Rose v. Bell.

have directed the fact to be found according to the evidence, and order. ed an amendment of the complaint, without costs, under section 170 of the code.

CTION to recover the possession of real estate. On the

30th of March, 1852, the defendants executed and delivered to the plaintiff a mortgage on the premises in question, to secure the payment of $442.02. This mortgage was foreclosed, without serving any notice on the wife, and the premises were sold to the plaintiff in May, 1858, when he became the owner. On the 6th of September, 1858, while the defendant Philander F. Bell was still in possession and claiming to own the premises, the plaintiff made a written agreement with Sylvia Bell, the wife, without the knowledge or consent of her husband, by which he agreed to sell and convey the premises to her, on certain terms and conditions, and she agreed to purchase and pay for the same, and to keep the property insured, and pay all taxes. She was, at the time, a married woman, having no separate estate. Default having been made in the payment of the purchase money, this action was brought against Bell and his wife to recover the possession. Sylvia Bell, the wife, insisted, in her answer, that she was not a necessary or proper party to the action, and should not have been joined as such. The cause was tried at the Steuben circuit, in April, 1861, before Justice KNOX and a jury. The jury were directed to find a verdict against both defendants; and they found accordingly.

Geo. B. Bradley, for the plaintiff.

Clark Bell, for the defendant P. F. Bell.

D. Rumsey, for the defendant Sylvia Bell.

By the Court, JOHNSON, J. It is impossible for the plaintiff to maintain this action against the defendant Sylvia Bell, upon the undisputed facts of the case. She is the wife of

Rose v. Bell.

the other defendant, and lives with her husband, upon the premises in question, and has not, and never had, any separate estate. The contract, between her and the plaintiff, which was read in evidence, and by which she agreed to purchase the premises in question, and the plaintiff agreed to sell, and to convey to her, upon the payments being all made, is a mere nullity. It conferred no rights, and imposed no obligations upon either party. It was an attempt to deal with a married woman upon credit, in real estate, in the absence of her husband, and without his knowledge or consent, as is expressly shown by the evidence. The contract does not purport upon its face to have been made on behalf of the husband, by the wife, but entirely in her own separate right, as well as name. Indeed it is expressly alleged in the complaint that the defendants both entered into possession claiming in right of the wife.

All the disabilities of coverture, on the part of a married woman, are still in force, except such as have been removed by the legislature. The legislature have not yet gone quite to the extent of authorizing a married woman, especially if she has no separate estate, to purchase land upon credit. Indeed it is quite apparent that they never contemplated giving a married woman the power to speculate in real estate, upon her own credit, whether she had a separate estate or not. Even if the act of 1860 (Sess. Laws of 1860, ch. 90) could, as I think it cannot, be construed to confer such authority, this pretended contract was previous to that act, and can derive no aid from it.

It is unnecessary to cite authorities to show that, at common law, such a contract by a feme covert was entirely nugatory. The possession was, therefore, in law, the possession of the husband, and in no respect that of the wife. This being so, she was improperly joined in the action, and was, of course, entitled to a nonsuit, or to a verdict in her favor.

The question then arises, whether the action can be maintained against the husband, or must fail altogether. In ac

Rose v. Bell.

tions of this kind where there are several defendants, if the verdict be for the plaintiff it shall be against such of the defendants as were in possession of the premises, or as claimed title thereto at the commencement of the action. (2 R. S. 307, § 30.) It appears from the evidence that Philander F. Bell, the husband, was in possession, at the commencement of the action, claiming in his own right.

A nonsuit was claimed on behalf of the husband upon the ground that the complaint alleged that he was in possession claiming in right of his wife, whereas it appeared by the evidence that he was in possession claiming in his own right. This presents a question of mere variance between the pleadings and the evidence. The plaintiff makes out a clear title to the premises, derived from the defendants, and there can be no doubt that the husband was in possession wrongfully at the commencement of the action. This variance is in no respect material in regard to the merits of the action, as far as the husband is concerned, and there is no pretense that he was, or could have been, misled to his prejudice. It was a case, therefore, in which the court might have directed the fact to be found according to the evidence, and ordered an immediate amendment of the complaint, without costs, under § 170 of the code. As a joint verdict however was ordered, which was excepted to, there must, for aught I can see, be a new trial, which is ordered; costs to abide the event.

[MONROE GENERAL TERM, September 1, 1862. Johnson, Welles and J. C. Smith, Justices.]

COLTON VS. BEARDSLEY, BIGELOW and SPOONER.

