author: Taloott, J.: E. DabwiN Smith, J.

text:
    JAMES J. W. DAWLEY, Appellant, v. JOHN P. BROWN, Respondent.

      Plea in abatement — sufficiency of— answer not reguwed to contain pra/y&r for relief— D&rmm'er — Judgment in ejectment— setting aside of— effect of on possession intermediate the judgment and its being set aside.

    The defendant herein set up in his answer the pendency of another action, brought against him by the plaintiff for the same cause of action, and stated that he would set up the pendency of the former action “ as a bar to the further prosecution of this action.” Upon the trial the plaintiff insisted that the answer was insufficient for the reason that the plea should have concluded with a prayer that the writ be quashed or the suit abated, and that it could not be set up as a bar to the action. Held, that the objection was properly overruled; that under the present system of pleading the answer was not required to contain any prayer for the particular relief demanded by the defendant, or any statement as to what he might consider to be the legal effect of the facts set up.

      Held, further, that if any objection existed to the answer it should have been presented by a demurrer, and that it was waived by going to a trial upon the issue of fact.
    The plain tiffhaving brought an action against the defendant to recover certain land, obtained a judgment therein, upon the default of the defendant, declaring the plaintiff to be the owner of the land and entitled to the possession thereof, subsequently he issued a writ of possession to the sheriff, and in pursuance thereof the defendant attorned to him. Subsequently the judgment was set aside as irregular and the defendant reinstated in his possession and occupation of the land, as he was prior to the time of the entry of the judgment; at which time he had been in the hostile occupation thereof for many years. Intermediate the time of the attornment by the defendant and the setting aside of the judgment the plaintiff took a deed of the premises from one claiming to be the owner thereof. Held, that after the setting aside of the judgment the proceedings by which the plaintiff obtained possession of the land were as though they had never existed; and that as there was therefore no change in the legal possession the deed was void for champerty. (Smith, J., dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.
    The action was in ejectment for the recovery of certain real estate in the counties of Ontario and Monroe. The answer set up the pendency of another action between the same parties for the same cause of action, and further stated that “ the defendant on the trial of this action will set up the pendency of said action as a bar to the further prosecution of this action.”
    It appeared on the trial that the plaintiff had brought an action against the defendant to recover the land in question, and obtained a judgment therein, upon-the default of the defendant, declaring the plaintiff to be the owner of the land and entitled to the possession thereof; subsequently he issued a writ of possession to the sheriff, and in pursuance thereof the defendant attorned to him. Subsequently the judgment was set aside as irregular, and the defendant was reinstated in his possession and occupation of the land, as he was prior to the time of the entry of the judgment; prior to which time he had been in the hostile occupation thereof for many years. Intermediate the time of the attornment by the defendant and the setting aside of the judgment, the plaintiff took a deed of the premises from one Loren Culver, claiming to be the owner thereof. The plaintiff claimed that in this action he was asserting, not the title which he claimed when the former suit was commenced, and not the title involved in that action, but another and a subsequent title derived under the deed obtained from Loren Culver.

      John Van Voorhis, for the appellant.

      E. G. Lcupham, for the respondent.
   Taloott, J.:

This case has once before been before the General Term, on which occasion it was held, in an opinion delivered by MulliN, P. J., that the action was abated by the pendency of the suit of this plaintiff against Pos and Brown, and the justice at the Circuit followed the decision of this court in nonsuiting the plaintiff, upon the plea of the former action pending and the proof under it. It does not distinctly appear from the opinion of Justice MulliN upon what grounds the plaintiff, upon the former occasion, sought to maintain the position that the plea of another action pending for the same cause did not constitute any objection to the recovery in this suit, and it is to be presumed that all of the aspects of the case were then considered. On the argument of the present appeal, however, the counsel for the plaintiff has insisted upon certain views, which he assumes were not called to the attention of the court in the former appeal, and were not considered, and it is, perhaps, well to refer briefly to such views.

The action, commonly called an action of ejectment, is to recover the possession of certain real estate, situated partly in the county of Ontario and partly in the county of Monroe. With certain answers in bar, the defendant sets up the pendency of an action against himself and one George D. Fox, which he avers is for the same cause as that set forth in the complaint, and states that on the trial of this action he will set up the pendency of the former action as a bar to the farther prosecution of this action.”

It is well settled that, under the present system of practice, matters in abatement and matters' in bar may be joined in one answer, and both be tried and decided at one time. (Sweet v. Tuttle, 14 N. Y., 465; Gardner v. Clark, 21 id., 399.)

The plaintiff, however, does not deny that this is the law as now existing under the Code, but insists that in such case it is necessary that the answer of the matter in abatement should conclude according to the ancient form of a plea in abatement, and not be set up as a bar to the action; and upon this ground he takes exception to the form of the answer in this case, or rather to the relief sought by the answer, and says that, in order to be available, it should have concluded that the writ be quashed, or the suit abate. The answer is not now required to contain any prayer for the particular relief demanded by the defendant, or any statement as to what the defendant - may consider to. be the legal effect of the facts he sets up. ’ If he makes any such demand or statement, it is simply surplusage. It is siiffieient if the facts which he avers constitute matter either in bar or abatement, and the plaintiff must himself determine at his own peril whether the facts are sufficient and sufficiently averred to constitute a defense, either in bar or in abatement. The objection made by the plaintiff is to the form of the answer, and not to its substance, and we think if any objection really exists to the form of the answer, it should have been presented by a demurrer, as in Compton v. Green (9 How., 228), and that the plaintiff cannot go down to trial of the issue of fact, and there for the first time raise an objection to the mere form of the answer.

