and 88 New York State Reporter.

and to different people; and that, if it is not permitted to complete those contracts, or if the work is sold by other persons at a less price, so that plaintiff is substantially deprived of its monopoly, it will incur large losses. But the defendant says that this is a matter of no importance, because it claims that the only assignment which was permitted under this contract was an assignment of a part of the contract to persons who would be associated with Jackson in the sale of the book, and that it had no notice of the interest of the plaintiff in the contract, and that it had an assignment of it. It is quite true that the privilege to assign was limited to persons whom Jackson might desire to associate with him in the sale of the book. The effect of that limitation, or whether this plaintiff is not substantially within it because of the fact that Jackson is its largest stockholder, it is not necessary to consider. It may be assumed for the purposes of this discussion that the assignment was not within the strict privilege given by the contract between Jackson and the Methodist Book Concern, and that, if objection had been made to it at once by that defendant, the plaintiff here could have obtained no rights under the assignment. But when knowledge of this assignment came to this defendant corporation, and it knew that the plaintiff had acquired substantially the entire interest in this contract, it was bound, if it had any objection, to make that objection known at once. If it accepted the plaintiff as the owner of the contract, and permitted it to go on with the performance of it, knowing, as it must have known, that the performance would require considerable expense, and the incurring of large liabilities, it was precluded thereafter from any objection to the plaintiff as assignee of the entire contract. It appears from the first affidavit of Mr. Davidson, the treasurer and general manager of the plaintiff, that, soon after the assignment to the plaintiff, a large number of books were ordered by the plaintiff from the Methodist Book Concern; and a subsequent affidavit made by him, to which are annexed receipts and letters passing between the plaintiff and the Methodist Book Concern, show that as early as December 9, 1897, the Methodist Book Concern received from the plaintiff the money due for the halfyearly royalties under the contract with Jackson. It appears further that the books ordered pursuant to the contract were paid for by notes of the plaintiff indorsed by Jackson, and there can be no doubt from the evidence submitted by the plaintiff that at least from the 9th of December, 1897, the Methodist Book Concern was fully cognizant of the fact that the plaintiff was the assignee of this contract, and had entire control of it. Indeed, the plaintiff alleges that the defendant Knight, as manager of the Methodist Book Concern, of their subscription book department, had personal knowledge of all the rights of plaintiff before the year 1898. This is not denied by the defendant corporation, nor is that allegation of the complaint referred to in any way in the answer; so that, so far as the defendant corporation is concerned, it stands admitted that its manager, who signed the contract with Jackson on its behalf, had knowledge of all the rights of the plaintiff under the contract before the year 1898, and before any effort was made to transfer the contract to

him. Neither does the defendant Knight, in his answer, deny the allegation as to his knowledge of the rights of the plaintiff. It is quite true that he says in his affidavit that he never had any notice of any pretended right of the plaintiff under the contract with Jackson until the service of the complaint, but this statement is not consistent with the admission in his answer. Mr. Mains, who was one of the firm of Eaton & Mains, the general agents of the Methodist Book Concern, testifies that, as he is informed and believes, that concern had no notice of any assignment to the plaintiff of his contract; but, as he does not state the source of his information, or the grounds of his belief, his affidavit is of very slight importance, in view of the admission in the pleadings that the manager of the subscription book department, who made this contract, had been informed of the rights of the plaintiff before the year 1898. The case must therefore be decided upon the theory that this assignment and the rights of the plaintiff under it were made known to the Methodist Book Concern, and were also known to Knight, long before the contract between Knight and that defendant was made. It is claimed, too, that there is no intention on the part of Knight to violate the contract. This claim is thoroughly disposed of by the letters of Knight, which are in the record, which show that he is printing a large number of copies of these books for other persons than those to whom, by the contract with Jackson, the books were to be sold. Upon consideration of the whole case it seems to us that, so far as the injunction restrained Knight from selling or delivering, or permitting to be sold or delivered, any copies of the work to any other person or persons than the plaintiff, or pursuant to subscriptions obtained by the defendant the Methodist Book Concern through canvassers or general agents, and at the same price as those at which the work had, on June 19, 1896, been sold by the Methodist Book Concern, it should be restored; but the remainder of the injunction, which restrains the defendants from manufacturing or causing to be manufactured, or from receiving, selling, or otherwise disposing of any copies of said work in any manner whatsoever, is too broad, and it is not consistent with the other portion of the injunction. There is no reason, under the contract with Jackson, why the Methodist Book Concern should not print as many of these books as it sees fit, and the books thus printed it is at liberty to sell in the manner provided by its contract with Jackson, and the only injunction to which the plaintiff is entitled is to restrain a delivery of the copies of the book to persons who are not entitled to receive it under the contract with Jackson, and to whom, pursuant to that contract, it should not be sold.

