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A mortgage given by a corporation without the assent of its stockholders is made valid by a subsequent assent where no intervening rights exist.

It is not indispensable to the validity of the mortgage that the assent should be filed in the county where the mortgaged property is situated. A subsequent mortgagee or pur

chaser with notice cannot set up the failure to file the assent as a defense to the prior

mortgage.

A mortgage given to secure a loan with which

loaned for the payment of its debts. Prior to the execution of that mortgage the requisite consent in writing of the owners of two-thirds of the stock was obtained. At the time of his loan to plaintiff, B. knew of the existence of plaintiffs' mortgage. The B. mortgage was subsequently foreclosed, and the

to pay debts, is one executed to secure the property bid in by the defendants,

payment of debts of the corporation within the meaning of Ch. 517, Laws of 1864, although not executed to the creditors of the corporation.

This action was brought to foreclose a mortgage executed by the O. I. Co., a corporation organized under the general manufacturing act upon its real estate, to secure a bond executed by it and others of the defendants. The mortgage was dated January 2, 1874, and recorded in the county where the real estate was situated, January 21, 1874, and was given to secure a loan made by plaintiff to said O. I. Co. to pay certain debts, and the money was used for that purpose

J. and W.A., who were stockhold-
ers of the O. I. Co. and knew of
plaintiff's mortgage. They made
no inquiry of the officers of the O.
I Co. or of plaintiff concerning the
mortgage in suit.

Louis Hasbrouck, for applts.
Edward Harris, for respt.

Held, That plaintiff's mortgage was made valid by the assent of the owners of two-thirds of the stock of the corporation executed in November, 1874, there being no intervening rights. 2 Sandf., 137. Such an assent is an indespensable condition to the creation of a valid mortgage under the act of 1864 (Chap.517, Laws of 1864, as amended by Chap. 481, Laws of 1871). The object of the Legislature, in requiring such assent, was the pro tection of stockholders against improvident, collusive or unwise acts of the trustees, the governing body of the corporation, in incumbering the corporate property. 69 N. Y., 333.

No consent in writing signed by owners of two-thirds of the stock, as required by the statute, was obtained before the execution of the mortgage. Such a consent dated January 3, 1874, was procured and signed in November, 1874, at which time the mortgage in suit was re-acknowledged and again recorded. This consent was filed by plaintiffs' attorney in Monroe county instead of the county where the mortgaged property was situated, and no consent has been filed in said county. In 1877 the O. I. Co. executed another mortgagee or purchaser, with notice, gage to one B., to secure money could not set up a failure to file the

Also held, That the filing of the assent in the county where the mortgaged property is situated is formal and subsidiary, and is not indispensable to the validity of the mortgage. A subsequent mort

assent as a defense to the prior mortgage, if the filing of the assent was essential it may be done as of the time the assent was given. 1 Bro. C. C., 269; 1 Ldg. Ca. in Eq., 440, and notes.

The Act of 1875 (Chap. 88), authorizing the filing of an assent, when by accident or mistake such filing has been omitted, does not evince a legislative construction of the Act of 1864 adverse to the above holdings.

Also held, That although plaintiff's mortgage was not executed to the creditors of the corporation directly, it was executed to secure the payment of debts of the corporation within the meaning of the Act of 1864. 65 N. Y., 44.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Andrews, J.

concur.

PRACTICE. PLEADING. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

four alleged several and distinct
causes of action against as many
separate defendants be stricken.
from the complaint, and from the
order granting this motion the
plaintiff appealed.

Herbert Valentine, for applt.
W. W. Niles, for respt.

Held, That the motion must have been made upon the ground of misjoinder of actions, and assuming that there was such a misjoinder, this was not an appropriate remedy. That the code provides the remedy by demurrer to be taken in such case by the several defendants for misjoinder of several causes. That it does not permit the defendants to join in a motion to strike out the several causes because improperly united.

That such a motion would not afAll ford appropriate relief unless it resulted in striking out the entire complaint; and that it would be absurd to allow each of the defendants to move that the cause of action against him be stricken out; or all to join, as in this case, in an alternative motion that some one or other of the alleged several causes of action be stricken out, leaving the other causes in full vigor against the several other misjoined defendants. That such a practice is neither to be encouraged nor allowed.

