Case of the Empire City Bank. term be reversed, and that the proceedings be remitted to the Supreme Court, with directions to refer the report back to the same or another referee, for further proof and examination, who must be ordered to report a new apportionment, and the further proof which he may take, within a time to be fixed by the court. From the time which has elapsed, it is quite probable that material changes may have taken place in the amount of assets in the receiver's hands, and further facts may have been ascertained in respect to the amount of the debts. As the stockholders ought to be charged with the full amount of the unsatisfied debts, over and above the cash on hand applicable to their payment, and no more, the receiver should be examined before the referee, with a view to have an accurate account taken. If a recovery has been had for the $59,851.40, which the receiver disallowed, or any part of it; or if it can be otherwise shown to be a valid liability against the bank, it ought still to be included in the sum to be apportioned among the stockholders. So if any other debts are established, though not mentioned in the receiver's list, they are to be allowed by the referee. NOTE.-On a subsequent application to the Court of Appeals, it appeared that the sum of $59,851.40, referred to in the above opinion, had been established as a valid claim against the bank, by a judgment of the Supreme Court, rendered after the order of the special term confirming the apportionment of the debts against the stockholders; and that the stock standing in the name of Monell had been cancelled and surrendered, in accordance with a judgment of the Superior Court. Whereupon, the Court of Appeals modified the judgment directed to be entered in pursuance of the above opinion, and ordered that the judgments of the general term of the Supreme Court be reversed, and the judgment of the special term be affirmed. Lattin a. McCarty. LATTIN a. MCCARTY. Supreme Court, Seventh District; General Term, December, 1858. JOINDER OF CAUSES OF ACTION. The plaintiff cannot in one and the same action seek to recover possession of real property on the ground that he is the owner in fee, and that the defendant wrongfully withholds it from him, and also to confirm his title thereto by a decree that the title is in him, and that the defendant be required to convey an apparent outstanding title claimed by him to the plaintiff. Such claims are in consistent. Whether the provision of 169 of the Code, allowing both legal and equitable causes of action to be united, extends to any other than that class of cases in which, it was formerly well settled that a court of equity, having acquired jurisdiction, could go on to administer legal relief,—Query? Appeal from judgment ordered on the pleadings. This action was brought against Michael McCarty and three others to obtain possession, and confirm to the plaintiff the title, of certain real property in the city of Auburn. The complaint was as follows: [TITLE OF THE CAUSE.] "John C. Lattin, plaintiff in this action by Underwood, Cox, and Avery, his attorneys, complains of Michael McCarty, David L. Stanford, and others the above named defendants, and says: That heretofore, and on or about the sixth day of September, 1856, the said defendants, Nelson Fitch and Franklin L. Griswold, by deed bearing date that day, in consideration of the sum of four hundred dollars, sold, granted, and conveyed to the plaintiff all that certain piece or parcel of land in the city of Auburn, and county of Cayuga, and State of New York, on the south side of Cottage-street, and bounded as follows, to wit: Beginning at the northwest corner of a lot of land belonging to John McGarr, running thence south along said McGarr's VOL. VIII-15 Lattin a. McCarty. west line ten rods, thence running west parallel with said Cottage-street six rods, thence running north parallel with said McGarr's west line ten rods, to Cottage-street, thence running east along the line of Cottage-street six rods, to the place of beginning. "Which deed, being afterwards duly acknowledged, was recorded in the clerk's office of Cayuga county, in Book No. 93 of deeds, at page 181, &c., where the same remains on record; and thereupon the plaintiff duly took possession of the said premises, and repaired and painted the building standing thereon, and subsequently let the same to one Ransom Eggleston, as tenant, and placed him, the said tenant, in possession thereof; and he, the said Eggleston, remained so in possession under the plaintiff, until on or about the 1st day of October, 1857, when he was induced to leave the said premises by the sinister and fraudulent solicitations and inducements of the said defendant Michael McCarty as hereinafter set forth, and thereupon the said Michael McCarty fraudulently entered into possession of the said premises, contrary to the wish of the plaintiff, and still holds and maintains the possession thereof against the plaintiff, and the plaintiff is now, and since the said 6th day of September, 1856, has been lawfully and equitably entitled to the possession of the said premises, and the owner thereof in fee simple, and the said Michael McCarty well knowing the same, wrongfully withholds the possession thereof from the plaintiff. "And the plaintiff further says that heretofore, and at some time in the forepart of the year 1854, the said premises were occupied and possessed by the said McCarty, under