p. 234ANN E. SMITH, Appellant, v. JOHN T. CORNELL, as Executor, &c., Respondent.Headnote
Order on demurrer not appealable.—Bond, general rule that persons not parties to a sealed instrument are not liable thereon, applicable thereto.An order sustaining or overruling a demurrer is not appealable. An interlocutory judgment must be entered.
Semble, a bond is one of those instruments to which the general rule that only the party named in and who executes a sealed instrument can be held liable thereon, applies.
As a bond is required to be under seal, which is an essential characteristic, the fact that the obligor might have, by an instrument not under seal, made a valid contract to pay the sum mentioned in its condition, does not bring it within the exception to the general rule, which exception covers only those sealed instruments which are not required to be under seal to give them the force and operation which their motive and character call for. Per Ingraham, J.
Before Sedgwick, Ch. J., and Ingraham, J.Appeal, as stated in the notice of appeal, from an order or interlocutory judgment entered at special term, sustaining the demurrer of the defendant to the plaintiff’s complaint.
The facts sufficiently appear in the opinion.
Stilwell & Swayne, attorneys, and Benjamin M. Stilwell, of counsel for appellant,
argued :—I. The assignment of the bond and mortgage by Charles Lanier to the plaintiff, carried with it, and transferred to her, the right
p. 235to the money advanced, and to secure which the bond and mortgage were given, and all claims against any person as collateral and incidental to it (Bolen v. Crosby, 49 N. Y. 187 ; Campbell v. Birch, 60 Ib. 218 ; Gerwig v. Setterly, 56 Ib. 214).
II. The bond and mortgage given to secure the loan were one instrument, and were in fact obligations of Gershom B. Smith, because he owned the property upon which the mortgage was given, and because he borrowed and received the money, and merely used the name of one of his clerks in the transaction, in order to defraud his wife of her dower, or the party loaning the money. These facts, if proved, are sufficient to maintain an action on the case against the defendant, to recover the money obtained by a fraudulent device ; and the proceeds of the fraud having come to the hands of the defendant as the executor of this fraudulent borrower, he ought in justice to pay the same.
III. There was no necessity for any seal to give validity to the transaction. A note would have been equally as valid and effectual as a bond. Upon the above facts, Smith, as the principal, may be made liable in assumpsit, upon the promise contained in the instrument, which may be resorted to, to ascertain the terms of the agreement, under the case of Briggs
v. Partridge, (
64 N. Y. 357 , and cases Cited on page 364).
A. J. McCullough, attorney, and Horace Secor, of counsel for respondent,
argued: The action is clearly brought to hold the estate of Smith liable on the bond executed by Gwyer, who was really acting on behalf of Smith, his undisclosed principal. It is true that where a parol contract is made by a person (whether oral or written), and that person is really acting on behalf of an undisclosed principal, the other party may hold such undisclosed principal liable upon the contract. But this rule does not apply to sealed instruments (Briggs v. Partridge, 7 J. & S. 339, affi’d 64 N. Y. 357 ; Kiersted v. O. & A
p. 236R. R. Co., 69 Ib. 343 ; Williams v. Gillies, 15 Ib. 197; Tuthill v. Wilson, 90 Ib. 493).
By the Court.
From the record as printed it does not appear that any interlocutory judgment was entered on the order of the special term sustaining the demurrer. All that appears is an order of the special term, entered January 4, 1886, sustaining the demurrer, and the appeal is from the order or interlocutory judgment entered herein. No interlocutory judgment is printed, and it does not appear that any was ever entered. It has been settled by repeated decisions that no appeal lies from an order sustaining or overruling a demurrer (Lovatt v. Watson, 52 Super. Ct. 544, and cases there cited). The record before us presents nothing for review, and for that reason the appeal must be dismissed with costs.
I am of the opinion that the order of the special tern), sustaining the demurrer was clearly right. The action is to recover a balance due on a bond and mortgage executed by one Gwyer to Charles Lanier, and assigned by Challes Lanier to the plaintiff. The bond was under seal. It is not alleged that any cause of action was assigned to the plaintiff, except the bond and mortgage given to secure the obligation of the bond. Neither the bond nor the mortgage was executed by the defendant’s testator, and he was not hable on the face of the instrument. The seal forbids any inquiry as to whether the obligor, in executing the bond, acted as agent for the defendant’s- testator (Simpson v. N. Y., &c. R. R. Co., 51 Super. Ct. 419, and cases there cited). The bond and mortgage being under seal, he cannot be held liable as an undisclosed principal. It cannot be said that the case comes within the exception stated in Simpson v. N. Y., &c. R. R. Co. (supra), that where the contract is one which is valid without a seal, and the seal is therefore of no account, an undisclosed principal can be held liable; because the bond itself is an instrument under seal, and, although
p. 237a contract to pay money would be valid without a seal, still it would not be a bond, and in order to make a valid bond, a seal is necessary (Supervisors of Livingston
v. White, 30
Barb. 78 ). For the reasons first stated, however, the appeal must be dismissed, with costs.
Sedgwick, Oh. J., concurred.