Caldwell v. Bartlett.

If Reed took the goods as a trespasser, the master to whom he delivered them would not be liable until they had been demanded of him, and he had refused to allow the owner to take them. The mere receiving then on board of the vessel, when so delivered, would not be a trespass, nor amount to a conversion. (Ely v. Ehle, 3 Coms. 506.)

If the master, when he received the goods on board, had notice of the fraud, if any there was, of Reed, or notice of facts and circumstances which should have put him on inquiry, and which, on reasonable inquiry, would have enabled him to ascertain the truth, he cannot claim the protection which the law extends to a bond fide purchaser.

Hence, it is evident that, on the case as now presented, the rights of the parties depend on the question, whether the evidence justified the referee in finding that the goods were taken by Reed as a trespasser, without the knowledge or consent of Johnson. If taken by delivery from, and with the knowledge and consent of, anyone authorized by Johnson to make the delivery, then, in judgment of law, they were delivered by Johnson. The testimony is, that a sale had been contracted on the terms that Reed should pay on delivery. The goods were made up and boxed. They were boxed on the morning of the day they were taken away. They were marked that morning by Johnson. During his absence that day, his foreman, a part of whose duty it was to superintend the delivery of goods, made out an invoice and delivered that and the goods to Reed. So Johnson's foreman told him. Johnson does not make the foreman say that Reed made any misstatement to obtain the delivery, or that the delivery was made on any condition, nor does he say that what his foreman stated was untrue. The delivery was on a Saturday. On the following Monday Johnson called at Reed's place of business. He had not previously sent any bill of the goods to Reed, nor any request to him to return the goods.

From this testimony it is quite evident that the goods were taken by delivery from the foreman of Johnson, whose business it was to make delivery. The foreman had not been instructed not to deliver without actual payment. Whatever was done by the foreman, within the general scope of his authority, and D.-III.

23

Grim v. Dyar.

with his knowledge and consent, was done, in judgment of law, by Johnson, and with his knowledge and consent. If the transaction between the foreman and Reed was no more than Johnson testifies his foreman to have said about it, and what the foreman said took place is all that occurred, then it does not appear that any condition was connected with the delivery, nor what occurred or was said in relation to payment.

It being found that the master received and stowed the goods in good faith, without any knowledge of the fraud prac tised on Johnson, the plaintiffs, in order to charge the defendant, should establish a clear primâ facie case of continued property in Johnson, down to the time of the sale to themselves. Presumptively it was in their power to have shown what took place at the time of the delivery to Reed. As the delivery was under a contract of sale, we do not see how it can be found that it was upon a condition that would prevent the title passing, or with a clear intent that it should not pass, until payment was made, without proof other than that the goods were delivered, with an invoice of them, to Reed, at his request, by a person authorized to make a delivery of them.

When the delivery is absolute, without any contemporaneous declaration qualifying it, the onus of proving the condition rests upon the vendor. If no such proof is given, the delivery will be deemed absolute, and the title to the goods will pass to the vendee. (1 Selden, 45, 46.)

The judgment must be reversed, the report set aside, and rule of reference vacated, and a new trial ordered with costs to abide the event.

WILLIAM GRIM and Six Others v. HARRISON G. DYAR

J. D., by his last will and testament, devised all his real estate to his five children, named as tenants in common, in fee, with a lien over to the survivors in case either of his children "should die under age, or married leaving no lawful issue.” Bemble, that the word "or" should be construed "and," so as to confine the limitation over to the event of a child dying without issue, under age.

Grim v. Dyar.

Held, that it was not necessary to decide this question, as the claim of the plaintiffs to the premises in question was clearly barred by an adverse possession of more than twenty years.

(Before OAKLEY, C. J., CAMPBELL and BOSWORTH, J.J.)

May 8, 20, 1854.

THE action was brought to recover the possession of one-sixteenth part of three lots of ground in the city of New York, in Houston street, and one in Broadway. The plaintiffs claimed title as the heirs-at-law of one Catharine Corbett, deceased. The defendant in his answer denied the title, and, as a bar to the recovery, set up an adverse possession of more than twenty years. The following are the material facts, as they were admitted by the counsel of the parties upon the trial:

John Dyckman, the elder, died seized of the premises in question, in the month of July, 1793. He left five children surviving him: First, Catharine, then the wife of Peter Grim, jr., and after his death married to Zachariah Corbett; second, Rebecca, then the wife of John Vreelandt; third, Teunis E. .; fourth, Matthew; fifth, John; all of whom were of full age before the death of their father. Under the provisions of the last will of the father, all the estate, of which he died seized, vested in the children, as tenants in common, in fee, immediately upon his death. Upon a partition made between them, shortly after the death of their father, the premises in question became the property of Catharine, Rebecca, Teunis, and' John, and by them (the husbands of the daughters uniting) were conveyed in fee in September, 1793, in part to William Sloo, and the residue to Anthony Smith, and from those grantees the defendant, by sundry mesne conveyances, derives his title. The actual possession from the year 1793 has been in conformity to the successive conveyances.

