
    Sarah E. Mortimer, Resp’t, v. Mary Ann Chambers et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Statutes—Amendment.
    When an act is passed by the legislature declaring that a previous act, or some part of it, shall be amended “so as to read as follows,” the original act is not to be deemed repealed, and re-enacted as modified, but ther unchanged portion is to be considered as having continued the law from the time of its original enactment, and the new or changed portion to-have become the law only at and subsequent to the passage of the amendment.
    2. Evidence—Proof of signature.
    Evidence sufficient to prove signature of a decedent to instrument used as a basis for comparison of signatures,
    3‘ Same—Delivery—Code Civ. Pro., § 829.
    Testimony by plaintiff that an instrument in suit executed by a decedent was in her possession prior to and at the time of the decedent’s death, presumptively proves delivery by the decedent during her lifetime, and is-not incompetent under § 829 of the Code.
    4. Bills and notes—Consideration.
    A non-negotiable note imports a consideration therefor as against a legatee or devisee as well as against the maker or his executors.
    5. Limitation—Action to charge real estate.
    An action brought under §§ 1843-1850 of the Code to charge debts of a testatrix upon devised real estate may be brought at any time within ten years after the cause of action accrues.
    6. Same—Counterclaim.
    Such an action must be brought jointly against all the devisees, and only a joint judgment can be recovered, and hence a counterclaim in favor of one of the defendants only cannot be allowed.
    Appeal from judgment of' special term in favor of the plaintiff.
    . C. Fine, for app’lts; W. J. Underwood, for resp’t.
   Andrews, J.

This action is brought, under §§ 1843 to 1850’ of the Code of Civil Procedure, against the defendants, who aredevisees under the will of one Louisa F. Fardon, for the purpose of charging upon real estate devised to them certain alleged debts-of the testatrix.

The complaint alleges the making by said testatrix of three certain promissory notes ; that the plaintiff is the owner and holder of said notes; that on or about December 25th said testatrix died, leaving a will, of which a copy is attached to the complaint The complaint also alleges, in substance, that the .testatrix by said will ¡gave the defendant Mary Ann Chambers a life estate in all of her property, real and personal, with remainder to her husband, the defendant William F. Chambers, subject to the payment of an annuity of $150 to the defendant William F. Faraón, a son of the testatrix, and a lunatic. It is also alleged in the complaint that the assets of the testatrix were not sufficient to pay the plaintiff’s debt in addition to the expenses'of administration and debts of. a prior class ; also that the real property of the testatrix which ■descended to her heirs was not sufficient to pay the plaintiff’s debt, :and that the plaintiff could not collect her debt by an action against the heirs; that the value of the real estate devised' to the ■defendants was $16,500, and that the same had not been aliened by them at the time when the action was brought No personal judgment against the defendants is asked, but the relief prayed for is that such real estate shall be sold, and the plaintiff’s debt, with costs and disbursements, shall be paid out of the proceeds of ■such sale.

The defendants interposed answers which set up general denials, fraud in obtaining the notes, and the six years statute of limitations. The answer of the defendant Mary Ann Chambers .also contained a counterclaim for $1,040 for board alleged to have been furnished to the plaintiff, to which counterclaim "the plaintiff served a reply containing a general denial. Judgment was rendered by the special term, in which it was found that the amount due to the plaintiff, together with costs, rwas $2,001.25. 'The judgment also appointed a referee to sell the property and ■directed that the plaintiff's debt and costs should be paid out ■of the proceeds and apportioned among the several defendants according to their interests, to be computed and ascertained upon the principles of the Northampton Tables of Life Annuities; and from such judgment this appeal is taken.

Quite a number of objections to this judgment, and the proceedings upon the trial at special term, are raised by the counsel for the appellants. None of them seem to us of sufficient weight to justify a reversal of the judgment.

It is objected that there was no competent or sufficient proof that the three notes upon which the action was brought, or either ■of them, were, or was ever executed, signed or delivered by the testatrix. Upon the trial the plaintiff sought to prove the signature of the testatrix upon the notes by comparing such signatures with the signature which appeared upon a certain bond, which was put in evidence.

