George W. Belden, Administrator, etc., Respondent, v. Elliott Meeker, Appellant

George W. Belden, Administrator, etc., Respondent, v. Elliott Meeker, Appellant. Where a complaint alleges the death of-an intestate, and the due and legal appointment of plaintiff as administrator of the estate, and the answer contains only a general denial, the letters of administration, in due form produced in evidence, are sufficient prima facie to establish plaintiff’s - representative capacity. The provisions of section 8,1 B. S., p. 591, prohibiting the transfer of the assets of a moneyed corporation exceeding $1,000, without a previous resolution of its board of directors, is not applicable to a banking association organized under the provisions of the general banking laws of 1888 (chapter 260, Laws of 1888), and the various acts additional and amendatory thereof. The law presumes as against a debtor, in the absence of proof to the contrary, that an assignment of the demand against him was made with due authority and upon a good consideration; also, that it is fair rather than fraudulent. The fact therefore, that an assignment by a president of abank was in consideration of a private indebtedness on his part to the assignee, is not sufficient to raise a presumption in favor of the debtor, that the asignment was without authority and in violation of duty, and does not affect the validity of the assignment. The record of an assignment of a mortgage is constructive notice as against a grantee of the mortgagor, that the mortgagee can no longer deal with the mortgaged interests; and a subsequent discharge or release of the lien of the mortgage executed by him is invalid. (Argued January 18th, 1872 ; decided January 23d, 1872.) Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon the decision of the court at Special Term. The action was brought to foreclose a bond and mortgage executed by defendants, James M. Osborne and Peter Wells to Samuel Hallett, president of the bank of Hornellsville. The complaint sets out the bond and mortgage, alleges an assignment thereof to Charles Belden, the death of said Bebden and the appointment of plaintiff as his administrator. Defendant, Meeker, was a grantee of the mortgaged premises. His answer contained a general denial, and set up a release by the mortgagee, and a purchase by Meeker in reliance upon such release. On the 14th day of July, 1856, Osborne and Wells made their promissory note for $4,000, payable to the order of Peter Wells, three months after date.. This was indorsed by Wells and discounted by the bank of Hornellsville. To secure the payment of said note the makers at the same time executed and delivered to the president thereof the bond and mortgage described in complaint, covering a hotel property owned by them as partners; and said Osborne also gave to the bank his bond and mortgage on a house and lot owned by him. On the 15th October, 1856, said first mentioned bond and mortgage were assigned by Samuel Hallett, the president of the bank, to Charles Belden, which assignment was, on the 6th October, 1867, duly recorded in the office of the clerk of Steuben county, where the mortgaged premises were situated. A short time after the assignment the note was also transferred to Belden. On the 24th of September, 1857, Osborne conveyed to Wells his interest in the hotel property, and Wells gave back to Osborne a mortgage thereon to secure part of the purchase-money, which mortgage came into one Hyatt’s hands, and was by him foreclosed, and the property bid in at the sale by the defendant, who took the usual sheriff’s deed, April 25th, 1859. Before this sale, but after the recording of the assignment, Hallett as the president of the bank, had given to Osborne and Wells a written agreement, to the effect that the house and lot should be first resorted to for the unpaid part of the' said loan, and the Osborne house freed from the lien of the mortgage thereon, of which paper Meeker was informed at the time of the sale, and but for which he would not have purchased. Meeker had no actual knowledge of the assignments to Belden. Letters of administration granted by the surrogate of Hew York, to the plaintiff, were put in evidence; there was no proof of the death of the said assignee Charles Belden, or of jurisdiction of said surrogate to grant said letters other than such letters themselves afforded. The justice, at Special Term, decided in favor of plaintiff, granting the usual decree of foreclosure, with costs. JE. _P. Mart for appellant. There is not sufficient evidence of plaintiff’s character as administrator. (Dale v. Roswell, 8 Cow., 349; Bennet v. Burch, 1 Denio, 147; Burchard v. Dias, 3 Denio, 238; Cowen & Hills, notes to Phil. Ev., 1014-1016 ; 26 Barb., 394; Sibley v. Waffle, 16 N. Y. Rep., 184; 1 Phil. Ev., 245 ; Moons v. De Burnole, 1 Russel’s Ch. Cases, 300, 306, 307.) This question is put in issue by the answer. (21 N. Y., 399 ; Code, §§ 144, 147; Sibley v. Waffle, 16 N. Y., 184.) The record of the assignments of the mortgage was no notice to the mortgagors or to Meeker. (Hoyt v. Hoyt, 8 Bos., 511, 523, 524; N. S. I. & T. Co. v. Smith, 2 Barb. Ch., 82; Reed v. Marble, 10 Paige, 409 ; 4 Seld., 271; Huntingdon v. Potter, 32 Barb., 300, 303, 304.) The equities are outside of the recording act. (Ellison v. Pecand, 29 Barb., 333, 334.) J. H. Wand for respondent. Plaintiff’s character as administrator was sufficiently proved. (2 R. S., 80, §§ 56, 58; Fountain v. Potter, 38 N. Y., 185, 186 ; Etheridge v. Ladd, 44 Bar., 69, 74; Phil. on Ev., 4th Am. ed., vol. 2., p. 158; Barber v. Winslow, 12 Wend., 102, 104; Potter v. Merchants' Bank, 28 N. Y., 653 ; Newman v. Jenkins, 10 Pick., 515 ; § 8 of 1 R. S., 591.) Does not apply to banking associations created under the act