and 146 New York State Reporter

and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception. It is urged that the malice referred to in the exception is malice towards the individual personally, such as is meant, for instance, in a statute for maliciously injuring or destroying property or for malicious mischief, where mere intentional injury, without special malice towards the individual, has been held by some courts not to be sufficient. Com. v. Williams, 110 Mass. 401. We are not inclined to place such a narrow construction upon the language of the exception. We do not think the language used was intended to limit the exception in any such way. It was an honest debtor, and not a malicious wrongdoer, that was to be discharged."

There are doubtless many torts against which a discharge in bankruptcy is effective. The act is liberally construed in favor of an honest and well-meaning debtor. A conversion of property may exist entirely consistent with the utmost good faith on the part of the converting debtor. In respect to such torts there is no injustice or inequity in extending the provisions of the bankrupt act applicable thereto in accordance with the beneficent and humane policy of such act. But a conversion which shows a design or willingness to inflict a wrong upon another, or the reckless disregard of the rights of another, rests on a different basis. In Matter of Bullis, 68 App. Div. 518, 73 N. Y. Supp. 1047, cited with approval in Crawford v. Burke, supra, it is said:

"The statute is to be construed liberally, to discharge the insolvent from the burden of the obligations which he is unable to pay in full; but that liberality may not be extended to an insolvent to release him from a judgment which was recovered against him by reason of his 'positive fraud' and 'intentional wrong,' whatever may have been the form of the action in which the recovery was had. The primary purpose of the statute is to enable an insolvent debtor to be relieved from the burden of his obligations. One exception that has pervaded all of our bankrupt laws is that, where the insolvent has become liable for the payment of a debt which had its origin in his own positive dishonesty, the way is not open for his discharge from that liability."

While the complaint herein does not show the circumstances of the alleged conversion, and therefore the willful or malicious character of the defendant's acts cannot be determined therefrom, yet the affidavit used on the motion supplements those allegations, and shows that almost immediately after the defendants came into possession of this property they began to sell it to different parties, and continued to make such sales from time to time without plaintiff's knowledge after they had realized more than sufficient to pay the amount due them from plaintiff, and applied the avails to their own purposes. Resort may be had to the entire record to determine the character of the wrongful acts. Matter of Bullis, 68 App. Div. 518, 73 N. Y. Supp. 1047; Colwell v. Tinker, 169 N. Y. 531, 537, 62 N. E. 668, 58 L. R. A. 765, 98 Am. St. Rep. 587; Palmer v. Hussey, 87 N. Y. 303. No explanation or justification of the alleged wrongful acts is proffered. The defendants, in utter disregard of the rights of plaintiff, knowing they were injuring him, and willing to do so in order to subserve their own wrongful purposes, converted his property. In short, the acts disclosed constituted larceny. There is neither reason nor justice in extending to such acts the protection of the bankruptcy act, unless we are clearly required to do so by its provisions. One of the purposes

which Congress probably had in view in making the amendment of 1903 referred to was to except from the benefits of the act just such conduct as is here disclosed on the part of the defendants.

Appellant cites with much confidence the case of Matter of Floyd Crawford & Co., 15 Am. Bankr. R. 277. That case is essentially different on the facts. There was no moral turpitude involved or intent to inflict wrong on another. The case recognizes the distinction, and by implication lends support to plaintiff's position here. The commissioner in his report said:

"There is no moral turpitude or intentional wrong disclosed here by the evidence, as, for instance, embezzlement or misappropriation, which must exist to bring the liability' within the exception of debts which are released by a discharge in bankruptcy. Implied fraud or fraud in law, which may exist without the implication of bad faith or immorality, is not sufficient. To recapitulate, the evidence having failed to disclose any willful and malicious injury to the plaintiff or her property, I conclude that this debt is not a liability embraced within the foregoing exceptions."

While the question is novel, and not free from doubt, I am of the opinion that for the reasons heretofore stated the order should be affirmed, with $10 costs and disbursements. All concur.

GREEN et al. v. HORN.

(Supreme Court, Appellate Division, Third Department. November 11, 1908.) 1. ADVERSE POSSESSION (§ 114*)-EVIDENCE-SUFFICIENCY.

