That to entitle the Sheriff to payment under such contract the oath taken by the defendant was required by law. Laws of 1875, supra. That, although the law required the oath to be made.

by the Sheriff or jailor taking the

Opinion by Daniels, J.; Davis, P. J., concurs.

Brady, J., dissents, upon the ground the oath taken was extrajudicial and not the subject of indictment.

INFANTS. CUSTODY. EVIDENCE.

oath of the jailor when the contract might have been awarded to the Sheriff; and that where the Sheriff did not have the jail under his management or supervision the person to make the oath would be the jailor having the requisite knowledge.

having

That the defendant taken the oath could not protect himself against criminal accountability by alleging his incompetency to give the deposition or certificate of which the falsehood was alleged. It was sufficient to render his act criminal that he had taken the oath for the purposes provided by law. Penal Code, § 98; 2 Bishop on Crim. Law, 5th ed., § 1019; 11 Wend., 127.

That the oath taken by the defendant was a deposition, declaration, affidavit or certificate within the meaning of § 96 of the Penal Code, and if the defendant knew when he made the oath that it was false, as was charged in the indictment, as it was material for the support of the account, the crime alleged in the indictment was committed by him.

TERM. SECOND DEPT.

The People ex rel. Mary R. Brush et al., applts., v. John R. Brown, respt.

Decided Feb., 1885.

In proceedings to have the Court deter

mine to whom the custody of a minor child shall be awarded the rights and interests of the child are paramount, and it is error to exclude evidence of the home and surroundings of the respective parties seeking the custody of such child.

As to whether a father may recede from an agreement with one who has reared the child under it, quære.

Appeal from an order awarding the custody of Francis C. Brown, an infant, to John R. Brown, his father. The question in dispute is whether the father or Mary R. and Sarah E. Brush, relatives of and who have reared the child from infancy (the mother being dead) under an agreement with the father, should have the custody of the child, who is ten years of age. The said agreement is as follows, viz. :

"I, John R. Brown, of Brooklyn, Kings County, State of New York, recognizing and acknowledging

Sarah Elizabeth, her sister, of Huntington, L. I., were friends to me when I most needed the service of friendship, and at a time when friends seemed few, and that they at that time did me a great service by assuming the care and charge of my infant son son Francis C. Brown, and realizing that they necessarily will and have become attached to the said child, I hereby, on my honor, solemnly agree and promise the said Mary R. and Sarah E. Brush that I will not at any time take or remove from their charge and care the said child without their consent, and in the event of my death I hereby declare that it is my desire that the said child shall remain with and be under their guardianship so long as they may desire to keep him, and forbid all persons or person from attempting to remove him from their charge.

Witness my hand, this 12th day of October, 1874.

The special term refused to allow the introduction of testimony to prove that the present wife of defendant was an intemperate person and that she was a medium and spiritualist, and also proof was refused tending to show what this home was in respect to assemblages and practices in what is known as spiritualism.

Evarts, Southmayd & Choate, for respt.

Goodrich, Deady & Platt, for applts.

Held, That it is not clear from the authorities that a father may recede from an engagement in re

spect to his child made with one who has reared the child under it. It is not necessary to decide this question upon the present record. It may be stated as a general rule in this State that the rights and interests of the child are paramount upon the question of the custody of the child. 14 N. Y., 576. This question includes the home of the ladies from which the boy goes. That is clearly seen from the case. It also includes the home of the father, and it was error to exclude the testimony offered tending to show the character of respondent's home.

Order reversed, and case remitted to the Special Term, so that this evidence may be received.

Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur.

MECHANICS' LIEN. MORTGAGEE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

V.

Aaron Broman, respt., Stephen E. Young et al., impld., applls.

Decided Jan., 1885.

Lessees of premises mortgaged their interest to appellants. The labor upon which the lien is claimed was performed at the mortgagors' request while they were in possession of the premises, before any default under the mortgage, and without appellants' knowledge. Appellants purchased the mortgagors' interest in the premises before notice of lien was filed, and had no knowledge of the claim until after such notice was filed. Held, that appellants' interest is not subject to the lien.

Appeal from order of Special Term, appointing receiver pen

dente lite of defendants' leasehold interest in certain lands.

