Dalrymple v. Williams.

to affect their verdict, an intent differing from that actually expressed by the verdict as rendered in open court. In early times the pains and penalties visited upon jurors for false verdicts furnished an additional reason why they should not be allowed to impeach them. Watts v. Brains, Cro. Eliz, 778 But the rule is well established, and at this day rests upon well-understood reasons of public policy as connected with the administration of justice, that the court will not receive the affidavits of jurymen to prove misconduct on their part, or any act done by them which could tend to impeach or overthrow their verdict. This rule excludes affidavits to show mistake or error of the jurors in respect to the merits, or irregularity or misconduct, or that they mistook the effect of their verdict and intended something different. Clum v. Smith, 5 Hill, 560; Ex parte Caykendoll, 6 Cow. 53; The People v. Columbia Common Pleas, 1 Wend. 107; Jackson v. Williamson, 2 T. R. 281; Davis v. Taylor, 2 Chitty. 268; Vaise v. Delaval, 1 T. R. 11. None of these decisions or the principles upon which they rest are decisive of the precise question now presented. They only decide that the verdict to which the jurors have once assented, and which they have reported to the court, cannot be impeached or set aside upon their declaration or affidavit. But the question is quite different when the allegation is that they have been misunderstood by the court, or erroneously reported to it, and that the entry made is not and was not their verdict. It is not an attempt to reverse their action in the jury-room but to establish it. It is in the nature of an attempt to correct a clerical mistake. Had the jury rendered a sealed verdict, and their clerk or scrivener made a mistake in reducing it to writing, a correction of the writing after it had reached the court and been entered upon the minutes would be no impeachment of the verdict or of the integrity, intelligence or action of the jury. The jury in furnishing proof of the clerical mistake would stand by their agreement and aid in giving effect to their deliberations and determinations. In the case now before us it is merely sought to prove by the affidavits of the jurors that by an accident, without intentional fault, the verdict of the jury was erroneously delivered to and received by the clerk. I am unable to see in this an infringement of the rule forbidding jurors to impeach their verdicts; neither can I perceive serious danger in any practice that may grow up under such an exception to the general rule. Applications of this character will be rare, will be made before the judge presiding at the trial and while the whole subject is fresh in the minds of all, and never will be granted except in cases free from reasonable doubt. Something must always be trusted to the discretion of the judge. Discretion cannot be withheld in all cases because it may

Barlow v. The Saint Nicholas National Bank.

sometimes be abused. We are not without precedent to justify the reception of and acting upon the affidavits of jurors in this case. In Cogan v. Ebden, 1 Burr. 383, a verdict wrongly delivered by the foreman was set right upon the affidavits of eight of the jury. Sargent v.

5 Cow. 106, went farther than the court was asked to go here. Affidavits of the jury were received to show that they were misled and adopted a principle in estimating damages not allowed by law. This was defended and approved in Ex parte Caykendoll, supra.

In Jackson v. Dickenson, 15 Johns. 309, affidavits of jurors were held admissible to show that a mistake had been made in taking their verdict, and that it was entered different from what it was intended. The court draw a distinction between what transpires while the jury are deliberating on their verdict and what takes place in open court in returning their verdict, holding the statements of jurors admissible as to the latter but not as to the former. Roberts v. Hughes, 7 M. & W. 399, is like the last case quoted, and affidavits of the jurors were received as to what took place in open court on the delivery of the verdict, to correct it. See, also, Prussel v. Knowles, 4 How. (Miss.) 90.

The affidavits were admissible, and they made a clear case for correcting the entry. It would have been unjust to send the parties down to another trial, and as the defendant was not in fault there was no reason for charging him with the costs either of the motion or of the trial.

The order of the General Term must be reversed and that of the Special Term affirmed, with costs of this appeal.

Ali concur; except FOLGER, J., dissenting.

Ordered accordingly.

BARLOW V. THE SAINT NICHOLAS NATIONAL BANK, appellant

(63 N. Y. 399.)

Taxes · assessment when not an incumbrance

breach of covenant.

By statute assessors of taxes were required to assess lands and to deliver the completed assessment roll to the board of supervisors, who inserted the amount of tax and delivered the roll with their warrant to the collector. Defendant conveyed land with covenants against incumbrances, after it had been so assessed by the assessors, but before the supervisors had extended the tax. Held, that the assessment did not constitute an incumbrance. *

* See Cochran v. Guild, 106 Mass. 28; 8 Am. Rep. 296.

A

Barlow v. The Saint Nicholas National Bank.

(TION for an alleged breach of covenant against incumbrance contained in a deed from defendant to plaintiffs of certain premises situate in Westchester county.

The facts sufficiently appear in the opinion. The referee decided that there was no breach of the covenant proved, and directed judgment dismissing the complaint. Judgment was entered accordingly, which was reversed at General Term.

Edward H. Hawke, for appellant. No tax or assessment becomes a hen or incumbrance upon real estate until the amount is ascertained and determined. Dowdney v: Mayor, etc., 52 N. Y. 186; Kerr v. Tousley, 46 Barb. 150; Maurice v. Millen, 26 id. 41.

Francis Larkin, for respondents. The assessment was an incumbrance upon the farm at the time of the conveyance. Rundell v. Lakey. 40 N. Y. 513; Edwards v. Coggswell, 1 N. Y. S. C. 416.