of 1838. (Leavitt v. Blatchford, 17 N. Y., 521, 523, 525.) Bone but the corporation or a stockholder can raise the question. (Eno v. Crooke, 10 N. Y., 60, 66.) It is presumed Hallett had authority. (Eno v. Crooke, 10 N. Y., 60.) These defences not included in a general denial. (McKyring v. Bull, 16 N. Y., 297, 304, 309.) The record of this assignment was notice to every one, except the mortgagors, of Belden’s rights as assignee. (1 R. S., 756, et seq., §§ 1, 37, 38, 41, and Revised Notes to § 41, 5 R. S., Edmonds’ ed., 345; Van Derkemp v. Shelton, 11 Paige’s Ch. R., 25, 37, 38.) [MAJORITY — Forger, J.] Forger, J. We are of the opinion that when the complaint alleges the death of the intestate, and the due and legal appointment of the plaintiff as the administrator of the estate, and the answer .contains only a general denial of those allegations, the letters of administration in due form, produced in evidence, are sufficient to establish the representative character in which the plaintiff assumes to sue. (2 R. S., 80, §§ 56, 58 ; 2 Steph. N. P., 1904; Starkie on Ev., 9th Am. ed., *394, 361; 3 Phil, on Ev., *665, 548, 5th Am. ed.; Newman v. Jenkins, 10 Pick., 515; Jeffers v. Radcliffe, 10 N. H., 242; and see Dale Adm. v. Roosevelt, 8 Cow., 333.) The letters produced in evidence in this case were sufficient, prima facie, to prove the plaintiff’s character as administrator of the effects of Charles Belden deceased. The defendant claimed that the assignment from Hallett, president of the bank of Hornellsville, to the plaintiff’s intestate, was without authority, and conveyed no title to the mortgage in suit. The objection is not that the assignment is not in due form, or that it is imperfect as an instrument. The finding of fact is that the mortgage was duly assigned by the mortgagee therein named. It is true that there was no proof that it was authorized by a vote or resolution of the board of directors of the bank. The mortgage being in amount over $1,000, at the time when it was assigned, it is claimed that the transaction is obnoxious to a provision of the Revised Statutes relating to moneyed corporations. (1 R. S., 591, § 8.) This institution was however organized under the general banking law of 1838 (Laws of 1838, chap. 260, p. 245), and the acts additional and amendatory thereof. (N. Y. Stats, at Large; Edmonds’ ed., 4th vol., pp. 134, 179 inclusive.) It is held that to such an institution the provision above cited does not apply. (Leavitt v. Blatchford, 17 N. Y., 521.) It is further claimed that the consideration for the assignment expressed upon its face is but one dollar, and that there is no proof of any greater consideration. The law, however, presumes the assignment to have been made upon a good consideration until the contrary appears affirmatively. (Eno v. Crooke, 10 N. Y., 60.) And in the absence of proof to the contrary, the law also presumes against a debtor, that the assignment of the demand against him was made with due authority. The transaction is open to inquiry however, and upon proof of want of authority, or violation of duty, or overstepping of power would be held void. In the absence of such proof it is upheld. (Bank of Vergennes v. Warren, 7 Hill, 91; Hoyt v. Thompson, 1 Seld., 320, 335, per Ruggles, Ch. J.; Eno v. Crooke, supra.) It is true that there was proof upon the trial that the assignment to the plaintiff’s intestate was upon the consideration of a private indebtedness of Hallett to him.- From this the defendant asks it to be inferred that Hallett without authority, and in violation of duty, used the effects of the bank for his own purposes. We are however, to presume that dealings are fair rather than that they are fraudulent. There is nothing but the fact above presented to excite the suspicion that the chief officer of the bank, ostensibly acting in his official capacity, diverted its effects to his private ends. This is not sufficient to rest upon for the purpose sought, in an action against the debtor. It does not sustain the defendant in questioning the validity of the assignment. (And see Gillett v. Campbell, 1 Denio, 520.) It would have been competent for Wells and Osborne, with or without the concurrence of Hallett or the bank or other holder of the mortgages, to have agreed that the premises described in the mortgage executed by Osborne alone on his individual property should first be liable for the debt. And the equity thus created in Wells and his assigns to have that property first sold to satisfy the debt, could have been asserted by them in this action and a judgment had to that effect. It is not necessary to inquire whether it was such an equity or one akin to it, which the defendant now claims. Osborne testified, and the learned justice has found, that no agreement was made by Osborne or by the holder of the mortgages by which such equity was created. The finding is, that the paper solely relied upon by the defendant to establish it, was executed and delivered to Wells without the knowledge or consent of Osborne or of the plaintiff’s intestate, or of the plaintiff, and after the assignments to the plaintiff’s intestate had been recorded. Ho such equity could be created without the agreement of some one of these three. And inasmuch as the assignments of the mortgages to the plaintiff’s intestate were on record before the paper was executed to Wells, and before the defendant had acted in reliance upon it, they were constructive notice to him that Hallett could no longer deal with the mortgaged interests. The defendant is precluded from using this instrument as an absolute legal discharge of the mortgage or a release of the premises from its lien. ( Van Derkemp v. Shelton, 11 Paige, 29.) The judgment should be affirmed. All concur. Judgment affirmed.