Defendants W. were lessees of lands upon which were certain oil wells, with their machinery. On Feb. 4, 1884, and afterwards, they made to appellants mortgages with words of sale and transfer and power of sale on the property to secure their accommodation indorsements. On June 24, appelOn June 24, appellants bought the entire interest of defendants W. After Feb. 4, plaintiff, by request of and for defendants W., performed work upon the premises, and on July 25, filed notice of lien on the property therefor, under Laws 1880, Ch. 440, and in August served notice on appellants, with bill of particulars annexed, for foreforeclosure of the lien pursuant to that statute. On plaintiff's motion the order appealed from was made. The labor was performed before any default on the part of the mortgagors, and while they had possession of the premises, and without any request by appellants, who state by answer and affidavit that it was performed without their knowledge, and that they had no knowledge of the claim until after the notice of lien was filed.

J. R. Jewell, for applts. Geo. H. Phelps, for respt. Held, That before default in the terms of the mortgages, or until the mortgagees in good faith deemed themselves unsafe, the mortgagors were entitled to possession, control and management of the property. 35 N. Y., 274; 48 id., 556; 42 id., 322. The

mortgagees had no right to object to the use and operation of the property by the mortgagors. No consent by the mortgagees can be inferred from any act of employment by the mortgagors. Nor can such consent be inferred from the fact that the mortgagees saw plaintiff working on the premises with other laborers. Had there been default by the mortgagors, the position would have been different. 62 N. Y., 215; 65 id., 128. The consent of persons having only a special property as security, without right to possession or control or management of the property, must be an express one. 8 Hun., 144.

Otis v. Dodd, 90 N. Y.. 336, and Nellis v. Bellinger, 6 Hun, 560, distinguished.

Moreover, the only interest in this case subject to lien, and to which the term "owner chargeable by consent," can be applied, was the estate for years. And the mortgagees of that interest were not owners of it. 5 Wend., 603; S. C., 2 Paige, 68; 54 N. Y., 5, 99. Their interest was a chattel interest, its nature being that of a chose in action. 58 N. Y., 323; 71 id., 341; 52 Barb., 389; 4 Kent Com., 85.

When appellants purchased no notice of lien had been filed; and when it when it was filed defendants W. had no interest in the property.

Order reversed.

Opinion by Brady, J.; Haight, J., concurs; Barker, J., not voting.

ESTATES BY ENTIRETY. MORTGAGE FORECLOSURE.

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

Henry Bram, respt., v. Geo. A. Bram and Clara Bram, applts.

Decided Jan. 9, 1885.

Where a deed is executed and delivered to a husband and wife both are seized of the

entirety, and neither is severally seized of any interest in the property, and 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.

Only such persons are required to be parties to a foreclosure suit as have acquired rights or interests, or claim to have done so subsequent to the mortgage. Any interest acquired prior thereto cannot be considered or determined in such an action. In an action tried before the court it is not

necessary for the court to find as facts and state in its decision matters admitted by the pleadings.

Appeal from a judgment recovered on a trial at Special Term.

This action was brought to foreclose a mortgage given for the purchase price of the property described in it. This property had been conveyed to and was owned by Jacob and Babeta Bram, who were husband and wife, and they executed and delivered a full covenant warranty deed of said prop. erty to the defendant Geo. A. Bram, who at the same time executed and delivered to them the mortgage in suit, which they there upon assigned to the plaintiff. It was proved on behalf of the defendant that previous to the execution and delivery of the deed to him Babeta Bram, one of the grantors therein, had executed and

delivered a deed for one-half of the property afterward conveyed to the defendant to one Z.; and for that reason it was claimed that the consideration for the mortgage had in part failed.

A. J. Dittenhoefer and David Gerber, for applts.

H. M. Geschiedt, for respt.

Held, That as the deed to C. was executed by the wife alone, whose interest in the property was created by a joint deed to herself and her husband, it was inoperative in the way of conveying any present interest whatever to the grantee named in it.

That where a deed is executed and delivered to a husband and wife both are seized of the entirety, and neither is severally seized of any interest in the property, and each is incapable by means of his or her sole deed to convey any interest in the prop. erty to his or her grantee. 16 Johns, 110; 2 Kent's Com., 7th ed., 110; 8 Cow., 277, 283; 15 Wend., 616, 618; 19 id., 175; 49 Barb., 155, 162; 1 Wash. on Real Prop., 4th ed., 332, §§ 672-3; 92 N. Y., 152.

That there was, therefore, no failure of consideration for the mortgage.

It was further objected that the failure to make Z. a party to this action was fatal to it.

Held, That only such persons are required to be made parties to a foreclosure suit as have acquired rights or interests, or claim to have done so, subsequent to the execution and delivery of the mortgage, and since, if Z. had any interest