
    Asa Willis v. John Orser, Sheriff.
    The complaint stated that on the 15th of November, 1854, the plaintiff was the owner, as mortgagee, of certain articles of merchandise particularly described, and that these articles on the 14th of December, in the same year, were in the possession of, and in a store occupied by the mortgagor, W. B. Willis; that the sum secured to be paid by the mortgage was payable on demand, and that prior to the 14th of December, its payment was demanded and refused; the plaintiff on the trial offered to prove that the possession of the merchandise was in fact changed, on the 15th of November, by its delivery to him on that day, but the court were of opinion that the variance between the proof so offered and the allegations in the complaint, was material, and, therefore, excluded the evidence.
    
      Held, that there was a reasonable interpretation of the allegations in the conu plaint, by which the supposed variance would have been wholly removed, and that this interpretation ought to have been adopted on the trial; consequently that the proof offered ought not to have been excluded.
    
      Held, that under § 169 of the Code, the alleged variance ought not to have been deemed material, since it did not appear that the defendant had been actually misled to his prejudice, in maintaining his defence, and there was no affidavit to that effect.
    
      
      Meld, that upon the evidence in the case, the court had no right to consider the question, whether the mortgage to the plaintiff was fraudulent or not.
    New trial ordered, costs to abide the event.
    (Before Duer, Bosworth and Woodruff, J.J.)
    Heard, December 4;
    decided, February 14, 1857.
    Motion on behalf of the plaintiff for a new trial, upon a case containing exceptions that were directed to be heard, in the first instance at General Term.
    The action was brought to recover damages for an alleged wrongful seizure and sale by the defendant, under order of his office as sheriff, of certain goods and merchandise belonging to the plaintiff.
    The complaint stated that the plaintiff on or about November 15th, 1854, became the owner of certain goods and merchandise, particularly described, by virtue of a mortgage upon the same, for $1000, bearing date on the same 15th day of November, 1854, and on that day, made, executed, and delivered to the plaintiff, by one Wm. B. Willis; that the same mortgage was duly filed, and that the said articles of merchandise were in the possession of, and situated in the store occupied by Wm. B. Willis, in Spring street, in the city of New York, until on or about the 14th day of December, 1854; that the sum of money aforesaid was payable, by the terms of the mortgage, to the plaintiff upon demand, and that prior to the said 14th day of December, its payment had been demanded by the plaintiff and refused; that the defendant on or about the 14th day of December, then being sheriff of the city and county of New York, by virtue and under color of his office, forcibly and wrongfully took possession of the said goods and merchandise, and wrongfully sold and disposed of the same, although forbidden by the plaintiff, and having notice at the time of the plaintiff’s title as mortgagee and owner, and that the said goods and merchandise, were of the value of $1000, for which sum, with interest and costs, the complaint demanded judgment.
    The answer of the defendant, after denying specifically the allegations of the complaint, sets up as a separate defence, that the goods in question were rightfully seized and sold by the defendant as sheriff, under and by virtue of certain executions against W. B. Willis; that the same were then in the possession of the said Willis, and were his property, or that he, Willis, had an interest therein, liable to a levy and sale on an execution against him.
    The case was tried upon the issues made by the pleadings before Slosson, J., and a jury, at a trial term in December, 1855.
    Upon the trial, the mortgage to the plaintiff was produced and read, and its execution, delivery, and consideration proved. The mortgage was conditioned to be void if the mortgagor should pay to the mortgagee, his executors, etc., on demand, the full sum of $1000; and the mortgage also contained a provision, that, in case default should be made in the payment of the said sum, it should be lawful for the mortgagee, his executors, etc., to take and carry away the goods and chattels mortgaged, and to sell and dispose of the same.
    The plaintiff then offered to prove by Wm. B. Willis, that the possession of the property contained in the mortgage was changed from the witness to the plaintiff, on the 15th of November, 1854, the day on which the mortgage was executed. The defendant’s counsel objected to this testimony on the ground that it was in conflict with the allegation in the complaint, that the property was in the possession of Wm. B. Willis until on or about the 14th day of December, 1854. The court excluded the evidence, and the plaintiff’s counsel excepted to the decision.
    The counsel for the plaintiff then offered to put to the witness several distinct questions, all of which were overruled by the court upon the ground that the -object in each was to show that there was a change of possession on the 15th-of November. In each case .the plaintiff’s counsel excepted to the ruling of the court. The answer of the witness, to the questions proposed, would have shown the nature and character of his own possession from the 15th of November until the 14th of December.
    The counsel for the plaintiff then moved to amend the complaint by inserting an allegation, under which the evidence excluded would have been plainly admissible. The motion was denied, and the counsel excepted. No further proof being offered on the part of the plaintiff, the defendant offered to prove the judgments and executions set forth in his answer, but the Judge held the proof to be unnecessary, and upon the motion of the defendant’s counsel, dismissed the complaint with costs, directing the exceptions to be heard in the first instance at General Term.
    
      
      J. Graham., for the plaintiff,
    was now heard in support of the exceptions, and a motion for a new trial. He contended that there was no contradiction between the proof offered and excluded, and the allegations of the complaint; and that if there wás any variance, the amendment for which he had moved .ought to have been allowed, as there was no affidavit that the defendant was actually misled.
    
