Kellogg v. Sweeney.

It has been held that a common carrier of passengers, is liable only for money contained in a trunk or other depository of a passenger's baggage, which has been lost, to an amount reasonably sufficient to defray the expenses of the journey on which the passenger at the time of the loss has entered.

This rule has never been extended to innkeepers that I have been able to discover. Yet it would be difficult to furnish a reason why it should not apply to both. Custom created the liability of both, and the same considerations that induced a limitation of the liability of the one, should limit it as to the other.

It is enough, however, that no such limit has been applie 1 to the liability of innkeepers.

It would seem to be just and reasonable, that when a satchel, bag, or trunk of a guest contains articles of great value, that he should disclose it to the innkeeper, to the end that he may adopt such precautions against loss, as the magnitude of the value makes necessary.

It is very hard upon a landlord to hold him liable for large sums of money or jewelry which has been left in a gues.'s room in his trunk, when no intimation has been given that any such property has been taken there.

But hard as it is, I find no case which exempts him unless he brings home to the guest notice that such valuables must be delivered to him (the landlord) or deposited in such place as he shall direct.

The plaintiff was entitled to recover the market value in legal tender currency of the gold converted.

Although the acts making gold coin a legal tender are not repealed, yet the effect of making paper a legal tender in payment of debts has been to convert gold coin into an article of merchandise, and it becomes necessary thus to treat it, or the greatest injustice must result.

No wrong-doer should be permitted to be the gainer by his wrong. But if I seize my neighbor's gold coin, worth in the market eighty per cent premium, and discharge my liability by paying in legal tender notes, I have made a splendid

Wood v. Moorhouse.

speculation. If such is declared to be the law, holders of gold and silver coin will need an army to protect them. Such cannot be the law.

The defendant did not do what was necessary to obtain the protection of the act of 1855, and he has no reason to complain that he has lost the benefit of it.

The judgment should be affirmed.

BACON and FOSTER, JJ., concurred. MORGAN, J., dissented.
Judgment affirmed.

CHARLES T. WOOD and FREDERICK F. WOOD, by EMMA WOOD, his guardian, v. SOMERS MOORHOUSE, AMASA P. HART, LEVI CARRIER, JAMES F. SIMONS, AMOS HUNTLY, CYRUS JEWETT and others, Respondents.

(GENERAL TERM, FIFTH DISTRICT, DECEMBER, 1809.)

An execution was issued to the sheriff in September, 1838; on the 26th of the same month, he caused notice of the sale of certain real estate, belonging to the judgment debtor, for the 1st November ensuing, to be inserted in a newspaper, printed in the proper county, and continued once a week, for six successive weeks, and sold said property under the execution, at an adjourned day of sale. The judgment debtor died in October, 1838.—Held, a valid sale, as against the heirs-at-law of the judgment debtor, notwithstanding the latters death pending the advertisement.

Notices of the sale were posted by the sheriff for a shorter time than directed by the statute; the plaintiff in the execution purchased at the sale, without knowledge of the irregularity, for less than his judgment, and assigned the certificate, for a valuable consideration; and the same was several times further assigned to assignees for value and without notice; and within fifteen months after the sale, the last assignee, who was also owner by assignment of a judgment lien on the property, redeemed the premises, and obtained a sheriff's deed therefor. In 1843, a mortgage, executed in 1835, upon the property, was foreclosed, the property sold, and the purchaser entered at once into possession, and continued to occupy through those claiming under him at the time of this suit. The heirs-at-law of the judgment debtor, the eldest of whom, at the time of his death (October 1838), was seven years of age, not being made

Wood v. Moorhouse.

parties to the foreclosure, brought this suit, in 1862, to redeem the property from the said mortgage.—Held, the plaintiff's title in the property hao been divested by the execution sale, redemption, and deed thereon, and the complaint was properly dismissed.

It seems, the purchaser at the execution sale, though plaintiff in the execution, was not chargeable with notice of the irregularities in the sheriff's proceedings under the execution.

And it seems, although the court may, on motion, set aside the sale for such irregularities, and order another, yet, when the party injured delays until the sale has been consummated, or until the time for making a motion has gone by, the purchaser, although plaintiff in the judgment, must be considered a bona fide purchaser, under $40, 2 R. S., 369.

And if not a bona fide purchaser, it seems, if he has assigned the certificate, or a redeeming creditor has acquired his interest for value paid, the judgment debtor cannot assail the title of such purchaser, or creditor, by reaso a of defects or irregularities in the proceedings to sell.

It seems that every person buying at a sheriff's sale, for the purpose of satisfying an honest debt, is a bona fide purchaser.