Peter Grim, the husband of Catharine, died in 1798. She afterwards married Zachariah Corbett, who died in 1813. She died herself in December, 1849. Rebecca died, without leaving issue, on the 11th September, 1830.

The plaintiffs are the children and grandchildren, and as such the heirs-at-law of Catharine Corbett. They found their claim to recover, in consequence of the death of Rebecca without issue, upon the construction given by their counsel to the

Grim v. Dyar.

following clause (the fifth) in the will of John Dyckman, the ancestor :

"Item, it is my will and pleasure, and I hereby order and direct, that in case either of my children should die under age, or married leaving no lawful issue, that then, and in such case, the part of him or her so dying shall go to the survivors, their heirs, and assigns for ever, to be equally divided between them," &c.

By consent a verdict was rendered for the defendant, subject to the opinion of the court at General Term.

The counsel for the parties now submitted the case upon their printed points.

I. Catharine Corbett, upon the decease of Rebecca Vreelandt, her sister, who died married, leaving no lawful issue, became seized, as tenant in common, of one equal tenth part of the premises in question, under the fifth clause of the will of her father. 1. The limitation over is made to take effect upon the contingency of either of the children dying under age, leaving no lawful issue, or dying married, leaving no lawful issue. 2. This construction gives effect to all the words used, and is rational in itself, and consistent with every other part of the will, and with the situation of the testator's family. (5 Barn. & Ald. 917.) 3. This is the natural and proper sense of the words used, and there is nothing in the clause, nor in any other part of the will, to require or authorize the rejection of the disjunctive sense of the word "or." (Woodward v. Glassbrooke, 2 Vern. 388; Roosevelt v. Thurman, 1 Johns. C. R. 219, 228.) 4. The rule of construction by which the courts have in some cases changed "or" into "and," has no application to the present will. (a) The rule is confined to cases where an estate of inheritance is devised to a person with a limitation over, depending on his age or issue; and is adopted to effectuate the general intent of the testator, and because otherwise if the first taker should die under age, though leaving issue, such issue would be disinherited; and to cases of the like nature. Fairfield v. Morgan, 2 Boss. & Pull. 38 N. R.; Jackson v.

t

Grim v. Dyar.

Blan, 6 Johns. 54; Haunus, lessee, v. Shutz, 2 Binn. 532; 1 Powell on Devises, by Jarman, 375, 5th Law Lib.) (6) In the present case the limitation depends on the failure of issue, with the additional circumstance of dying under age or married. The failure of issue being the leading contingency, the case is not within the reason of the rule. (c) If "or" in this case is changed into "and," the word "married" will be rendered nugatory, and the intent of the testator to preserve to his family the share of a son or daughter who might be married and die without issue, be defeated. (d) It would also defeat his intent, if any of his children died under age and unmarried. (e) The rule in question is not to be extended to any new class of cases, unless absolutely necessary to effect the intent of the testator. (Douglas v. Eyre, Gilpin, 148; Bos. & Pul. 51.)

II. The deed executed by Mrs. Corbett with her husband, passed no greater estate than she then possessed, and cannot operate against her by way of estoppel, to prevent her taking the estate which descended to her upon the death of her sister. (Jackson v. Vanderheyden, 17 Johns. R. 167; 3 Paige C. R. 471; 2 Kent's Com. 149, 168; 2 Ves. Junr. 676; Pellerteau v. Jackson, 11 Wend. 110; Martin v. Develly, 6 Wend. 13.)

III. The plaintiffs being tenants in common with the defendants, and holding under the same title, there is no adverse possession.

I. Rebecca, daughter of John Dyckman, having attained the age of twenty-one years, had a fee simple estate in the property in question, which was not divested by her dying without issue, and she lawfully, after she came of age, conveyed the lots in question to William Sloo and Anthony Smith, in 1793, as before stated. The fee was contingent only upon her dying under age, and if under age, without issue. The settled construction of the words contained in John Dyckman's will, “under age, or married leaving no lawful issue," is that the contingency ceases on the happening of either event, to wit, attaining twenty-one years, or leaving issue. (Jackson ex dem. Burhans and wife v. Blanshaw, 6 Johns. R.; 54 Jarman on Wills, vol.