Wm. W. Averill, applt., v. Amzi L. Barber et al., respts.

Decided Oct. 8, 1884.

A motion to strike out of a complaint certain causes of action, on account of their

misjoinder with others, is not the proper method of taking advantage of that defect. The objection should be taken by demurrer.

Appeal from an order striking certain causes of action from the complaint.

A joint motion was made by the defendants in this case, asking that

Order reversed and motion denied but without prejudice to any other remedy.

Opinon by Davis, P.J.; Daniels, J., concurred.

SLANDER.

in which he was a partner, and that the Court erred in not so

N. Y. SUPREME COURT. GENERAL charging the jury, and it was also

TERM. FIRST DEPT.

William McGibbon, respt., v. William Euclid Young, applt.

Decided Oct. 8, 1884.

The defendant, who was a partner in business of plaintiff, said of the latter to a third per

son: "He is a thief. When I came down town

this morning my book-keeper reported to

me that he had gutted the drawer." In an action for slander, held that the words first uttered imputed a crime, and that whether the qualification added so reduced the charge as not to include the crime of theft, was properly submitted to the jury.

It is slanderous per se to falsely assert that a person has scuttled a ship to get the insur

ance.

In an action for slander consisting in the two charges above referred to, a verdict for $3,000 damages is not excessive.

Appeal from a judgment recovered on the verdict of a jury and from an order denying a motion for a new trial.

This was an action for slander. It appeared that the defendant who was the partner in business of plaintiff at the time, said of the plaintiff in the presence of a number of hearers, "He is a thief. When I came down town this morning my book-keeper reported to me that he had gutted the drawer." "He has scuttled a ship to get the insurance." Upon the trial the jury gave a verdict. for $3,000. It was claimed upon appeal that the words, "He is a thief," &c., were not slanderous, since all that was charged, as shown by the latter part of the speech, was that plaintiff had taken property of a partnership

claimed that the damages were excessive.

John R. Dos Passos, for applt. John Sidney Davenport, for respt.

Held, That the charge of having scuttled a ship to get the insurance was slanderous per se, as it imputed the commission of a crime under Chap. 299 of the Laws of 1870, or under § 5365 of the R. S. of the U. S.

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That the words, "He is a thief," charged the plaintiff with the crime of theft, and whether the qualification so reduced the charge as not to include that crime, was properly submitted to the jury. 72 N. Y., 418.

That the amount of damages awarded by the jury cannot be held to be so excessive as to indicate any bias or prejudice against the defendant, for it was no more than for grave charges of this description, might be considered by the jury as an appropriate recompense in the case,

Judgment and order affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurred.

DIVORCE. ALIMONY.

N. Y. COURT OF APPEALS. Washburn, respt., v. Catlin,

applt.

Decided Oct. 21, 1884.

Under § 59, tit. 1, ch. 8, part 2 R. S. the court may, after the entry of a decree of

divorce, make an allowance for the support and education of the children of the mar riage.

Modifying S. C., 18 W. Dig., 442.

This was an appeal from an order of General Term, reversing an order of Special Term, which denied an application by plaintiff for a provision for the maintenance and education of her daughter, an infant, the issue of a marriage between herself and defendant, which was dissolved by a decree of the Supreme Court in June, 1874, but without an award of alimony or provision for the support of said issue.

J. Langdon Ward, for applt.
E. Elliott Minor, for respt.

Held, That under § 59, Title 1, Chapter 8, Part 2 of the Revised Statutes the petitioner was entitled to an allowance for the support and education of the issue of her marriage with defendant. Said section was preserved by § 3 of the repealing act, Chap. 245, Laws of 1880, 20 W. Dig.

Order of General Term, reversing order of Special Term denying application, modified by confining the allowance to the time that has elapsed since the filing of the petition, and as modified affirmed.

Per curiam opinion. All concur, except Rapallo, J., absent.

CONVERSION.

N. Y. COURT OF APPEALS.

McKinley et al., appls., v. Bowe, Sheriff, et al., respts.

