Marvin v. Marvin.

the chief part of what she had to dispose of by will. I do not understand him as wishing to be understood that the title was acquired by her by a device or scheme by which she was to obtain the legal title for a sum much less than the actual value, and hold it upon a secret trust for his benent; and if in truth the purchase by her was in good faith for the then value of the property, there would seem no very clear reason why he, more than his brother, should receive the profits resulting from its increase in value. But this explanation was a proper one for the consideration of the jury. It is, however, prudent to observe that no such idea appears to have been present to the mind of the deceased or of the appellant himself, when the will of 1861 was drawn and executed.

Other explanations were given, and testimony tending to show, that the purpose to exclude the contestant was formed some months before the will was made; and if upon all this proof the jury had concluded that the deceased, in making the will, acted under the influence of real or supposed provocation, in the indulgence of passion, or under the influence of a perverted and groundless idea that the fifth commandment required her to punish the misconduct of her son by excluding him from any portion of her estate (which the testimony shows was not unfrequently suggested in the family), but that she nevertheless acted freely and in the expression of her own deliberate purpose, without fraud or undue influence from others, the verdict would not have been liable to impeachment for want of evidence to sustain it; and, however unreasonable or even unjust the will may be, it would stand as her will, and be operative because it was her will.

The case was one in which intelligent minds, free from prejudice or partialty, seeking only after the truth, might reasonably differ in their conclusions upon the fact in question. In such case the verdict must be held conclusive.

The judgment appealed from must therefore be affirmed.

All the judges concurred, except HUNT, J., who dissented, on the ground that there was no sufficient proof of undue influence, and GROVER, J., who expressed no opinion.

Judgment affirmed, with costs.

The rule that an estoppel in pais may avail against the defense of usury, is applicable in the case of representations made by the accom modation indorser of negotiable paper that the note is valid business paper, as well as to such representations made by the maker.*

Anthony Mason (for whom, on his death pending the action, George Resseguie and Oliver Mason, administrators, were substituted as plaintifs), sued Benjamin M. Anthony and William Jackson, Jr., in the supreme court, seeking to recover from Jackson, as maker, and Anthony as indorser, of a promissory note.

The defense was usury. The referee by whom the case was tried, found that the note was usurious in its inception, and was passed to the plaintiff before due, by the maker, with the accommodation indorsement of Anthony; that before the purchase by him, the defendant, Anthony, was informed by the agent of the plaintiff that the latter was about to buy the note, and desired to know if it was usurious; that the defendant, Anthony, replied that it was not usurious; that there was a consideration paid for every dollar of it.

As a conclusion of law, the referee found and decided "that the representations of the defendant, if made by the maker of the note, would have operated by way of estoppel to prevent his availing himself of the defense of usury; but that an accommodation indorser could not, by his representations, charge the maker of a usurious note, and that a recovery against the indorser would in effect charge the maker."

The supreme court, on appeal, reversed the judgment, and ordered a new trial, without, however, assigning their reasons. Defendant, Anthony, appealed from the order, and stipulated that judgment absolute might be rendered, if the order should be affirmed.

Bowen & Pitts, attorneys for defendant, appellant ;-Cited *Compare Shapley v. Abbott, 42 N. Y. 443.

*

Mason v. Anthony.

Pitman on Prin. & Surety, 2, 130, 132, 138; Mauri v. Hoffernan, 13 Johns. 58; Hunt v. Amidon, 4 Iill, 345; Powell v. Smith, 8 Johns. 249; Bonney v. Seely, 2 Wend. 481; Pomeroy v. Ainsworth, 22 Barb. 118; Woodruff v. Hurson, 32 Id. 557; Jackson v. Fassitt, 12 Abb. Pr. 281; S. C., 33 Barb. 645; 21 How. Pr. 279; Hanford v. Artcher, 4 Hill, 271; reversing 1 Id. 347; Willoughby v. Comstock, 3 Id. 389; Artcher v. Zeh, 5 Id. 200; Chautauque Co. Bank v. White, 6 N. Y. (2 Seld.) 253; Martin v. Angell, 7 Barb. 410; Dezell v. Odell, 3 Hill, 216; Plumb v. Cattaraugus C. M. Ins., 18 N. Y. 392; Grant v. Morse, 22 Id.

323.