Counsel for the appellants claims that as the law stood at the time of the trial such comparison could not be allowed, because ■chap. 36, § 2 of the Laws of 1880, which first authorized such comparisons to be made, was, in effect, repealed by chap. 555 of the Laws of 1888, and the last named statute contained the following clause:

“ But nothing within contained shall affect or apply to any ■action or proceeding heretofore commenced or now pending.”

We think the learned counsel for the appellant, is mistaKen in his view as to the law applicable to this matter.

Chapter 555 of the Laws of 1*888 is entitled: “An act to amend, chap. 36 of the Laws of 1880, entitled an act to amend the laws-of evidence and practice on civil and criminal trials; ” and the first section thereof is as follows: “ Section 2 of chap. 36 of the-

Laws of 1880, entitled: , An act to amend the law of evidence, and practice on civil and criminal trials, is amended so as to read, as follows:’’

The second section contains said § 2, as originally enacted, with some slight amendments.

It has been settled for many years in this state that when the-legislature passes an act declaring that a previous act, or some part-of the same, shall be amended “so as to read as follows,” the earlier act is not deemed to have been repealed by the latter one. This precise point was decided by the court of appeals in the case of Ely v. Holton, 15 N. Y., 595; a part of the syllabus, which states-with accuracy the decision of the court, is as follows: “The effect-of an amendment of a statute made by enacting that the statute. ‘ is amended so as to read as follows,’ and then incorporating the-changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely copied without change are to be considered as having been repealed, and again re-enacted, nor that the new provisions or the changed portions should be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having continued the law from the time of its original enactment, and the new or changed-portion to have become the law only at and subsequent to the. passage of the amendment” In the case at bar, therefore, the provision of the act of 1880, which authorized the comparison of signatures, and which was re-enacted by the statute of 1888, was-in force at the time of the trial; and the clause in the act of 1888. which declared that nothing therein contained should affect or apply to any action theretofore commenced, or then pending, was-a mere saving clause, which prevented the amendments made by the act of 1888 from affecting or applying to any action previously brought The evidence objected to was therefore properly admitted,, and the objection is not well taken.

It is further objected that such evidence did not establish a sufficient standard with which to compare the signatures of the notes in question. Upon the triala witness, called bv the plaintiff’s-counsel, produced a bond and mortgage. The bond only appears to-have been put in evidence. The witness who produced these papers testified that he was an attorney in this state, and as the attorney of Mrs. S. E. Morgan he held a bond and mortgage given, by Louise F. Fardon to the Home Insurance Company; which were the ones produced by him in court; that he had the papers first about two years ago, and that they were still outstanding liens on the real property described in the complaint in this actiont and that the witness had gone to the insurance company with an assignment of the same. Mr. Coman, also called for the plaintiff, testified that he was an attorney, and was the subscribing witness to the bond, and that the name of the subscribing witness there was his own name and in his handwriting; that he saw that paper ■executed by Mrs. Louisa F. Fardon. He also testified as follows: “ I saw her sign it I know her. I searched the title and had to •do with the getting of this bond and mortgage from Mrs. Fardon to the Home Ins. Co. I had charge of it. * * * I connect Mrs. Fardon with some Rockland transaction in addition to this, but I cannot be more specific. * * *. I have no doubt that Louisa F. Fardon, who is the mortgagor in this instance, signed that in my presence.” It also appeared by the testimony that the ■ plaintiff was the sister, and that the defendant Mary Ann Chambers was the daughter of the testatrix; also that the plaintiff had :at one time lived with the testatrix and at another time with said •daughter; and that the testatrix with her husband had at one time lived upon the premises described in the complaint. We think that the evidence was sufficient to prove that Louisa F. Fardon, the testatrix, was the same Louisa F. Fardon who signed the bond, ■and that the signature to the bond was the signature of the testatrix ; and this established a sufficient basis for a comparison of the signature upon the bond with the signature upon the notes. Mr. Ames, an expert in handwriting, was called as a witness for' the plaintiff and testified in substance that the signature Lo.uisa .F. Fardon upon the notes was written by the same person who wrote the signature Louisa F. Fardon upon the bond.