It seems that the statute relating to the time and manner of giving notice is directory merely, and non-compliance with its provisions does not vitiate the sale; and if mandatory, the remedy is by motion.

That where a sale is made in violation of law,e. g., at a time before sunrise, &c., the purchaser will be presumed to know the law, and though he acts in good faith, that it is not in accordance therewith; otherwise, however, where the sheriff's proceedings have been irregular. In the latter case, the purchaser is at liberty to presume that the officer has discharged his officia. duty.

It seems where a sale is irregular, for the reasons mentioned, an application to set it aside after the debt is discharged by the statute of limitations, and the plaintiffs are chargeable with gross laches, comes too late. Held, further, that it would be presumed in favor of the proceedings on the redemptica in question, that the money was paid by the redeeming creditor to the purchaser, creditor, or officer making the sale, as required by $$ 59 and 60, 2 R. S., 373.

Also, that such creditor had produced a certified copy of the judgment on which he redeemed, together with a verified copy of the assignment, or san affidavit of the amount due (§ 60).

Also, that such creditor had caused the execution of all assignments of the certificates to be acknowledged, or proved as deeds, as required (Id. 297, § 69), and to be filed in the office of the county clerk.

On the 5th October, 1835, the premises in question in this suit were owned by Daniel Kellogg. On that day he conveyed them to Richard S. Corning, taking from the latter a

Wood v. Moorhouse.

mortgage on said premises to secure $7,656.08 of the purchase money, payable in six equal annual installments, with interest.

On the 2d December, 1837, Corning conveyed said premi ses to Theodore and Junius Wood, subject to said mortgage.

In May, 1836, said Kellogg died, leaving a will, in which Leitch, Kellogg and Comstock were appointed executors.

The will was duly proved, and the executors took upon themselves the duties of said trust.

In December, 1841, said executors commenced an action in chancery to foreclose said mortgage, and such proceedings were had in said action that judgment of foreclosure was entered, and by virtue thereof, said premises were sold by one of the masters of said court, on the 22d April, 1843. Leitch, one of the executors, became the purchaser at said sale, and received the master's deed of the premises.

Corning, Sophronia Wood, executrix of Theodore Wood, Junius Wood, Harry Raynor, and Willet Raynor, were the only defendants in the action.

Theodore Wood, one of the tenants in common of the premises, died in October, 1838, owning one-half thereof, and leaving him surviving his widow, Sophronia and Charles T. and Frederick L. Wood, his children and only heirs-at-law. Said Wood left a last will, whereby he devised all his real estate to his two sons, subject to the dower of his widow therein.

By the will, the executors were authorized to sell so much. of his real estate as should be necessary to pay his debts after applying the personal estate; and the residue of his estate, after the debts were paid, was to be divided among his heirs according to the laws of the State.

At the time of the death of said Theodore Wood, the said Charles T. and Frederick L. were minors, the former being seven and the latter six years of age.

Leitch, immediately after his purchase of said premises, went into possession under the title acquired by his purchase

:

Wood v. Moorhouse.

at the master's sale, and he and those claiming under him viz. the defendants Moorhouse, Hart, Carrier, Simons, Huntly and Jewett, have ever since been in possession, and received the rents and profits thereof.

On the 1st January, 1838, a judgment was recovered in the Supreme Court by Timothy Pratt, against Baker, Brackett and Theodore Wood, for $2,000.

In September of the same year an execution issued on the same judgment to the sheriff of the county of Oswego, who, on the 26th of that month, caused a notice, dated on that day, to be published in a newspaper printed in said county once in each week, for six successive weeks, that said premises would be sold to satisfy said execution on the 1st November then next, at ten A. M., at Fulton.

Notices of said sale were not posted in three public places in said town six weeks before the day of sale, but they were posted for more than five weeks before such day of sale.

On the 10th November said premises were sold by the sheriff, and bid in by said Pratt for $600, and the sheriff executed and delivered to him a certificate of said sale; a copy thereof was filed in the clerk's office of Oswego county, and the sheriff's fees, poundage, &c., paid by said Pratt.

The said certificate came through several assignments made for a valuable consideration from Pratt to Henry Davis, Jr., and without notice to any of the assignees that the notices of the sale had not been duly posted.

On the 7th May, 1838, Horace White recovered a judgment in the Supreme Court against Theodore Wood for $263.93, which judgment said White assigned to said Davis.

Before the expiration of fifteen months from the sale on the Pratt judgment, and while one Johnson held the certificate of the sheriff of said sale, said Davis redeemed the said premises from said sale, paying Johnson the amount necessary to be paid for that purpose, and obtained a deed from the sheriff.

On the 4th February, 1863, the said Frederick L. Wood died intestate, leaving Charles F. Wood, his only heir-at-law,