Proof that an individual is reputed to be, and and has acted, notoriously, as a public officer, is prima facie evidence of his official character, without producing his appointment.

This exception to the general rule requiring the best evidence to be given, is founded upon the strong presumption that arises from the exercise of a public office, that the appointment to it is valid; and is made for the reason that it would be attended with general inconvenience to require full and strict proof of the appointment or election of public officers.

In an action against a person for an act which he had no right to do unless an officer, he must show that he was prima facie an officer de jure. Proof of acting as such under color of authority, and of reputation, is admissible evidence for that purpose; and if proved, is sufficient, in a collateral proceeding, to establish that character. POTTER, J. dissented.

The uniform practice of the courts has been to admit proof that officers have been reputed to be and have acted as such, in cases where they have been sued for their official acts and have sought to justify their acts as incumbents of the office. Per ROSEKRANS, J.

Proof of a call by the trustees of a school district, for a special meeting of the inhabitants, for the purpose of filling vacancies in the office of trustee, of the assembling of the inhabitants under that call, the election of two persons as trustees to fill vacancies, and of their acceptance by entering upon the duties of the office, is proof of an election by the competent authority, and constitutes the persons thus elected, prima facie, trustees de jure.

To defeat such prima facie title to the office, a party attacking it cannot be allowed to give evidence showing that no vacancy in the office of trustee existed when the persons were chosen.

The authority to call a special meeting to fill a vacancy in the office of trustee being vested in the remaining trustees, and the power to fill it, in the meeting when assembled under such call, the act of the trustees in calling the meeting, and of the meeting in filling the vacancy, are quasi judicial acts; inasmuch as both the trustees and the meeting must first have exercised their judgment and discretion, and determined and adjudged that a vacancy existed.

Hence, whether there was, or was not, a vacancy in fact, and if there was, whether it had existed for over one month before the election; and if it had, whether it arose from a cause which authorized it to be filled by the supervisor of the town, is wholly immaterial, in an action against the persons elected, for an act done by them as trustees; because they are not questions which can be traversed in such action.

Matters of that nature can only be traversed in a direct proceeding to set

aside or quash the election. Until the election be so set aside or quashed

Colton v. Beardsley.

by such a proceeding, the persons claiming to be elected are protected for all acts done by virtue of the office held under color of such election. When the jurisdiction of an inferior tribunal depends upon a fact which such tribunal is required to ascertain and determine by its decision, such decision is final until reversed in a direct proceeding for that purpose.

The test of jurisdiction, in such cases, is whether the tribunal has power to enter upon the inquiry, and not whether its conclusions in the course of it were right or wrong.

Where an individual is present at a special meeting of the inhabitants of a school district, called for the purpose of filling vacancies in the office of trustee, remains silent when the office is being filled as vacant, makes no objection when it is filled, and without objection sees the persons elected enter upon the duties and assume responsibilities in said office, he himself neglecting to act as trustee, he will be held estopped from denying the title of the persons so elected to the office, on the ground that, he himself being a trustee, at the time, there was no vacancy to be filled.

A general non-performance of the duties of an office is a refusal to serve. A refusal to serve may be as clearly and strongly inferred from the acts of an incumbent as from a direct assertion that he will not discharge the duties of the office.

Thus where a trustee of a school district had not done any business, as such, for some time previous to a special meeting called for the purpose of filling a vacancy in the office, and he attended such meeting and witnessed the election of another as his successor, without making any objection; Held that a virtual refusal to serve was clearly shown.

The insertion of an improper item in a tax warrant issued by the trustees of a school district will not vitiate the warrant, if otherwise valid, or render the trustees liable in trespass. The warrant is void for the excess, only, and the trustees personally liable in an action to recover back any part of such excess paid or collected. But an action to recover the value of the property sold on the warrant cannot be sustained. Where a warrant issued for the collection of a second assessment was the same paper that had been used to collect a former assessment, with the exception that the first assessment had been detached from the warrant, the date of the warrant altered, and the second assessment attached to it; and the warrant thus altered was, with the second assessment, delivered to the collector; Held that there was nothing in this proceeding that operated to vitiate the warrant; it being, for all practical purposes; and in legal effect, a new warrant.

When a school district has no site for a school house, the trustees are authorized by the statute to fix one; but when a school house shall have been built or purchased, the site shall not be changed, without the supervisor's consent. In such case two things are requisite, to effect a change; the consent of the supervisor, and the vote of the district; and it matters not which has the precedence.