Ho contradictory evidence was offered by defendants’ counsel, although the witness, Mary Ann Chambers, was called as a witness, and as she appears by her evidence to have been' an intelligent person, it may be fairly presumed that she was familiar with her own mother's signature; and it is therefore somewhat significant that no attempt was made to prove by her that the signatures upon the notes were not the genuine signatures of her mother. Moreover, another significant fact is, that when the plaintiff, the :sister of the testatrix, was on the stand she was asked this question : “ In whose handwriting is the signature, and in whose handwriting is the body of each of these three promissory notes which have been shown you ?” This question was objected to by the defendants’ counsel, and the objection was sustained. We think ■that the making of the notes was sustained by the evidence.

It is also insisted by the counsel for the defendants that there was no evidence that the notes in question or any of them were, ■or w£s, ever delivered to the plaintiff, or that the testatrix ever negotiated or knowingly parted with the said notes.

The plaintiff, against the objection of defendants’ counsel, testified upon the trial that the notes in suit had been in her possession prior to the month of December, 1880, when Mrs. Fardon •died, and were in her possession at the time of such death.

It is claimed that this was testimony in relation to a personal transaction with the deceased, and that, under § 829 of the Code, it was not competent. We do not think this objection is well' taken. In Simmons v. Havens, 101 N. Y., 433, it was said: Exception was also taken to the plaintiff being allowed to testify' that she had the deed iu her possession and that the signature was in the handwriting of her mother; she was not asked, and did not state from whom she received the deed, and her testimony as to the handwriting or the contents of the deed did not involve a personal transaction between her and her mother. The plaintiff might have received the deed from some third person.” Counsel for the defendants, in his brief, points out some particulars wherein the case of Simmons v. Havens differs from the case at bar. But the portion of the opinion above quoted is clear and explicit, and whatever differences between the cases may exist, we think that the decision in that case applies to and controls the case at bar. See also Taber v. Willets, 44 Hun, 346; 8 St. Rep., 825; Greer v. Greer, 20 Civil Pro., 75; 34 St. Rep., 448; Wing v. Bliss, 28 id., 198.

The evidence was competent and proved the delivery of the notes by the testatrix to the plaintiff before the death of the former.

It is also objected that there was no proof of any consideration for said notes, or any of them, or that they represented a debt of the testatrix. Counsel concedes that the production of the notes might have made a prima facie case against the maker, but claims that the production did not have such effect as against a legatee or devisee, and he cites in support of this proposition § 1843 of the Code; Gere v. Clarke, 6 Hill, 330-332, and Mersereau v. Ryerss, 3 N. Y., 261, 262, 263.

We have examined the statute and the authorities cited, but find nothing in them which sustains the view contended for. And in Carnright v. Gray, 57 Hun, 518; 33 St. Rep., 98, it was held that a non-negotiable note imported a consideration as against the executors of the deceased maker as well as the maker himself. If the question were a new one we should be inclined to adopt the views expressed by Learned, J., in the very able and exhaustive dissenting opinion which he wrote in that case, and held that a non-negotiable note does not import a consideration against anybody. But that case itself holds to the contrary, and there is other authority to the same effect. If such a note imports a consideration as against the maker thereof and his executors, we see no reason why it should not also import a consideration against the devisee, who, for the purposes of the action, stands in the place of the deceased maker of the note.

It is also objected that the Statute of Limitations had fully run as to all the notes in suit, at least as to the defendant William P. Pardon. The answer sets up the six years statute of limitations. The summons was served on the defendant Mary Ann Chambers on October 27th, 1886. The defendant William H. Chambers was not served, but appeared in the action on ¡November 13th, 1886. William P. 'Pardon was not originally made a party, but on August 8th, 1889, a supplemental summons and complaint were served, which brought him in as a party. The notes sued on are dated respectively May 1st, 1879, May 1st, 1880, and July 15th, 1880. The defendant Mary Ann Chambers was executrix of the testatrix’ will, and received her letters testamentary in February, 1881.