Decided Oct. 21, 1884.

In an action against a sheriff and his indemnitors for damages for a wrongful levy and sale of a lathe claimed by plaintiffs as mortgagees, it was admitted that the sheriff had an alleged execution in favor of the indemnitors against one C., but the indemnitors did not prove that they were not creditors of C. or that they had a judg ment against him. Held, That they were not in a position to attack plaintiffs' title for fraud.

Plaintiffs proved that they gave notice of

their claim and forbid the sale; that one of the indemnitors nodded to the auctioneer, who announced that the purchaser would get a good title, and knocked down the lathe to the indemnitors. Held, sufficient to charge all the defendants with a taking.

This was an action to recover damages for the wrongful sale of plaintiffs' property under an alleged execution. The action was brought against B., as sheriff, F. C. and E., his indemnitors. It appeared that (C. and E. recovered a judgment against one W. H. C.) an execution was issued against one W. H.C., and the sheriff levied on a lathe which plaintiffs claimed belonged to them, as mortgagees. Defendants claimed that plaintiffs' claim of title was fraudulent, because there was no actual change of possession. A notice in writing was served on the sheriff the day before the sale, asserting plaintiffs' title to the lathe, and demanding its possession. The next day the sale took place in the presence of plaintiffs' attorney, who found on the premises, besides the auctioneer, a person who represented himself to be the attorney for C.and E., a deputy sheriff, and E. A discussion took place between the plaintiffs' attorney and the attorney for defendants, in which the sale was disputed and forbidden. A sim

ilar discussion was had with E. When the auctioneer offered the lathe for sale the plaintiffs' attorney again interposed, forbidding the sale. One of the defendants noded to the auctioneer, and he announced that if the lathe was sold the purchaser would get a good and absolute title. It was knocked down to the defendants, and the auctioneer announced that it was sold to C. and E. It was admitted that the deputy sheriff had an "alleged execution" in his hands against W. H. C. in favor of C. and E., by whom the sheriff had been indemnified. Defendants C.

and E. did not show that they were creditors of W. H. C. or proved a judgment against him. The complaint was dismissed.

Artemas D. Smith, for applts. Edward D. Crittenden and F. E. Dana, for respts.

Held, Error; that defendants were not in a position to attack plaintiffs' title for fraud as they had not put themselves in the position of creditors by competent proof; that plaintiffs' evidence was enough to charge all the defendants with a taking.

Judgment of General Term, affirming judgment dismissing complaint, reversed and new trial granted.

Per curiam opinion. All concur, except Rapallo, J., absent.

JUDICIAL SALE. PURCHASER N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The Peo., &c., v. Globe Mutual Ins. Co. In re. Dake, applt.

Decided Oct. 8, 1884.

The Court will relieve a purchaser of real es tate upon a judicial sale from his bid if there is some practical and serious question affecting the title upon which persons not parties to the suit, and who cannot be estopped by the judgment, have a right to be heard in some future litigation which may arise.

In the chain of title to certain real estate sold upon foreclosure of a mortgage, there appeared a conveyance by one Martin, as special guardian of certain infants, to one Mather for $8,000, and a simultaneous reconveyance by the latter to the former for $100. Held, That such conveyances were, upon their face, presumptively fraudulent and invalid, and, unexplained, entitled the purchaser to be relieved from his bid.

Term, granting the petition of JonAppeal from order of Special athan M. Dake to be relieved from his bid and purchase of real estate upon a sale under a foreclosure of a mortgage.

The petitioner rested his claim. for relief upon the ground, among ble title could not be conveyed to others, that a good and indefeasihim, for the reason that the mortMartin, who had acquired title gagor had derived title from one

from one Mather for the nominal consideration of $100, to whom by deed executed simultaneously, as appeared upon the face of the papers, Martin had conveyed the premises for $8,000, as special guardian for that purpose of certain infants. These infants were not parties to the foreclosure suit, and were consequently not bound by the judgment.

Wingate & Cullen, for applt.
James Wood, for respt.

Held, That it is now well settled.

that upon a judicial sale the Court

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