The order, therefore, refusing to continue the injunction must be reversed, without costs to either party, and the motion for injunetion granted to the extent above stated, with $10 costs to abide event. All concur.

(24 Misc. Rep. 589.)

and 88 New York State Reporter.

WOOD v. TRAVIS et al.

(Supreme Court, Special Term, Orange County. September, 1898.)

1. TRUSTEES-APPOINTMENT-VALIDITY.

That new trustees, in the place of a testamentary trustee who had renounced his appointment, were appointed without notice to some of the beneficiaries, was an irregularity which would not invalidate the appointment.

2. MORTGAGE-VALIDITY.

A will appointed an attorney, who drew it, executor; empowering him to hold the property in trust, and to borrow money by mortgaging the real estate, if necessary, to pay the debts, and a legacy left him in lieu of compensation for his services. He renounced the appointment, and acted as attorney in probating the will and procuring the appointment of his successors. The testatrix left no debts, and her funeral expenses were paid by her son and grandchildren, beneficiaries under the trust. The trustees then mortgaged the property to the executor to secure a bond for $500. Held, that the mortgage could not be upheld on the theory that it was executed under a power to secure a creditor of deceased. 3. SAME

CONSIDERATION-PRESUMPTION.

The facts and circumstances also rebut any presumption of a consideration which arose from the fact that the bond and mortgage were sealed instruments.

4. SAME-PURCHASER'S RIGHT.

The purchaser of a mortgage, without notice and for value, takes the same subject to the defense of want of consideration.

Action by William Wood against Eunice Travis and others. Complaint dismissed.

William Henry Haldane, for plaintiff.

Silas J. Owens, for defendants Eunice Travis et al.

Marvin R. Smith, for defendant Seth Secor.

John F. Schlosser, guardian ad litem for Travis infants.

HIRSCHBERG, J. Adah Travis died a resident of Coldspring, in Putnam county, on or about March 7, 1876, leaving a last will and testament, and codicil thereto, which were admitted to probate by the surrogate of that county June 19, 1876. Calvin Frost, a prominent lawyer, residing at Peekskill, was named as sole executor, and in the will the sum of $1,000 was given to him, "in lieu of all fees and commissions as such executor." He refused to serve, however, and duly filed his renunciation in the office of said surrogate. The deceased appears to have left but one child,-a son, Theodore; and at the time of her death Theodore had three children, viz. Lillian Travis, and the defendants Emma Hart and Harrison Travis. The son, Theodore, died about a year after his mother, and his daughter Lillian survived him but a few weeks. At the time of Adah Travis' death, Emma Hart had two infant children living, viz. the defendants Theodore Hart and Walter Hart. Harrison Travis has four children living, viz. the defendants Mabel, Alice, Arthur, and Lillian Travis, all minors. By the terms of Adah Travis' will and codicil, her real and personal estate were given to the executor in trust, in substance, to pay the income to her son, Theodore, for life, and at his death to divide the estate into three parts, paying the income of one part to each of the three grandchildren during life, and, at the death of each,

the principal to his or her issue, and, if no issue, to the surviving grandchild or children, or their issue. The will gave to the executor ample power of sale of the real estate, and further contained this provision:

"In case my personal property shall not be sufficient to pay all my debts and funeral expenses, and the sum of money hereafter given to my executor, and he shall not think it expedient to sell my real estate immediately after my decease, he is hereby authorized to borrow, on interest, by mortgage on such real estate to be made by him, such sum as may be necessary to supply any deficiency of my personal property for such purposes."

At the time of Adah Travis' death, she was the owner of certain real estate in Coldspring, on which she resided, and household and other furniture worth about $500.

