Burke agt. Nichols. a part of the consideration money he gave a mortgage thereon. Neither the deed nor mortgage referred to any building on the premises. There was a house standing on the lot, which projected over the adjoining lot. In consequence thereof, the defendant purchased the adjoining lot, and thus became the owner of both lots and of the whole building. The plaintiff now brings an action to foreclose the mortgage, and the defendant sets up by way of counterclaim the above facts, on which he asks for damages for the portion of the house which stood on the adjoining lot. On the trial the referee excluded the evidence offered to prove this counterclaim. There is no doubt the deed of the lot conveyed everything standing upon it, whether dwelling or other buildings, fences, &c., that belonged to the vendor, and if there was anything attached to the land that belonged to any other person, the vendee could recover damages under the covenant of seisin. This was settled in the case of Mott agt. Palmer, (1 Comstock, 564,) but that case goes no further. It does not hold what is necessary for the defendant's counterclaim, that where a house stands upon two lots, a conveyance of either makes the grantor liable for the value of that portion of the house which stands on the adjoining lot. There is no doubt that previously to the adoption of the Code of Procedure, any defect of title, where the purchaser remained in possession, could not be set up as a defence to a proceeding to foreclose the mortgage. So far as that matter would be a defence, the law remains unchanged, and it is no more a defence now than it was before the Code became a law. The only question, therefore, which can arise is, whether the defendant could set up this matter as the foundation of a counterclaim. In The National Fire Insurance Co. agt. McKay (21 N. Burke agt. Nichols. Y. Rep, 191,) Ch. J. COMSTOCK says, that "a defendant who is personally liable for the debt, may probably introduce an offset to reduce or extinguish the claim." This was not necessary to the decision of that case, and it does not appear that the other judges concurred in that expression of opinion. I understand from another of the justices, that on that point there was no decision. It can hardly, therefore, be considered as authority, although entitled to great weight. But whether such counterclaim was admissible or not, the evidence offered did not show any right to recover against the plaintiff therefor. The deed did not purport to convey any building by description. Whatever right the defendant had to the buildings on the land conveyed, arose from the principle that a man who conveys a lot conveys everything standing on the lot and being affixed to the freehold. This would give him title to so much of the house as stood on the lot. We have been referred to no authority to show that it gave anything more. The cases of lights, overhanging gutters, and other matters of a similar nature, do not apply. They rest on a different principle, which cannot be available in this case; and in most, if not all of the cases, they arise between vendor and vendee, where the vendor owned both pieces of land. We think the defendant gained no title to the portion of the house which did not stand on the lot conveyed to him, and that the plaintiff was not liable, because part of the house stood on another lot. The clear intent of the deed was not to convey more than one lot, and the rule of construction of deeds is to carry out the intent of the parties. The defence was properly excluded, and the judgment should be affirmed. Judgment affirmed with costs. Wicker agt. Harmon. SUPREME COURT. CHARLES D. WICKER and others agt. ISAAC D. HARMON and others. Although an order of arrest in an action on contract may be granted upon facts entirely independent of those necessary to be stated in the complaint, yet, where in such action the statements in the complaint are inconsistent with material allegations contained in the affidavits upon which the order of arrest is founded, no order should be allowed. Thus, where the plaintiffs alleged in their affidavits as a ground for an order of arrest that the defendant falsely represented that another person was authorized to indorse the name of the payee on a bill of exchange, whereby the plaintiffs were induced to discount the said bill, when the person so indorsing had no authority to make such indorsement, And the cause of action set out in the complaint was the said bill of exchange which they sought to recover against the drawer, without stating anything respecting who indorsed it, but would necessarily have to make title through the indorsement, held inconsistent with the affidavits. Since the amendment of § 204 of the Code, a motion to vacate an order of arrest may be made after the defendant has perfected bail, and any time before judgment. New York Special Term, July, 1861. JAMES T. BRADY, for motion. WILLIAM H. SCOTT, opposed. LEONARD, Justice. An order of arrest in an action on contract may be granted upon facts entirely independent of those necessary to be stated in the complaint. There is no inconsistency in such an action, to obtain an order of arrest on affidavits showing that the seller parted with his goods or his money on false and fraudulent representations made by the purchaser as to his pecuniary circumstances, while the complaint alleges only a loan of money or a sale and delivery of goods, which remain unpaid. No order of arrest should be granted, however, in an action on contract, where the statements in the complaint are inconsistent with material allegations contained in Wicker agt. Harmon. the affidavits, upon which the order of arrest is founded. (Stelle agt. Palmer, 7 Abb. P. R., 181.) The ground of arrest set out in the affidavits upon which the order of arrest was obtained in this case, is that the defendant, Isaac D. Harmon, falsely represented that J. L. Huse was authorized to indorse the name of C. L. Harmon on a certain bill of exchange for $3,200, payable to the order of C. L. Harmon, whereby the plaintiffs were induced to discount the said bill, and alleging that Huse had no authority to indorse the name of C. L. Harmon. The cause of action set out in the complaint is the said bill, upon which the plaintiffs seek to recover against Isaac D. Harmon, as the drawer thereof. Nothing is stated in the complaint tending to show that C. L. Harmon or any one else has ever indorsed the bill; but it is plain that the plaintiffs can never recover on this bill without making title through the said indorsement as genuine or made by the authority of C. L. Harmon, express or implied. Isaac D. Harmon moves to vacate the order of arrest on affidavits showing that Huse indorsed the name of C. L. Harmon with full authority, or at least under such circumstances as will fully establish his liability. The defendant does not desire to take issue on this indorsement. contrary his defence against the charge of fraud consists wholly in averring the obligatory character of the indorse ment. On the It follows that the plaintiffs may obtain judgment against Isaac D. Harmon, as the drawer of this bill of exchange, on his admission of the indorsement by default in pleading, or by his answer to the complaint, notwithstanding their assertion in the affidavits on which the order of arrest has been granted, that the indorsement of the payee was made without authority. In my opinion it is impossible that the plaintiffs can be permitted to insist when they apply for an order of arrest, that the indorsement is without authority, and the indorser Wicker agt. Harmon. not liable thereon, and at the trial, or by their complaint, claim that it is a genuine indorsement. Such inconsistencies would be a reproach to the administration of justice. The plaintiffs' counsel suggests that the defendant will be estopped at the trial from denying the authority of Huse to make the indorsement, the defendant having induced the plaintiffs to discount the bill by an assertion of its validity. If we admit that the defendant would be so estopped, I think we may as justly assert that the plaintiffs are estopped from denying its validity, after having asserted it in their complaint or before the court at a trial, or after asserting its validity in any legal proceeding where such assertion would be to their advantage. There is, also, the greatest reason to doubt whether the indorsement was in fact made without authority. The only evidence to show want of authority is the statement of the indorser, who has the greatest interest to deny his liability. Huse, who made the indorsement, states that he was authorized. Enough is shown to render it still more doubtful whether, if Huse were not actually authorized to indorse this particular bill, the defendant did not fully believe that he was so authorized. Huse had frequently indorsed such bills with the knowledge of C. L. Harmon, and without any objection on his part. The plaintiffs' counsel objects that a motion to vacate an order of arrest cannot be made after the defendant has given and perfected bail. This objection seems to be unfounded since the last amendment of section 204, authorizing the motion to be made at any time before judgment. The motion to vacate is granted, with $10 costs of motion to the defendant, to abide the judgment. |