a certain contract in writing, or article, which had before that time, and on or about January 24, 1848, been executed and delivered to him by one Erastus Corning of Albany, who theretofore for many years had owned the same in fee simple; by which article or contract the said Corning (by the said David L. Stanford, who was his agent for that purpose) covenanted with the said McCarty upon being paid the sum of $230, in instalments therein provided, to convey the said premises to him the said McCarty, by a good and sufficient deed, and at that time (1854) the said McCarty having paid some portion, of the said $230, and being in the occupancy of said premises, in consideration of a certain other piece of real estate situated in Auburn, Lattin a. McCarty. known as the Timmons place, being conveyed to him, the said McCarty, by the said Stanford, agreed with said Stanford to convey to him, the said Stanford, all his (the said McCarty's) right, title, and interest of, in, and to, the said first above described premises, and to assign and transfer to him, the said Stanford, his (the said McCarty's) article or contract therefor; and thereupon the said agreement was consummated by the said McCarty and the said Stanford; and the said Stanford did convey to the said McCarty the said Timmons place, and took the said McCarty's article, and agreed with the said McCarty to assume the unpaid portion of the consideration described in said article, and to pay the same to said Corning, and the said McCarty then assigned and transferred his said article to said. Stanford, and took the deed from said Stanford for the said Timmons place, and placed the same on record in the clerk's office in Cayuga county, and abandoned and surrendered to said Stanford the possession of the said premises first above described, and entered into the possession of the said Timmons place. "And afterwards, and on or about the 24th day of June, 1854, the said Stanford, inconsiderately thinking that he had title to the said premises, and being indebted to the said defendants, Franklin L. Griswold and Nelson Fitch, mortgaged to them the said first above described premises for the consideration of $325, and giving the usual power of sale upon default of payment of the principal or interest thereof as therein provided, which mortgage being duly acknowledged, was afterwards recorded in the said clerk's office, in Book 46, at page 401, &c., and the same still remains of record, as by reference thereto will fully appear. "And afterwards, and on or about the month of October, A. D. 1854, the said Stanford conceiving the idea that the deed from the said Corning to the said McCarty of the said premises was still necessary to complete his (the said Stanford's) title to the same, and supposing that he, the said Stanford, had already received and recorded the deed thereof from McCarty to him, procured from the said Corning his warranty deed to the said McCarty, of the said first above described premises, and the same was delivered to him by the said Corning with that understanding and intent; but thoughtlessly omitted to inquire Lattin a. McCarty. into the circumstances of the same, or to put the said deed last mentioned immediately upon record, he, the said Stanford, having fully paid to the said Corning the consideration money of the said article or contract, and being entitled to the said deed according to the terms thereof; and afterwards, and on or about the 29th day of July, 1856, the said Stanford having by himself or his tenant enjoyed the uninterrupted and quiet possession of the said premises first above described, for more than two years then last past, and being in default as to the payment of the interest upon the said mortgage to the said Fitch & Griswold, the same was by the said Fitch & Griswold duly foreclosed by advertisement, under the statute in such case provided, and the premises duly sold at auction; and the same were thereupon purchased in by the said defendants Griswold & Fitch, for the price of $250, and the said advertisement and affidavits establishing the said foreclosure and sale were thereupon placed on file, and also duly recorded in the said clerk's office, in Book No. 93 of mortgages, at page 180, as by reference thereto the whole of the said proceedings and the proofs of the regularity thereof will fully and at large appear; and shortly thereafter, as herein before stated, the said premises were by the said defendants, Griswold & Fitch, sold and conveyed to the said plaintiff. "And the said plaintiff says that he purchased the said premises in good faith from the said Fitch & Griswold, without any notice or suspicion of any defect in the title thereof, and paid therefor an adequate and valuable consideration, and entered upon the same in good faith, and made valuable repairs and improvements thereon to the value of $300 and upwards. "And afterwards, and as the plaintiff is informed and believes, the said defendant Stanford having observed among his papers the said deed from the said Corning to the said McCarty, as above described, conveying the said premises, and the same being hitherto unrecorded, intending to make good the plaintiff's title, left the same at the office of the clerk of Cayuga county, and requested the county clerk to record the same, and the same bearing date September 1, 1854, was, then and there duly recorded in Book 95 of deeds, at page 185, &c., on the of day And the the said |