S. E. Filkins, attorney for plaintiff, respondent;—Cited Truscott v. Davis, 4 Barb. 495, 498; Kingsley v. Vernon, 4 Sandf. 361; Dezell v. Odell, 3 Hill, 215; Petrie v. Foster, 21 Wend. 172; Kingsley v. Sandford, 5 Sandf. 364, and cases cited; Lawrence v. Brown, 5 N. Y. (1 Seld.) 394; 4 Duer, 408; 5 Id. 226; 2 Bosw. 248; 29 Barb. 575; 1 Greenl. Ev. § 207; 1 Phil. Ev. Cow. & Hill & Edw. Notes, 453-464, and cases cited; Dowe v. Schutt, 2 Den. 624, and cases cited; Pichard v. Dean, 6 Ed. & Ell. 469; Freeman v. Cooke, 2 Ecch. 654; 3 Kent Com. 268, note c; Hicks v. Crane, 17 Verm. 449; 3 Harring, 90; Ranzely v. Spring, 3 Shep. 130; Davis v. Thomas, 5 Leigh, 1; Crockett v. Lashbrook, 5 Monr. 530; Duchess of Kingston's Case, 2 Smith L. Cas., with Hare & W. Notes, 561, and cases cited.

BY THE COURT.-BOCKES, J.-It has been settled in the supreme court, in numerous cases, that an estoppel in pais may be urged against the defense of usury, the same as in any other case where the doctrine of estoppel in pais is applicable. The decisions in that court are numerous and uniform. Ferguson v. Hamilton, 35 Barb. 427; Chamberlin v. Townsend, 26 Id. 611; Merchants' Bank of Brooklyn v. Townsend, 17 How. Pr. 569; Truscott v. Davis, 4 Barb. 495; Dow v. Schutt, 2 Den. 621. The rule was also well settled in the late court of chancery. Holmes v. Williams, 10 Paige, 326; Mitchell v. Oakley, 7 Id. CS. Also in the superior court. Clark v. Sisson, 4 Duer, 408. It is the same in Connecticut. Roe v. Jerome, 18 Conn.

Mason v. Anthony.

138; Middleton Bank v. Jerome, Id. 443.

And perhaps in

some other States. The estoppel, too, has often been held to be available against an indorser as well as maker.

The distinction marked by the referee, and on which he based his decision, has never been recognized in any reported case, nor is it sound in theory. There can be no reason why an indorser should not be estopped by his representation that the note is valid business paper, as well as the maker. The consequences to the purchaser are the same in both cases.

There is a question, however, not considered in any of the cases, which lies at the foundation of the rule, apparently so well established in the supreme court. It is this: whether the doctrine of estoppel in pais should have application to the defense of usury. This question is worthy of consideration, and is still open in this court. Judge DENIO seems to have had it in mind when discussing the subject in Bank of Geneva v. Patchin Bank, 13 N. Y. 316. In speaking of the rule, he says: "This is carrying the principle of estoppel to the length of protecting a transaction prohibited by a positive law, founded upon considerations of public policy." He adds: "It is not necessary to affirm that doctrine in this case;" hence he refrained from entering upon its examination. The point was commented on in Ferguson v. Hamilton, 35 Barb. 427, and suggestions were made, here unnecessary to repeat.

On careful reflection and discussion, we are of the opinion that an estoppel in pais may be urged against the defense of usury. The same considerations of morality and public policy exist in that as in other cases where the doctrine of estoppel obtains. Nor should we, on other than grounds of absolu e necessity, disturb a rule which has so long controlled the business affairs of the country, and been relied on as settled law.

The order appealed from must be affirmed; and the plaintiff is entitled to judgment absolute, pursuant to the stipulation. given on the appeal.

All the judges concurred, except FULLERTON, J., not voting.

Judgment absolute, with costs.

VOL. III.-14

Mason v. Ring.

MASON v. RING.

March, 1861.

The rule that transactions between attorney and client, by which the former is benefited, will be set aside upon an action brought for the purpose, unless clearly shown by the attorney to have been either just and fair, or purely voluntary on the part of his client, applies to every relation which pre-supposes an ascendant or controlling influence by one party on the mind of the other. (Per SELDEN, J.)

So long, therefore, as the influence exists, the rule applies, although the strict technical relation may have terminated.

A deed or instrument, given in such case, as a compensation for services rendered, will, however, be allowed to stand as security for what is actually due.

The negligence of the attorney, who is the creditor in such a case, in making his entries of charges against his client, and the loose state of his accounts, though these raise a presumption against his claim, are not conclusive.

The finding of the judge in the judgment entered upon the report of a referee to whom it has been referred to take an account, and adopted as the basis of the judgment, may be construed by the language of the report.

James Mason brought this action against James J. Ring, in the New York superior court. Upon defendant's death, Zebedee Ring was substituted as a defendant, both in his personal capacity as heir, and as the administrator of the estate of James J., deceased.

The object of the action was to set aside a conveyance of land which the plaintiff had previously made to the decedent, and which was intended as a compensation for the decedent's services and disbursements as attorney and counsel, and in other capacities as agent of the plaintiff, during a period of about thirteen years.

The plaintiff sued not only to have the conveyance, which transferred forty-five lots of land, set aside, but also to have the accounting and settlement upon which it was based, opened, and the accounts between the parties taken anew.

On the trial, the plaintiff proved some errors in the accounts; and the court, after determining the principles upon