FIRST DEPARTMENT, JANUARY TERM, 1885. plaintiffs for the balance of the price of the lumber claimed in the action, together with the interest which had accrued upon it, and the judgment and order should be affirmed. DAVIS, P. J., and BRADY, J., concurred. EUGENE A. HOFFMAN AND OTHERS, EXECUTORS, ETC., OF SAMUEL V. HOFFMAN, DECEASED, APPELLANTS, v. PHILIP SMITH AND OTHERS, RESPONDENTS. Undertaking on appeal — when invalidated by the refusal of the sureties to justify — Code of Civil Procedure, sec. 1335. An undertaking to stay proceedings upon a judgment during the pendency of an appeal to the General Term, having been served upon the plaintiffs, the sufficiency of the sureties was excepted to. The sureties having failed to appear and justify, the proceedings were twice adjourned. After the second adjournment the attorneys for the plaintiffs were notified that the sureties had understood that the undertaking was only for the costs, and that they did not intend to justify. The plaintiffs' attorneys then served a notice withdrawing their notice of excep tion and waiving justification. Held, that the failure of the sureties to justify rendered the undertaking inoperative, and that no action would lie thereon by the plaintiffs. APPEAL from a judgment recovered on the dismissal of the plaintiffs' complaint at the circuit. Wheeler H. Peckham, for the appellants. James M. Smith, for the respondents. DANIELS, J.: The action was upon an undertaking given upon an appeal from a judgment, in an action for the foreclosure of a mortgage, to the General Term of this court, where the judgment was afterwards affirmed. The undertaking was given in the form required to stay proceedings upon the judgment while the appeal should be pending. Notice of exception to the sufficiency of the sureties was served by the plaintiffs, and that was followed by a notice for their justification. At the FIRST DEPARTMENT, JANUARY TERM, 1885. time fixed for that purpose the sureties did not attend to justify and the proceedings were adjourned, and at the adjourned day a still further adjournment was agreed upon by the counsel. After that had taken place, and during the same morning, the attorney for the plaintiffs was informed by the defendants' attorney that the sureties understood the undertaking to be a bond only for costs and that they did not propose to justify. The next day after this information was communicated, the attorneys for the plaintiffs served a notice withdrawing their notice of exception and waiving the justification of the sureties; but the court at the trial held that the sureties had at that time been discharged from their liability upon the undertaking and dismissed the plaintiffs' complaint. The practice prescribed for this proceeding has been directed by section 1335 of the Code, and it has been provided where the sureties shall justify, "if the judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof; and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance is the same as if the undertaking had not been given." The effect of a failure to justify by the sureties was held, in Manning v. Gould (90 N. Y., 476), to relieve them from liability upon the undertaking and to entitle the respondent to proceed upon the judgment the same as though no undertaking had in fact been given. And this authority seems to control the disposition which should be made of this appeal, for before the notice withdrawing the exception and waiving the justification of the sureties was served, they had positively refused to justify. That refusal proceeded upon their discovery of a previous misapprehension as to the nature of the obliga tion they had entered into and it was entitled to the effect, under this provision of the Code, of relieving them from farther liability. When the notice was served excepting to their sufficiency, and it was followed by a notice for their justification, and a time had been designated for that purpose, the sureties upon discovering the true nature of the undertaking refused to go any farther in the proceeding, and that placed them, under this provision of the Code, in the same condition as if the undertaking had not in fact been given. It discharged them, in other words, from the liability previously assumed, and the attorneys for the plaintiffs in the action could not deprive FIRST DEPARTMENT, JANUARY TERM, 1885. them of this discharge by afterwards serving a notice withdrawing the exception and waiving their justification; for the facts which had previously transpired had relieved the sureties from their obligation, and their liability could not be restored without their consent by any act whatever on the part of the attorneys for the plaintiffs. To have that effect the notice should have been served before the sureties in fact refused to justify. As much as that was intimated, though not decided, in the case already mentioned. The judgment was justified by the evidence, and it should be affirmed. DAVIS, P. J., and BRADY, J., concurred. Judgment affirmed. HENRY BRAM, RESPONDENT, v. GEORGE ADAM BRAM Deed to husband and wife — they become seized of the entirety —failure of considera- This action was brought to foreclose a mortgage given by one George A. Bram to After the execution of the mortgage Zorntlein brought an action and procured a Held, that as the plaintiff was not made a party to the action his rights under the mortgage were not affected thereby. 