This action was brought to compel the specific performance by the defendant of a contract to purchase certain real estate which he refused to perform, upon the ground that plaintiffs could not convey a good title. It appeared that the premises in question were conveyed to Abraham Beekman, in 1788, by sheriff's deed duly recorded; that Abraham Beekman devised said premises to Abraham K. Beekman, who died in 1816, leaving a will by which he devised said premises to his executors in trust, with power to sell the same and distribute the proceeds among certain legatees; that in 1821 one Thompson was in possession of said premises, but that no conveyance to him was upon record that in 1836 the heirs and devisees of Abraham K. Beekman instituted an action to partition all the real estate left by him but not distributed under his will, and that no mention or reference to this property was made in such suit; that Thompson continued in possession of the premises, claiming to own the same until 1867, when he died leaving a will containing a power of sale to his executor, under which the latter in 1882 conveyed the premises to plaintiffs from whom defendant contracted to purchase. The Special Term refused to compel defendant to perform his contract and from that judgment plaintiffs appealed. F. R. Minrath, for applt. David S. Walter, for respt. Held, That the continued possession of Thompson was all that could be required to vest a title in the property by means of an adverse holding, and that it raised a presumption that the property was in fact conveyed to Thompson under the power of sale contained in the will of Abraham K. Beekman by his executors. 45 N. Y., 479, 485; 82 id., 265, 268; 19 Hun, 273. That this presumption was greatly strengthened by the omission to include these premises in the judgment entered in the partition suit brought by the heirs of Abraham K. Beekman in 1836, for if they had not been previously conveyed and disposed of they would have formed a necessary part of the subject of that action. That the title acquired by means of his possession, fortified by the presumption arising from the form of the judgment in the partition suit, enabled plaintiffs as the grantees of the executor of Thompson to convey to defendant the fee simple of the premises. That moreover the possession of Thompson and his executor exceeded any possible minority of any heir of Abraham K. Beekman in being at his death together with the statu-. tory period after the majority of any such heir required to complete an adverse possession, and that there was not therefore even a bare possibility that the right of plaintiffs to this property could be in any form questioned, and defendant should have been required to accept it and pay the purchase price. 68 N. Y., 247, 258; 86 id., 575, 584-5; 2 Kernan, 394, 400; 2 Bos., 161, 165. Hartley v. James, 50 N. Y., 38, distinguished. Judgment directed in favor of S. W. Fullerton, for respt. plaintiffs, requiring defendant to receive and accept the property in controvers y Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. DEED. MORTGAGE. N. Y. SUPREME COURT. GENERAL Harriet B. Berdell, respt., v. Decided Oct. 8, 1884. Defendant gave to one P. a deed of certain property owned by him, which though absolute upon its face was understood to be said property to held as security for a debt owing by him to P. P. subsequently gave a deed of the plaintiff, who had knowledge of the character of the conveyance to P. In an action of ejectment, Held, That the deed to P. operated only as a mortgage and that the deed of P. to plaintiff was no more than an assignment of said mortgage, and that the title to the property remained in defendant. Appeal from a judgment recovered on the report of a referee. This was an action of ejectment for the recovery of the possession of certain real estate. It appeared that defendant had given to one P. a deed of the premises in question, which, while absolute in form, was intended by both parties as security for a loan of money. Subsequently P. gave a deed of said property to plaintiff, who gave no consideration therefor and who had knowledge of the fact that the deed given by defendant to P. was intended as security for a debt. Held, That by the settled law of this State the deed from defendant to P. was no more than a mortgage and had no other or greater effect than a mortgage formally executed and delivered for the same purpose. 42 Barb., 390; 31 N. Y., 399. That while a bona-fide purchaser from P. would have acquired title to the property, 1 Paige, 202; id., 551, plaintiff was not such a purchaser, 11 Paige, 459, and the deed to her was in fact no more than an assignment of P.'s mortgage interest in the property and conveyed to plaintiff no more than a defeasible title, 2 Sumner, 109, and upon such a title she could not maintain an action of ejectment for the recovery of the possession of the property against defendant, who was in fact, as well as legally, the mortgagor, and in whom the legal title still remained. 4 Lansing, 314; 31 N. Y., 399; 111 U. S., 242; 54 N. Y., 599. That no estoppel as against defendant arose out of the transaction, for it is only where one party has deceived another by his representations or conduct that he can be precluded from asserting and showing the truth upon the ground of estoppel, 82 N. Y., 315; 69 id., 113, and that plaintiff, had not been able to bring herself within the protection of this rule. Judgment reversed and new trial ordered. Opinion by Daniels, J.; Davis, Herman Aaron and Alfred Tay- P. J., and Brady, J., concur. lor, for applt. Vol. 20.-No. 4a. A contract between a principal and his broker that stocks and shares should be bought by the latter for the former and held by him subject to orders which afterwards might be given for their sale, and, after they had been sold in that manner, that the differences which might result from the changes in the market prices of the property should be settled, is a proper and lawful one, and is not illegal as being a gaming contract. When stocks held by a broker for his principal under such a contract are sold by the former without authority, it is not necessary to prove a demand of the stocks in order to maintain an action for conversion; nor does it interfere with the right of the principal to maintain such an action that the stocks were bought in the name of an agent. Appeal from judgment and from order denying motion for a new trial. One L., as the agent of plaintiff, employed defendants, who were stock brokers, to purchase certain shares of Pacific Mail Stock. Defendants afterward reported that they had purchased such stock. They subsequently failed and never delivered this stock to plaintiff. This action was brought to recover for its conversion upon the ground that it had been sold by defendants without authority. The action was defended upon the ground, among others, that the transaction was unlawful because it was not contemplated that any shares of stock should be, or were actually purchased, but that all the parties intended was to secure the differences which might result from the changes in the subsequent market prices of the property. Alfred McIntire, for applts. Held: That this defence was not established by the evidence. That the evidence showed that the pur and object of plaintiff pose was that the stocks or shares should be bought and held by defendants subject to the orders which afterwards might be given for their sale, and after they had been sold in that manner that the differences should be settled, and that such a transaction would be neither unlawful nor improper. 