Under § 1844 of the Code, this action could not be maintained except three years had elapsed since such letters bad been granted,, and, under the provisions of § 406 of the Code, such three ye arsis not a part of the time limited for the commencement of the-action. The defendant’s counsel concedes, and it would seem to be clearly the law, that the statute did not run, under the circumstances of the case, until after the expiration of nine years from the date of the notes, and as the action was commenced against Mary A. and William F. Chambers in 1886, it is clear that, so far as they are concerned, the statute of limitations had not run. It appears, however, that the defendant Fardon was not served; until August 8, 1889, and if the nine years limitation applies to this case, the debt, had-outlawed as to him at the time said Fardon. was served. To meet this difficulty the counsel .for the plaintiff claims that the nine years limitation does not apply, but that the-case falls within the provisions of § 388 of the Code, which provides that any action, the limitation of which is not otherwise-specially prescribed in the Code, must be commenced within' tern years after the cause of action accrues.

The question presented is not -free from doubt, but the claim, made by the plaintiff’s counsel in this regard is sustained by authority. Precisely the same question was presented in Wood v-Wood, 26 Barb., 356, which was an action like the case at bar,, and in which the same relief was sought. Balcom, J., who delivered the opinion of the court, said: “ The basis of the action is a debt which Jacob Wood, deceased, owed the plaintiff, but that is not the gist of it. It is not an action for the recovery of money only, although the ultimate object of it is to obtain money. Nor is it one for the recovery of specific real property, for the plaintiffs cannot have the land described in the complaint as the-fruits of the litigation ; but it is an equitable action to reach certain real estate which Jacob Wood, deceased, devised to the defendants, and to authorize its sale for the purpose of satisfying a. debt that the deceased- owed the plaintiff. It is strictly an action. in rem, for no facts are set out in the complaint, and none were-established on the trial, to support a claim against the defendants-personally.

“ It was not a case for a jury, but the issues in it were triable by the court (citing authorities). In other words it is an action for-equitable relief, of which the supreme court bad not jurisdiction; prior to the enactment of the Code ” (citing authorities). “ It could therefore be commenced at any time within ten years after the cause of action accrued, either by the Revised Statutes or under the Code.” What is said by the learned judge about the nature of the action in that case applies to the case at bar. The-complaint does not ask for a personal judgment, against the defendants, and the only relief prayed for is that the property described in the complaint shall be sold, and the debt of the-plaintiff paid out of the proceeds. The decision in that case was-based upon the provisions of' the former Code. But there is no difference between the provisions of that Code and the Code of Civil Procedure which would call for a different decision in the-case at bar. "While it must be admitted that the question is not free from doubt, we think that as it has been squarely decided, after argument, by another general term of this court, we ought to follow such decision. The objection, therefore, that the action was not brought in time, as to the defendant "Pardon, must be overruled.

It is also objected that the want of assets was not properly proved. We do not think this objection was well taken, for it was clearly established by the evidence that the personal property amounted to very little, and that what little there was was expended in the payment of physicians’ bills, funeral expenses and other debts.

It is also claimed that the court erred in excluding evidence as to the counterclaim set up in the answer of the defendant Mrs. Chambers. We think, however, that the evidence was properly excluded. Under the provisions of § 1846 of the Code an action of this description must be brought jointly against all the devisees. There can be but one judgment in the action, and the provisions of § 1847, providing for the apportionment of damages and costs, does not render, the action one against the devisees severally, so as to enable a single defendant to interpose a counterclaim.

There can be no separate judgment between the plaintiff and the defendant Mary A. Chambers, and no recovery at all can be had against her individually. When the liability of the defendants is joint and not joint and several, and a joint judgment only can be recovered, a counterclaim in favor of one of the defendants only cannot be allowed. St. Michael's Church v. Behrens, 1 St. Rep., 627; 10 Civ. Pro., 181; Vanderbilt v. Baldwin, 15 Abb. N. C., 312. The plaintiff did not waive the objection that the counterclaim was not allowable by replying to it Smith v. Hall, 67 N.Y., 48; Carpenter v. Manhattan L. I. Co., 93 id., 552; Kiersted v. West, 13 W. Dig., 106. Moreover, as the action is an equitable one, to charge a debt upon the real estate by virtue of the provisions of the statute, and the counterclaim was on an alleged contract between the plaintiff and the defendant Mrs. Chambers, it does not seem to be one of the cases provided for in § 501 of the Code.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur in result  