      E. W. Stoughton, for the defendant,
    insisted that the variance between the evidence excluded and the allegations in the complaint was certain and fatal, and that as the evidence, if admitted, would have changed materially the issues made by the pleadings, the Judge upon the trial, even under the liberal provisions of the Code, had no power to grant the amendment that was desired.
    The counsel also insisted, that it sufficiently appeared, from the evidence in the case, that the mortgage to the plaintiff was fraudulent and void.
   By the Court. Duer, J.

It is difficult to understand upon what ground the complaint was dismissed. In proving the execution, delivery, and consideration of the mortgage, it seems to us the plaintiff had given all the proof that in the first instance would be required to entitle him to recover. There is no pretence for saying that the mortgage was fraudulent on its face, and whether it was rendered so by the continuance in possession of the mortgagor, was a question of fact for the determination of the jury. Still, as it does not appear from the case, that there were any exceptions to the charge of the Judge on the trial, we have probably no right to place our decision upon the ground that has been stated, especially as this ground was not insisted upon by the counsel for the plaintiff upon the argument before us.

We proceed, then, to the main question actually raised by the exceptions on the trial, and to which the argument of the plaintiff’s counsel was confined, namely, whether the additional proof that was offered, on the part of the plaintiff, ought to have been excluded ? and, after much consideration, we are satisfied that the proof ought to have been admitted. We are satisfied that if admitted, so far from contradicting, it would have been entirely consistent with the allegations in the complaint reading-those allegations in their proper connection, and giving to them a fair and reasonable interpretation. The complaint avers that the plaintiff, on the 15th of November, was the owner of the property mortgaged, and the averment may well be construed to mean that he was, on that day, the absolute owner. Hence, the averment that follows, that Willis, the mortgagor, was in possession of the property from the date of the mortgage until the 14th of December, the day on which the sheriff made the levy, to render it consistent with the previous averment, may very properly be understood as referring to a possession in consistency with, and in subordination to, that of the plaintiff as owner. In other words, that his possession was merely that of a bailee, or agent, of the plaintiff. The proof that such was the true character of his possession, might very properly have been admitted, under the offer that was made, and the questions that were proposed. And had it been proved, upon the trial, that payment of the mortgage debt had been demanded, and refused, on the 15th of November; that the goods, etc., mortgaged were then delivered to the plaintiff as owner, and that he had placed the mortgagor in possession, as his agent for the sale of the goods, and that all the subsequent sales were on his account, we hold that it would be impossible to say that the proof would not have been consistent with the very words of the complaint; and it is equally clear that it would have entitled the plaintiff to recover, unless the defendant had then proved that the mortgage was fraudulent. Such, however, might have been the purport of. the evidence that was offered to be given, and which the Judge excluded.

Again, the complaint avers that the payment of the mortgage debt was demanded by the plaintiff, and refused by the defendant, prior to the 14th of December, and we see no reason to doubt that, under this averment, and the offer made on the trial, the plaintiff might have shown that the demand and refusal of the payment of the debt were, in fact, made on the 15th of November. Had this proof been admitted, it would have shown that, from that day, the right of the mortgagor to retain the possession of the property wholly ceased, and, consequently, from that day he had no longer any interest in the property that could properly be made the subject of a levy or sale, under an execution against him. Hence, the proof would have shown that the defendant, in making such levy and sale, was a mere trespasser, and, as such, necessarily liable to the plaintiff for the value of the property levied on and sold. It would, therefore, have thrown on the defendant the burden of justifying his acts, by proving the defence set up in his answer, and this he could only have done, by showing that the mortgage, as against the execution creditors, was fraudulent and void. It follows, we think, from these observations, that the supposed variance between the proof that was excluded and the allegations in the complaint, which, if it existed at all, was purely literal, might justly have been deemed immaterial, as the case stood when the evidence was offered. The plaintiff had proved all that he was bound to prove, in order to maintain his action, so that the only issue that remained to be tried, was that of the validity of the defence set up in the answer and the burden of proving, which rested solely on the defendant. It does not appear, nor can we understand how, the reception of the evidence that was excluded could here have misled the defendant to his prejudice in maintaining his defence, and no proof that he was so misled was given or offered. (Code, § 169.) We cannot assent to the allegation that the reception of the evidence would have changed materially the issues made by the pleadings. The continuance in possession of the mortgagor, even upon the supposition that it was as mortgagor that he retained the possession, was consistent with the terms of the mortgage, and, therefore, raised no presumption of fraud upon which the plaintiff could insist, or the plaintiff be called on to repel.

The learned counsel for the defendant strenuously insisted, that the dismissal of the complaint by the court, on the trial, ought to be sustained, upon the ground that it sufficiently appears, from the evidence given, that the mortgage to the plaintiff was fraudulent and void, but we are very clearly of opinion that this is not a question that can now be entertained; the mortgage was certainly valid as between the parties, and it escaped the attention of the counsel that when the complaint was dismissed there was no proof that there was any creditor of the mortgagor by whom the validity of the transaction could rightfully be questioned. In saying this we are not to be considered as intimating that the evidence which appears in the case was sufficient to raise even a presumption of fraud. Whether the continued possession of the mortgagor was of such a character as to warrant this presumption, and whether the presumption, if raised, is repelled'by evidence of the good faith of the parties, are questions of fact which, upon a second trial, it will belong to the jury alone to determine Assuredly they are not questions which we, as a court, have any right to entertain and decide. (Howland v. Willet, 3 Sand. S. C. R. 607; Stuart v. Slater, ante p. 83.)

There must be a new trial, with costs to abide the event.  