ANDREWS, J. The defendant, on the 27th of October, 1868, for the consideration of $43,000, conveyed to the plaintiffs a farm, situated in the town of Ossining in the county of Westchester, by deed containing a covenant against incumbrances. The assessors of that town, in June of that year, assessed the farm to one Jane Ann Edgerton, the occupant, at the sum of $18,400, and completed their assessment roll in August, thereafter, as required by law, and delivered it to the supervisor of the town, who delivered it to the board of supervisors of the county at their next annual meeting, commencing November 9, 1868, and the board of supervisors, pursuant to law, extended the taxes thereon, and delivered it with the warrant attached to the collector of the town of Ossining. On the roll the sum of $386.36 was entered as the tax against Jane Aun Edgerton, upon the assessed value of the farm, and this sum, with the collector's fees, was paid by the plaintiffs, the then owners of the farm, to the collector, January 14, 1869; and they having demanded of the defendant the amount of the tax so paid by them, which the defendant refused to pay, bring this action to recover it.

The question presented is, whether, under the circumstances, there was a breach of the covenant against incumbrances. The plaintiffs base their right to recover in the action solely upon the alleged breach of the covenant; and if any other ground exists upon which they could sustain an action to recover back the money paid in extinguishment of the tax, it is not disclosed in the pleadings and was not suggested upon the trial, and cannot now be considered. The question presented is one of con siderable practical importance.

Barlow v. The Saint Nicholas National Bank.

In Rundell v. Lakey et al., 40 N. Y. 513, the plaintiff, to whom the defendants, intermediate the completion of the assessment roll and the levying of the tax by the board of supervisors, had conveyed certain premises with covenant for quiet enjoyment, was called upon by the collector of the town in which the premises were situated, after the tax had been levied and the warrant for its collection had been issued, to pay it, and at the request of the defendants and upon their agreement to refund the amount to him "in case they were legally liable to pay it," paid the tax, and afterwards brought his action against them to recover the amount paid, and recovered, and the judgment in his favor was affirmed by this court. Five judges concurred in the result. GROVER, J., who delivered the only opinion in the case, places his judgment upon the effect of the agreement considered in connection with the fact that, under the tax laws, the owner of real estate residing in the town or ward where it is situated and to whom it is assessed, is primarily liable for the payment of the tax subsequently imposed under the assessment, although he may have parted with his title, after the completion of the assessment roll by the assessors, and before the levying of the tax by the board of supervisors. HUNT, C. J., and MASON and JAMES, JJ., were of opinion that the plaintiff was entitled to recover independently of the agreement upon the covenant in the deed. DANIELS, J., was for affirmance, upon the ground that the tax could not have been collected by the collector from the defendants, and that they were liable to pay it within the meaning of the agreement. LOTT, J., dissented, and Woodruff, J., did not vote. The question presented in this case was not decided, and we are now called upon, in the absence of any controlling adjudication, to decide it upon general principles applicable to the subject. The stat ute (1 R. S. 388, § 1) declares that all lands and personal estate within this State shall be liable to taxation, subject to the exemptions specified. The general rule is that all property within the State shall bear its part of the public burdens, and the system of general laws relating to taxation is arranged with a view to bring all the taxable property of the State within the reach of the taxing power, and to subject it to the action of boards of supervisors, to which is committed the power of imposing taxes to be raised for town, county and State purposes, upon the property within their respective jurisdictions. For the purpose of ascer taining the property liable to taxation, and the persons liable to be taxed therefor, assessors are elected in each locality, and it is made their duty, at the times and in the manner pointed out by statute, to make and complete an assessment roll, containing, among other things, a description and valuation of the real estate situated within the town, and the lands

Barlow v. The Saint Nicholas National Bauk.

1 R.

of resident owners are to be assessed to the owners or occupants. S., 889, §§ 1, 2. The assessment roll, when completed, is to be delivered by the assessors to the supervisor of the town, and by him to the board of supervisors at their next annual meeting. 1 R. S., 394, § 27. But no lien or incumbrance on the lands assessed is created by the act of the assessors. The assessment is the basis upon which the board of supervisors act in apportioning the tax, but it is, in no sense, the imposition of a charge upon the land described in the roll. This is one of the preliminary steps which result in taxation. So is the election of assessors, and taxation of the lands, within the town is as certain to take place before the assessors commence making the roll as after it is completed. The arrangements of the statute necessarily lead to the imposition of taxes at each annual meeting of the supervisors. The roll, when completed, fixes the valuation of the property to be taxed, but it does not determine the amount of the tax, and the most which can be claimed is that it renders more certain and definite the liability to taxation which, nevertheless, existed before the assessment was made. The language of the covenant in the defendant's deed is, that the premises 66 are free and clear from all incumbrances whatsoever." The covenant against incumbrances is a covenant in presenti, and, like the covenant of seizin, if broken at all, is broken as soon as the deed is executed. 4 Kent's Com. 471; Rawle on Covenants of Title, 89; Horton v. Davis, 26 N. Y. 495. The right of action accrues at once, and unless an action will lie immediately there is no breach of the covenant. The covenantee suing upon such a covenant may be restricted to nominal damages where he has not been subjected to actual loss (Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 id. 105); but the right of action, when it exists at all, is complete the moment the covenant is made. If the plaintiff had brought his action the day after he took his deed could he have maintained it? I think not. The answer would have been perfect, that the entry of the land in the assessment roll constituted no incumbrance.

It is claimed that the tax, when levied by the supervisors, related to the time of the assessment, and that in this view it may be brought within the operation of the covenant. The doctrine of relation is a fiction usually employed to support and protect some equity. If this doctrine can, under any circumstances, be applied to a covenant in presenti, so as to make a tax levied after the covenant was made an incumbrance as of the time when the deed containing the covenant was executed, there are equitable considerations which prevent its application in a case like this.