Evidence held to authorize the jury to find that one held premises under a title by adverse possession.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 682690; Dec. Dig. § 114.*]

2. ADVERSE POSSESSION (§ 31*)-TITLE BY ADVERSE POSSESSION-ELEMENTS. To perfect title by adverse possession, it is not necessary that the true owner should have had actual notice or that the claimant should have asserted in public, in so many words, his claim of ownership, and a claim of title may be made by acts as well as assertions.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. § 129; Dec. Dig. § 31.*]

3. DEEDS (§ 115*)-CONSTRUCtion—DescripTION OF PROPERTY CONVEYED.

A deed conveying a part of a tract described the starting point of the first line as a point on the west line of a certain plank road. The third line extended to the plank road. The deed gave courses and distances. The undisputed evidence of a surveyor showed that the fourth and last course would include property to the plank road. Held that, notwithstanding mistakes in courses and distances, the description was sufficient to convey to the plank road.

[Ed. Note. For other cases, see Deeds, Cent. Dig. § 325; Dec. Dig. § 115.*]

4 BOUNDARIES (§ 3*)- DESCRIPTION - CONFLICTING ELEMENTS-COURSES AND DISTANCES.

The presumption is that all grants are made with reference to an actual view of the premises, and courses and distances and quantities must yield to natural or artificial monuments.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. § 6-19; Dec. Dig. § 3.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 112 N.Y.S.-63

and 146 New York State Reporter

5. ADVERSE POSSESSION (8 71*)-Color of TITLE.

Where a deed described the lands entered on by the purchaser, his possession was adverse, under color of title, however groundless the title.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. § 417423; Dec. Dig. § 71.*]

6. CHAMPERTY AND MAINTENANCE (§ 7*) — CONVEYANCE OF LANDS HELD AD

VERSELY.

Under Real Property Law (Laws 1896, p. 603, c. 547) § 225, providing that a grant of real property in the actual possession of a person claiming under a title adverse to the grantor is void, a deed conveying land in the adverse possession of another under a deed to him is void as against him.

[Ed. Note. For other cases, see Champerty and Maintenance, Cent. Dig. $$ 54, 55; Dec. Dig. § 7.*]

Appeal from Trial Term, Warren County.

Action by James Green and others against Charles F. W. Horn. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed.

The action was brought to recover two parcels of land, described in the complaint. The defendant by his answer denied that he was in possession of the first parcel. He admitted that he was in possession of the other, but denied that the plaintiffs were the owners, and alleged that he was; that he and his grantors had held adversely under color of title, claiming the property as their own, for more than 23 years before the commencement of the action. He also alleged that the conveyance under which the plaintiffs claim is void, because he was in the actual possession of the premises, claiming under a title adverse to the grantor, at the time of the delivery thereof. This action was commenced October 20, 1905, and has been twice tried. On the first trial the verdict of the jury was against the plaintiffs, and the judgment entered thereon was affirmed by this court on the 14th day of March, 1908 The judgment was vacated and a new trial granted upon application of the plaintiffs, under section 1525 of the Code of Civil Procedure. On the second trial the defendant asked to go to the jury "on the question of adverse possession, and whether the deed to plaintiffs is void under the champerty act, because defendant was in possession of the property claiming adversely at the time plaintiffs took the deed." The request was refused, and the defendant excepted. The court thereupon directed a verdict in favor of the plaintiffs for the possession of the property.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Charles M. Parsons, for appellant.

J. A. Kellogg, for respondents.

SEWELL, J. The parties to this action claim title through one William Caldwell, who died May 1, 1848, possessed of a large tract of land, of which the lot in dispute was a part. By a codicil to his will he devised an undivided one-third to Eliza McGillis, during life, with remainder to her children. The undivided two-thirds he gave to Helen Louisa Parmelee and Catherine E. Van Cortlandt. In August, 1851, an action of this tract was commenced, and an interlocutory judgment, directing partition and designating commissioners to make the partition, was duly entered. The commissioners made partition by dividing the property into two parcels, one of which, known as "Lot 20 of the Garrison Ground," containing 56 acres, was allotted to Eliza

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

McGillis for and during her life, and the other parcel, known as "Fort William Henry Field," was set off to Catherine E. Van Cortlandt and Helen Louise Parmelee to be held by them in common. The commissioners made a report of their proceedings August 31, 1852, and an order confirming the report and directing final judgment was entered. The dividing line between the two parcels was the east line of lot 20. This line commenced at a point 34 feet west of the west line of the Glens Falls and Lake George plank road, and ran in a southerly direction to the southeast corner of lot 20, which was 60 feet or more west of the plank road. The land in dispute is known as the "Waldorf," and is a part of the space or gore between the east line of lot 20 and the plank road. On December 24, 1881, Eliza McGillis executed and delivered to Elizabeth G. Horn, the mother of the defendant, a quitclaim deed in which she purported to convey

"all that piece or parcel of land, situate, lying and being in the town of Caldwell, Warren Co., State of New York, being portion of lot twenty (20) Garrison Ground, beginning at southeast corner of Steam Mill Lot at a point in the west line of the Glens Falls and Lake George Plank Road, being north 61 degrees and 31 minutes west from the center of a culvert under said plank road, and running thence west of north five (5) chains thirteen (13) links to the east line of Dieskan street; thence south three (3) degrees west along the street five (5) chains twenty-five (25) links; thence north eighty-six (86) degrees east four (4) chains twenty-five (25) links to Plank Road; thence north twenty-eight (28) degrees thirty (30) minutes east two (2) chains fifty (50) links, containing one (1) acre twenty-five (25) rods more or less."