34 487 60 75 34 487 67 234 FIRST DEPARTMENT, JANUARY TERM, 1885. That as the deed was given before the mortgage it was proper not to make the grantee a party to this action to foreclose the mortgage. APPEAL from a judgment in favor of the plaintiff, recovered on a trial at Special Term. A. J. Dittenhoefer and David Gerber, for the appellants. H. M. Geschiedt, for the respondent. DANIELS, J.: The judgment recovered in the action was for the foreclosure of a mortgage and the sale of mortgaged property. The mortgage was given for the purchase-price of the property described in it. It had been conveyed to and was owned by Jacob Bram and Babeta Bram, who were husband and wife, and they executed and delivered a full covenant warranty deed of the property on the 30th of September, 1881, to George Adam Bram, and he, to secure the purchase-price at the same time, executed and delivered to them the mortgage in suit, and they thereupon assigned it to the plaintiff. It has been urged in support of the appeal that the mortgage was given to secure the purchase-price of property sold in violation of the terms of the statute, forbidding any person to sell any pretended right or title to lands or tenements, of which the grantor has not been in possession for the space of one year before the grant, but no evidence whatever is contained in the case which would render it subject to the control of this statutory provision. The facts, on the contrary, indicate that the grantors in the deed were in the actual possession of the property, and that such possession had been enjoyed by the grantee since it was executed and delivered to him. It was proved on behalf of the defendants that Babeta Bram, one of the grantors in the deed to George Adam Bram, on the 23d of September, 1881, executed and delivered to William Zorntlein a deed for one-half the property afterwards conveyed to George Adam Bram, and for that reason it has been objected that the consideration for the mortgage had in part at least failed, as the entire property was intended to be conveyed by the terms of the deed executed and delivered to him. But as this deed was executed by the wife alone, whose interest in the property was created by a joint FIRST DEPARTMENT, JANUARY TERM, 1885. deed to herself and her husband, it was inoperative in the way of conveying any present interest whatever to the grantee named in it. Where a deed is executed and delivered to a husband and wife, as this deed to them was, the husband by virtue of his marital rights becomes entitled to the possession of the property during his life, and that possessory right he may dispose of by deed. But subject to that qualification, as neither the husband nor the wife is severally seized of any interest in the property, each is incapable by means of his or her sole deed to convey any present right or interest in the property to his or her grantee. Both are required to join in the conveyance, otherwise it can have no effect, unless it may be by way of estoppel in case the grantor shall prove to be the survivor of the two. The rule upon this subject is that "they are both seized of the entirety and can neither sell without the consent of the other, and the survivor takes the whole. This species of tenancy arises from the unity of husband and wife and it applies to an estate in fee or for life." (2 Kent Com. [7th ed.], 110.) In Jackson v. Stevens (16 Johns., 110) the rule was stated, "to be well settled that if an estate be given to a man and his wife, they take neither as joint tenants, nor as tenants in common; for, being considered as one person in law, they cannot take by moieties, but both are seized of the entirety; the consequence of which is that neither of them can dispose of any part without the assent of the other, but the whole goes to the survivor." (Id., 115.) And it has since been sustained by the following additional authorities: Doe v. Howland (8 Cow., 277, 283); Barber v. İlarris (15 Wend., 616, 618); Jackson v. McConnell (19 id., 175); Farmers & Mechanics' Bank v. Gregory (49 Barb., 155, 162; 1 Washburn on Real Estate [4th ed.], 332, § 9, pp. 672, 673). And as this deed from Babeta Bram to William Zorntlein conveyed no interest whatever in the property to him, it followed that the conveyance in which both the husband and the wife joined to the mortgagor conveyed the title to the property to him, under which he became scized of it and entitled to its full and complete enjoyment, subject only to the possible contingency that the wife shall survive her husband. This possibility would, of course, diminish the value of the property, but to what extent that might be the result was not proved, nor attempted to be HUN-VOL. XXXIV 62 |