
    Supreme Court—General Term—Fifth Department.
    October, 1885.
    PEOPLE v. STEVENS.
    Laeobnt.
    A discharge of a mortgage complete in form, and bearing the signature of the mortgagee, and duly acknowledged, until delivered to some one by the maker for the uses and purposes therein expressed, is not effective or operative for any purpose, and is not personal property in the sense of that term as defined by statute (Penal Code, § 718, subd. 15), and cannot be subject of larceny.
    Appeal by Henry K. Stevens from a judgment of the Court of Sessions of Erie county, Hon. ¥i. W. Hammond, presiding, of April 8, 1885, convicting defendant of larceny in the first degree.
    Ella S. Comstock was the owner of a house and lot in the city of Buffalo, and she entered into an executory agreement. in writing, to sell and convey the same to the defendant. Upon this property there was a lien, by mortgage executed by Ella S. Comstock to one Sarah Comstock, to secure an indebtedness of $1,500, and the same was recorded in the Erie county clerk’s office. By the terms of the sale, the premises were to be conveyed to the defendant free of this incumbrance. Without paying the debt, the mortgagor procured to be placed in her hands by the mortgagee a discharge of the lien, to be used upon certain conditions. The words of discharge, after describing the mortgage, were as follows : “ Is paid, and I do ■ hereby consent that the same be discharged of record.”
    The mortgagee resided in this state, and the mortgagor in the state of Louisiana, and the latter, with a view of closing the transaction with defendant, placed in the hands of one Walker, the discharge and a deed of the premises ; thereupon he called upon the defendant, in the city of Buffalo, and before the deed was delivered, placed the discharge in the hands of the defendant, who caused the same to be placed on record. Before receiving a deed of the premises, the defendant,.without the consent of the owner, entered into possession of the premises. Misunderstandings and disagreements arising between the parties, several suits were commenced, in which the defendant and his vendor were parties. The evidence tended to prove, that the defendant was guilty of misstatements and false representations in procuring possession of the discharge from Walker, and that his actions were fraudulent, and that the act of placing the discharge on record was fraudulent, and against the wishes of the parties to the mortgage, and without the consent of Walker, the custodian of the same at the time it was delivered into the possession of the defendant.
    The act on which the charge of larceny was based, was for stealing the discharge, and in the indictment it was averred to he the property of Walker, and of the value of $1,500.
    Many exceptions were taken on the trial, by the defendant, which were sufficient to present the legal propositions discussed in the opinion.
    
      Joseph P. Garr, for defendant, appellant.
    
      Echo. W. Hatch, district attorney (George T. Quinby, assistant), for the people, respondent.
   Babkee, J.

The important and underlying question presented by the appeal is this, was the written instrument set forth in the indictment, called a discharge of the mortgage, the subject of larceny. It is conceded by the counsel for the people, that Sarah Comstock, the mortgagee, who executed the instrument, had not been paid the debt secured thereby7, and that she placed the discharge in the hands of the mortgagor, to be used by her upon the happening of certain conditions, and in exchange of certain other securities in lieu thereof. The prosecution was conducted upon the assumption that these facts were true, and the court submitted to the jury legal propositions, to be applied to them if they should so find the facts. The defendant acquired the possession of the instrument from the hands of Walker, the custodian, with his consent. The people claim that such actual possession by the defendant was acquired by means of deceit and false pretenses practiced upon Walker, with the intent to cheat and defraud the" mortgagee, and that the act of the defendant in thus securing possession of the discharge, and placing the same on record, was larceny as that offense is now defined.

It will simplify the question now under consideration, if we consider the case the same as if the defendant had taken the written instrument from the possession of the mortgagee vi et armis, and against her consent.