This deed was recorded in Warren county clerk's office December 24, 1881. The defendant claims that it embraces the premises in question. January 8, 1902, Elizabeth G. Horn by warranty deed conveyed the same premises, by similar description, to the defendant, and the deed was recorded April 17, 1902. The plaintiffs claim title through a quitclaim deed from the devisees, named in the wills of Helen Louisa Parmelee and Catherine E. Van Cortlandt, made February 1, 1905, which includes the land in dispute.

In disposing of the plaintiffs' motion for a direction of a verdict, the learned trial court said:

"I find nothing here to justify me or the jury in finding that this possession by defendant was adverse; and I do not think it necessary to send the question of possession to the jury, because I regard the possession as peaceable and not adverse."

Assuming that the claim of the defendant and his grantor was not founded upon a written instrument, I am of the opinion that there was evidence that they claimed to hold the premises adversely.

The witness Morris Stanton testified, "I do not remember when Mrs. Horn bought there; I remember her claiming ownership there," and the proof shows many facts and circumstances attending the possession from which a jury might properly conclude that it was adverse. It is unnecessary to recapitulate these facts or circumstances in detail. It is sufficient to say that the evidence on the part of the defendant tends to show that the defendant grantor entered into the actual possession in 1881, when she received her deed, and thereafter occupied and exercised acts of ownership over it; that her possession was definite, positive, visible, and notorious; that she protected it with a

and 146 New York State Reporter

real and substantial inclosure, cultivated it, improved it, and received all the rents and profits. Her dominion was shown by a great many acts that an owner would exercise over his own property, but not over another's. The building of the fence, the removal of one building and the erection of another, were significant acts of adverse possession, and were well calculated to inform the owner both of the fact of possession and the claim of title.

To perfect title by adverse possession it is not necessary that the true owner should have had actual notice, or that the claimant should have assented in public in so many words his claim or ownership. A claim of title may be made by acts as well as assertions. New York Cent. & H. R. R. R. Co. v. Brennan, 12 App. Div. 103, 42 N. Y. Supp. 529; Barnes v. Light, 116 N. Y. 34, 22 N. E. 441. In the Barnes Case it was said that "possession, accompanied by the usual acts of ownership, is presumed to be adverse until shown to be subservient to the title of another." However that may be, I think that the premises in controversy are included in the deeds under which the title was claimed,

The description is clear and explicit. The starting point of the first line is a point in the west line of the Glens Falls & Lake George Plank Road, the third line extends to the plank road, and it appeared by the undisputed evidence of the plaintiffs' surveyor that the fourth and last course "would include the property in the gore and more too." Taking into consideration the entire description, I think the conclusion is warranted that the grantor intended to convey to the plank road. The fact that there was a mistake in a course or distance is immaterial, as the legal presumption is that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto, as to its state and condition at the time; that courses and distances and quantities must yield to natural or artificial monuments or objects; and courses must be varied and distances varied so as to conform to the natural or ascertainable objects or bounds called for by the grant. Wendell v. People, 8 Wend. 183, 22 Am. Dec. 635.

If I am right in the conclusion that the lines given in the deed describe the lands in dispute, and the original entry was under it, the possession was adverse, however groundless the title. De St. Laurent v. Gescheidt, 18 App. Div. 121, 45 N. Y. Supp. 730; Munro v. Merchant, 28 N. Y. 9; Sands v. Hughes, 53 N. Y. 287. In the Munro Case it was held that a deed purporting to be executed by virtue of a power of attorney, which was not proved, affords sufficient color of title on which to found adverse possession under the statute.

There was also evidence which would have warranted the jury in finding that the deed to the plaintiffs was void. If the defendant was in adverse possession under his deed, when they recorded their deed of the premises, it was absolutely void as against the defendant (Real) Property Law [Laws 1896, p. 603, c. 547] § 225; Arents v. Long Island R. R., 156 N. Y. 1, 50 N. E. 422; Dever v. Hagerty, 169 N. Y. 481, 62 N. E. 586), and whether or not the defendant was in actual possession, holding adversely under his title at the time the subsequent deed was made, was a question of fact for the jury.