77 N. Y., 612; 79 Ill., 351; 72 Penn. St., 155; 65 Me., 570; 39 Mich., 337; 70 N. Y., 202; 54 id., 522; 110 U. S., 499. That it did not interfere with the right of plaintiff to maintain the action that the shares were purchased in the name of her agent and not of herself, for she being the party beneficially interested in the purchases had the legal right to avail herself of them. That it was not necessary that there should be proof of a demand of the stocks made of defendants, for it was reasonably clear that they had sold the stocks without authority, and that of itself was a conversion. Judgment and order affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. RECEIPT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Sarah H. Peck, ex'r, respt., v. Andrew J. Peck, applt. Decided Oct. 8, 1884. A written instrument, not under seal, acknowledging the receipt by one of the parties of $250 in full payment of all claims and demands which he had against the other party by reason of a certain note for that amount (not at present at hand) and also in full payment of any and all claims and demands that he had against the other in any way, they having made a settlement, is not a release, but is in the nature of a receipt, and should not be construed as evidencing the payment of a larger by a smaller sum, nor as applying only to the note specifically mentioned in it. The fair import of its terms is that the parties had made a mutual settlement of their respective claims and the payment of $250 was for the balance found in favor of one of them. Appeal from judgment entered on verdict directed by the court. This was an action on two promissory notes for $775 and $200 re. spectively. The making of the notes was admitted, but the defense rested upon the following instrument signed by plaintiff's testator: "I, Zachary Peck, hereby acknowledge the receipt of $250 in full payment of all claims and demands which I have against Andrew J. Peck, by reason of a certain note for that amount (which note is not at present at hand) and also in full payment of any and all other claims and demands that I have against the said Andrew J. Peck in any way, we having made a settlement this day." After proving the execution of this instrument and the additional facts that plaintiff's testator had lived with defendant for a year before its execution, and subsequently until his death, and also that he told the attorney who drew the instrument that he and his brother had had a settlement, defendant rested. Plaintiff thereupon moved for the direction of a verdict in her favor upon the ground that the instrument in question, not being under seal, did not constitute a valid release, or an accord and satisfaction, and that since it purported on its face to specifically release all claims and demands on a certain note for $250, it must, notwithstanding the general words also used, be limited to the item so particularly specified. This motion was granted. Luke A. Lockwood, for applt. Held, Error. That the instrument in question should not be treated as simply evidencing the payment of a larger by a smaller sum. That it was not technically a release, because it was not under seal, but was in the nature of a receipt, and since it declared upon its face that it was given on a settlement, its fair import was that the parties had made a mutual settlement of their respective claims, and the payment of $250 was for the balance of the claims found in favor of the testator, and that the language in reference to the note is not so controlling as to limit the actual payment to that particular indebtedness, because reasonable force must be given to that part of the instrument which declared that the parties had had a settlement which resulted in the discharge of all claims and demands on payment of a note not then present, and for that reason to be specifically mentioned. Judgment reversed and new trial ordered. Opinion by Davis, P. J.; Daniels and Brady, JJ., concur. WILLS. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. him surviving, I then give and bequeath the said $8.000 which I have hereinbefore directed to be paid unto the said Theo. D. Mead, to his surviving brothers and sisters in equal proportions, on the death of the said Elizabeth J. Mead." The executor paid over the entire sum of $25,000 to Mrs. Mead in 1865. Theo. D. Mead reached the age of 21 years July 20, 1883, and he and his mother are both living. He now claims that it was the duty of the executor, under the will, to In re estate of Theodorus B. retain the $8,000 to be paid to Denton, deceased. Decided Sept., 1884. Testator by his will gave to his daughter the sum of $25,000, and directed that $8,000 thereof be given to her son T. on his arriv ing at the age of 21 years, but in case he should die before that age without issue, the sum "directed to be paid " to him was given to his brothers and sisters on his mother's death. Held, That the executor was required by the terms of the will to pay the whole sum of $25,000 to testator's daughter; that such payment discharged him, and that she received $8,000 thereof as trustee for her son. Appeal from decree of Surrogate on settlement of the accounts of T. J. Denton, exr. The third clause of testator's will was as follows: "I give and bequeath to my daughter, Elizabeth J. Mead, the sum of $25,000, and do order and direct that $8,000 of said sum be paid over to her son, Theo. D. Mead, when he shall arrive at the age of 21 years. * * * but in case my said grandson, Theo. D. Mead, shall die before arriving at the age of 21 without leaving lawful heirs him at his majority, and that the payment to his mother was unjustifiable. The executor claims that he was not only justified in such payment, but that he was required to make it to her by the terms of the will; that such payment discharged him, and that Mrs. Mead received the same as trustee for her son. The Surrogate sustained the executor and gave him a full discharge. Vanamee & Vail, for applt. D. P. & H. Gedney, for exr., respt. Held, No error. By the fourth clause of the will testator recognizes the gift as absolute to the daughter in the first instance, and directs that the several bequests before made to his daughters be subject to reduction for advances made to them respectively. It was the intention of testator that the gift should be absolute to Mrs. Mead; that she should have the money; have the use and benefit of it during the minority of her son, |