majority">Grover, J.

None of the exceptions taken by defendant’s counsel to the rulings of the referee upon the competency of evidence were insisted on upon the argument. I have examined these exceptions and find none of them tenable.

There was evidence given tending to sustain the finding of the referee, that David D. Marvin, at the time he signed his name to the instrument purporting to be an assignment of the mortgage, was- of unsound mind, and incapable of executing a legal instrument. This finding of fact is, therefore, conclusive upon this court in this case.

It follows that such instrument is void, unless made *353valid by some other fact in the case. (Haveland agt. Hayes, (37 N. Y., 25.) The counsel insists that the assignment, although void when executed by Marvin, because valid by reason of Mrs. Fanning’s (Marvin’s then wife) agency in conducting and managing the affiars of her husband, and in procuring the execution of the instrument by him. It is a sufficient answer to this position, that a person mentally in capable of transacting business cannot appoint an agent to transact it for him, and that the act of the agent appointed, by such person would' be equally void. Besides, Mrs. Fanning never assumed to act as agent for her husband in respect to the assignment of the mortgage in question.

The counsel for the appellant excepted to the refusal of the referee to find as a fact, that Mrs. Fanning, after she became administratrix of her husband’s (Mr. Marvin,) estate, ratified the assignment of the bond and mortgage by her acquiescence therein from her appointment, in January, 1853, to the 1st of September, 1865, and also by her receiving one thousand dollars on account of such assignment.

It may be assumed, and such is, I think, the law, that an exception taken to the refusal of a referee to find a fact material to the rights of the party established by unconflicting proof is available in this court, as such refusal would be an error of law. Testing the exception by this rule, it is manifest that if no title to the mortgage was conveyed by the assignment in the lifetime of Mr. Marvin, such title could not be conveyed by any delay of his personal, representatives after his death in asserting their right thereto; such delay might, if sufficiently long, bar the remedy by the operation of the statute of limitations, but this would be its only effect. The delay was therefore, immaterial. The evidence as to whether Mrs. Fanning, either before or after she became administratrix, ever received anything on account of the assignment of the mortgage was conflicting, and the- refusal of the referee to find that she had received anything on account thereof, after she became administratrix, was justified *354upon this ground. The exception was, therefore, not well taken. The evidence tending to establish that Mrs. Fanning, while administratrix, ratified the assignment by receiving money on account thereof, must be disregarded by this court, as the fact was not proved to the satisfaction of either the referee or the supreme court. It follows that the assignment was not rendered valid by any other fact occurring, either before or after the death of Marvin, and that the ownership continued in him to the time of his death, and then vested in his personal representatives.

It is insisted by the counsel for the appellant, that the defendant’s testator purchased the mortgage from Anthon in good faith, and that Anthon, having an apparent valid title by virtue of the assignment, the testator by such purchase acquired a valid title. Conceding the fact, the legal conclusion does not follow. The law is well settled that a purchaser of choses in action, other than such as, by the law-merchant, are negotiable, acquires no better title than that of his vendor. (Blydenburgh agt. Thayer, and cases cited.) The title of the testator was, therefore, no better than that of Miss Whittlesey, whose name was inserted as assignee in the first instance.

It is also insisted that Mr. Anthon, the assignor of the testator, was a necessary party. It is a sufficient answer to this position, that the appellant is not in a position to' raise the question. The defect, of parties, if any, appears upon the face of the complaint, and in such cases the question can only be raised by demurrer. (Code, sections 144-147; Depuy agt. Strong, supra.) It is, therefore, unnecessary, to inquire whether Anthon was a necessary party.

It follows that the personal representatives of Marvin could have maintained an actiou against the defendant’s testator to recover the mortgage, and, when he had received the money secured thereby, to recover from him the money so received. This liability of the testator survived against *355his personal representatives, (Haight agt. Hoyt, 19 N. Y., 464,) and was assignable, like any other chose in action which survived in favor of and against personal representatives. (Bixbie agt. Wood, 24 N. Y., 607.) It is insisted that the administratrix had no power to assign this claim to the plaintiff. To this I answer, that she had the same power to assign and transfer this, that she had any other chose in action, or to sell any of the personal property of her intestate. It is further insisted, that by her marriage with Fanning, her power to assign and transfer, without the assent of her husband, ceased. It is not necessary to determine this point, for the fact is found that the administratrix executed the assignment to the plaintiff in the presence of, and with the assent of her husband. This made it his act, if that be necessary to its validity. (Edgerton agt. Thomas, 5 Sel., 40.) The plaintiff was clearly entitled to recover interest. The money had been illegally received by the testator upon the mortgage, and retained by him and his representative, and his estate is chargeable with interest as damages. The fact that the testator received the money upon a decree in a foreclosure suit, to which he was made a party by reason of his apparent ownership of the mortgage, does not affect the right of the plaintiff; neither he nor his assignor was a party. This right to the mortgage or its proceeds could not be affected by the judgment. The mortgage was not paid out of a surplus arising upon the sale, the right to which was determined subsequent to the judgment, but its payment was directed by the judgment. The exception is too general to raise any question as to defendant’s liability for costs.

The judgment appealed from must be affirmed, with costs.

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