirmed.
ALLEN, J., reads for affirmance.

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49 111 109 210)

49 118 Eliza MALLONEY, Appellant, v. John Horan, Respondent.

113 300

49 111 To establish an estoppel in pais, a party must show that the acts, declara- e173 2487

3489 tions or omissions, out of which he claims the estoppel arises, influence: f173

his conduct or that he took action in the matter in reliance thereon. A judgment in an action brought by a receiver in behalf of creditors against

the debtor and his wife, setting aside a deed from them to a third person, and a deed from their grantee to the wife, and directing a sale of the premises, where it does not appear that there were any, averments in the pleading raising the question of her inchoate right of dower, and no recogaition or provision in regard to that right is contained in the

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Statement of case.

judgment, does not operate as an estoppel by record to defeat the wife's
claim for dower in the premises upon the death of her husband. (GROVER,

J., dissenting.)
The rule that a judgment is final and conclusive upon the defendant as to all

matters which might have been litigated and decided in the action, is
limited and applicable to such matters only as might have been used as
a defence in that action, such as if again considered would involve an

inquiry into the merits of the former judgment. The release by a wife of her inchoate right of dower operates only against

her by way of estoppel; it must accompany or be incident to a conveyance by another, and binds only in favor of those who are privy to and claim under the title created by that conveyance, and if the conveyance is void or ceases to operate, she is again clothed with the right which she has released. (The case of the Manhattan Co. v. Evertson, 4 Paige,

457, distinguished, and that of Meyer v. Mohr, 18 Robt., 333, questioned.) The rule that a fraudulent conveyance is valid as between the parties

thereto, does not operate to work a merger of a prior lesser estate owned by the grantee when the conveyance has been set aside because of the fraud. To the penalty of the loss of the estate conveyed will not be added the further one of the loss of another interest on the ground of merger.

(Argued March 28, 1872; decided April 2, 1872.)

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APPEAL from the judgment of the General Term of the Supreme Court in the second judicial district, affirming & judgment in favor of defendant, entered upon the decision of the court at Special Term.

The action is brought to recover dower in premises situate in Queens county.

Patrick Malloney (the husband of the plaintiff) being the owner of the premises on the 11th of November, 1864, executed a conveyance of them to his brother, Michael Malloney. The appellant united in this conveyance and released her dower. Michael Malloney, on the 28th of December, 1864, conveyed the premises to the appellant. Both conveyances were recorded in Queens county.

In March, 1865, a judgment was recovered against Patrick Malloney for $1,946.14; and in the same year a receiver of the property of the judgment debtor was appointed.

On the 10th of April, 1865, the receiver brought an action in the Supreme Court against Patrick Malloney, Eliza Mal

Statement of case.

loney and Michael Malloney, for the purpose of having the deeds set aside and declared fraudulent and void as to the creditors of Patrick Malloney, All the parties appeared and answered the complaint. On 17th of November, 1865, judgment was rendered, declaring that the conveyances were made with the intent to hinder and defraud creditors, and Fere fraudulent and void as to the creditors of Patrick Malloney, and directed that the premises should be sold, and that the parties in possession deliver possession to the purchaser.

The premises were advertised for sale by the receiver. Prior to the sale, Patrick Malloney died. A few hours before the sale, the plaintiff called upon defendant at his place of business (where she also found John J. Conklin, the purchaser), and requested him to attend and bid, informing him that she had no claim upon the property.

Plaintiff, Conklin and defendant were all present when the terms of sale were read (by which it was stated that the premises would be sold subject to a mortgage held by the trustees of Union College for $750), and all were present when Conklin purchased for $6,100, subject to the Union College mortgage.

Conklin assigned his bid to defendant and the receiver conveyed to him. Upon these facts, the court directed a dismissal of the complaint.

Samuel Hand and A. A. Redfield for the appellant. The right of dower is a favorite of the law, and will be enconraged rather than defeated. (1 Story's Eq., SS 6, 29; In re Sipperly, 44 Barb., 370.) No act of the husband can prejudice this right. (Denton v. Manny, 8 Barb., 618; 1 R. S., 742,

16.) A release of dower operates only as a release, not a transfer. If the accompanying conveyance is canceled or ceases to operate, the release falls and the right revives. (Harrison v. Eldridge, 2 Halst., 392; Douglas v. McCoy, 5 Ohio R., 527; Powell v. Morison, etc., Manuf. Co., 3 Mason, 347; Hall v. Savage, 4 id., 273; Barker v. Parker, 17 Mass., 56, and cases cited below; Summers v. Babb, 13 Ill., 483 ;

SICKELS - VOL. IV. 15

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