If such an act would not constitute larceny, for the reason that an undelivered instrument of this nature is not the subject of larceny, then very clearly it was not on the part of the defendant to acquire possession of the same from Walker, the custodian, by means of fraud and deceit practiced on him by the defendant. It is the general rule, that to constitute larceny of a written instrument, the paper must be effective and operative when taken. Was this instrument effective and operative for any purpose when the defendant acquired the possession 2 I think not. It had never been delivered, nor was it intended to be used for the purposes therein mentioned, until the performance of certain things thereafter to take place. The debt it was intended to secure remained unpaid. The possession of the paper by the defendant, and its record, did not, and could not in law, release the debt, nor discharge the land from the mortgage lien. Until the instrument was delivered to some one by the.maker, for the uses and purposes expressed therein, it possessed no value, and was not personal property in the sense and meaning of that term as defined by the statute. The instrument, although complete in form, and bearing the signature of the mortgagee, and duly acknowledged ready to be delivered and used according to its design, could not, while in this state, be the subject of larceny. People v. Loomis, 4 Denio, 380.

By the common law, larceny could only be committed of personal goods, mere movables having an intrinsic value. By the Penal Code, it is larceny to steal the personal property of another (§ 528). The same provisions existed in a former statute. The term personal property as here used, is defined to mean and include “ every description of money, goods, chattels, effects, evidence of rights in actions, and all written instruments by which any pecuniary obligation, right or title to property, real or personal, is created, acknowledged, transferred, increased, defeated, discharged or diminished, and every right and interest therein.” Penal Code, subd. 15, § 718. This definition of the term personal property is* only new in form, the various previous enactments on the subject having been simply collected and consolidated. 2 R. S. p. 702, § 33.

As no statute enlarging or changing the definition of personal property has been enacted since the decision of the People v. Loomis, that case stands as an authority, in construing the statute as it now upads. The new statute defining the crime of larceny has enumerated the kind of written instruments which may be subject of larceny, although they have not been issued or delivered for use as follows : “An instrument for the payment of money, and evidence of debt, and public security, or a passage ticket complete and ready to be issued or delivered, although the same lias never been issued or delivered by the maker thereof to any person as a purchaser or owner.” Penal Code, § 536. This provision does not embrace instruments intended to be used as a release of a debt, or a discharge of a mortgage lien. As such instruments are not included in the enumeration, it creates a strong presumption that it was not. the intention and purpose of the legislature, in creating and defining the offense of larceny, to embrace written instruments of this nature, which were not effective and operative at the time they were taken. If this instrument had been delivered, so as to be effective as a discharge of the mortgage, it then would be property in the hands of any person interested in the premises, and would be the subject of larceny if feloniously taken from the possession of a rightful owner. Then it would be personal property as defined by the statute already quoted.

The case of Phelps v. People (72 N. Y. 334), does not support the argument of the learned district-attorney. It was there held that the draft which was subject of the larceny, as charged in that case, was a legal operative instrument when it reached the hands of defendant. It has been held in this state, People v. Wylie (3 Hill, 194), that bank bills, complete in form, and ready for circulation, but not in fact issued, are the property of the bank, and may be the subject of larceny. The facts of the case were such as to form an exception to the general rule as it then existed as to unissued instruments. Bank bills, when stolen and in the possession of the thief, are as valuable to him as if the same had been issued and in circulation, and he has it in his power to ruin the bank by their use. Bank bills in that form pass from hand to hand like coin, and when stolen, the payee, to whom they are passed, takes a perfect title to the same. Although not put in circulation by the bank, they may be properly considered money in its hands, when complete in form and ready for circulation. The bona fide holder acquires a perfect title as against the bank, and as the bank has a title to the paper on which the instrument is printed, it is not unreasonable to hold as a matter of law as against the thief, that such bills in the hands of the bank are each of the value of their denominations. This, and nothing more, was decided in Wylie’s case.

The rule in that case is now incorporated in the statute. There was no rule of law laid down, nor any principle asserted in that case, which supports the argument that this instrument, when taken by the defendant, was operative and effective for any purpose. The judgment should be reversed, and as the discharge had not been delivered with a view of being effective and operative, the prisoner should be discharged.

Smith, P. J., and Beadley, J., concur.  