The

In the autumn of 1876 an action was commenced in the supreme court by the son, Theodore Travis, for the purpose of procuring the appointment of trustees under the will in place of Mr. Frost. three children of the plaintiff were the only defendants in that action, and Mr. Frost was the plaintiff's attorney. In that action, on December 15, 1876, Hamlet Hart and Henry Chapman were appointed trustees under the will of Adah Travis, and empowered to execute the several trusts therein contained, upon filing an approved bond in the penalty of $6,000, which they did on the same day. I cannot find from the evidence that the trustees after thus qualifying did anything else in their representative capacity, except to execute the mortgage hereinafter mentioned. No inventory was taken, nor were any proceedings ever instituted for a settlement of the estate. The trustees never took actual possession of either the real or personal estate. The uncontradicted evidence is to the effect that the deceased left no debts. The son continued to occupy and use the property until his death, and his widow (the defendant Eunice Travis) and their children. continued to so occupy and use it thereafter, and among them they paid the funeral expenses and doctor's bills. On June 27, 1877, the trustees executed and delivered to Mr. Frost a bond and mortgage upon the real estate for $500, payable with interest on the 1st day of May, 1878. On January 5, 1878, the mortgagee assigned the bond and mortgage to Elizabeth and Mary Frost, and the mortgage and assignment were recorded on the 27th day of March, 1878. On July 26, 1881, the bond and mortgage were again assigned by Elizabeth Frost and Calvin Frost, executor, to Calvin Frost, the original mortgagee, which assignment was recorded March 2, 1882. Calvin Frost remained the owner of the bond and mortgage until his death, and thereafter, and on April 24, 1897, they were assigned by the executors of said Calvin Frost to the plaintiff, an attorney and counselor of this. court, for the sum of $500 paid them by him, and that assignment was recorded May 7, 1897. This action was commenced in June, 1897, for the foreclosure of the mortgage, and at the time of the trial the amount unpaid, being the entire principal and interest for about 20 years, was the sum of $1,198.50. All the parties to the bond and mortgage are dead, and no successor or successors have ever been appointed in the place of the trustees.

The defendants insist that the plaintiff is prohibited by section 73

and 88 New York State Reporter.

of the Code of Civil Procedure from maintaining this action, on the ground that he bought the bond and mortgage for the purpose of bringing the suit. He explains the reasons why he made the purchase, which reasons it is unnecessary to repeat; and I accept them, and hold that he is not within the prohibition of the statute.

They further contend that the trustees had no legal capacity to make the bond and mortgage, because of the fact that the two grandchildren of the deceased, Theodore and Walter Hart, were not made parties to the suit in which such trustees were appointed. The appointment of new trustees without notice would be valid, even if irregular. Milbank v. Crane, 25 How. Prac. 193. Other alleged irregularities in the action are disregarded for the same reason. But I am unable to find in the facts any authority in the trustees, admitting the validity of their appointment, to execute the mortgage in question, nor am I able to find any consideration therefor. It is claimed by the plaintiff that Calvin Frost was a creditor of the deceased, but there is no proof in support of such claim, and, as has been said, so far as there is any proof on the subject it is to the effect that Mrs. Travis left no unpaid claims. Mr. Frost did, indeed, draw the will, and acted as attorney in the matter of its probate, and in the action to procure the appointment of his successors. But no inference of an existing debt would flow from such facts, nor would his services in the surrogate's court and in the supreme court create any debt, as against the testatrix. Besides, the power conferred by the will does not include a right in the trustees to create a specific lien upon the real estate in the name and for the direct benefit of any creditor of the deceased, but only the right to "borrow" such sum as may be necessary to meet a deficiency in the personal estate for the payment of debts and the legacy bequeathed to the executor in lieu of commissions. The executor, by refusing to act as such, forfeited all right to the legacy, or to any share in or part of it. A mortgage to the creditors directly would be an entirely unnecessary provi sion in the will, as Mr. Frost well knew, inasmuch as the creditors had a lien upon the real estate, by statute, for a period long subsequent to the date of the maturity of the mortgage, and also a right, under section 1843 of the Code, and subsequent sections, to enforce their claims against the heirs after the lien should terminate. The trustees had no greater authority than the executor, and I am sure he could not have executed a mortgage to himself, and enforced it against the beneficiaries, upon the proofs in this case. It is impossible, therefore, to uphold the mortgage on the theory that it was executed under a power to secure a creditor of the deceased. The plaintiff has not claimed, upon the submission of the case, that the mortgage was given to secure a loan; but I am compelled to examine that question, since the authority of the trustees was limited to borrowing money, and the seals upon the bond and mortgage import consideration. The seal, however, upon a written instrument, is only presumptive evidence of a sufficient consideration, which may be rebutted. Code Civ. Proc. § 840. I am of opinion that the facts and circumstances of the case do rebut any presumption of a consideration which arises from the mere fact that the securities consist of sealed