Again, tbe plaintiff claims that in this action he is asserting not the title which he claimed when a former suit was commenced, and not the title involved in that action, but another and a subsequent title derived under the deed from Loren Culver to him (the plaintiff), dated July 18, 1869. It appeared on the trial and by the documents produced, or assumed to be before the court, that the plaintiff had conveyed the premises in question to Loren Culver on the 16th day of March, 1857. The former action was commenced on the 7th day of April, 1869, as stated in plaintiff’s points, and while any title which the plaintiff may previously have had, was by his own deed vested in Loren Culver. In the former action the defendant Brown and George D. Fox and a number of other persons were made defendants, and though the judgment roll in the former action was produced on the trial by the plaintiff, it is not fully set forth in the case, so that the precise nature of the action can be seen. The plaintiff, however, states in his points that the former action when commenced was of an equitable character, but precisely what the complaint in that action was for does not appear by the case. It may, however, be safely assumed that the action was in substance, to recover the same land described in the complaint in this case, upon some legal or equitable title claimed by the plaintiff. In fact the plaintiff shows on this occasion, that his complaint in the former action was amended so as to claim the possession of the premises described in the complaint in this case, which are parcel of the premises described in the complaint in the former action as owner in fee, and that the defendant Fox unlawfully withheld the same. In the former action this defendant Brown and George D. Fox did not put in any answer within the time prescribed by law, for what reason and under what circumstances does not in the present case distinctly appear. On the 6th day of July, 1869, the plaintiff, on proof of the default in the said former action of Brown and Fox, two of the defendants, obtained at a Special Term in Monroe county an ex parte order to the effect that the summons and complaint in the former action be amended by striking out the names of, and discontinuing the action as to all the defendants except Fox and Brown, and turning that action as against Fox and Brown into an action to recover the possession of the premises, and that the plaintiff have judgment for the possession with costs of the action, and declaring that he (the plaintiff) was the owner of the premises in fee simple absolute. On the same day, the plaintiff, at the same court, obtained a further ex parte order in the form of a judgment by default against Fox and Brown, that he recover possession of the premises, and for the costs of that action, and that he was the owner of the premises in fee simple absolute, and entitled to the possession thereof, and particularly describing the premises according to an amended complaint, which he had apparently caused to be filed after the granting of the first order, and before the granting of the second.' And on the same day he issued a writ to the sheriff of Monroe county, in the form of a habere facias, commanding him to deliver the possession of the premises to the plaintiff, and to levy and collect the costs. The plaintiff then went with his attorney and the sheriff upon the premises, and on the seventh day of July procured the attornment to him of various persons in possession, and among others of the defendant in this suit, with an agreement on the part of the defendant, to pay the plaintiff twenty-five cents per week, per head, for pasturing certain cattle on the premises, and acknowledging that the premises had* that day been delivered to the plaintiff by the sheriff of Monroe county. The defendant in this suit, also one of the defendants retained in the former suit by the amendment, liad been from a time anterior to the commencement of the former suit, in the adverse and hostile possession of that portion of the premises occupied by him, under claim and color of a title in fee, and still continued to remain in the actual possession after the formal execution of the writ of habere facias and the formal attornment to the plaintiff.

On the 26th day of July, 1869, at a Special Term in Livingston county held by Mr. Justice JOHNSON, on a motion made by Fox and Brown, after hearing the plaintiff by counsel, it was ordered that the said judgment against Fox and Brown be set aside as irregular, and that the defendants Fox and Brown be, and they were thereby, reinstated in the possession of the premises occupied by them respectively described in the said complaint and judgment, as they were severally in the possession and occupation of the same prior to the entry of said judgment, and that the plaintiff or the sheriff make restitution of the costs which had been collected. It was after the formal execution of the hcibere facias, and during the time intervening between that and the order of the twenty-sixth day of July vacating the judgment and reinstating Brown and Fox in the possession, as they were in possession prior to the entry of the judgment, that the deed introduced by the plaintiff from Loren Culver to the plaintiff was executed. And it is under the claim of a title to the premises, as conveyed by that deed, that the plaintiff now insists that this action is founded upon a new title, and consequently is not the same cause of action upon which he claimed to recover in the said former suit as amended. The same facts appeared, in substance, when this action was before the court on a former occasion, and at least some of the members of the court concurred in the reversal of the judgment then recovered, partly on the ground that the proceeding's whereby the plaintiff, under color of the former judgment and execution, had obtained the nominal possession and attornment were void, after they had been set aside, as though they never bad existed (Haley v. Wheeler, [MSS.], 4th Dept., Oct., 1876), and that the means whereby the defendant had obtained such formal possession and attornment by an ex pa/rte order, changing the action from an equitable action into an action of ejectment, and obtaining an ex ¡parte judgment and execution in the action of ejectment were fraudulent and void as against Brown and Fox, and that, in judgment of law, the legal possession had not been changed, but that Fox and Brown must be deemed in law to have been in continual possession under their claims of title, and consequently that the deed of the plaintiff from Loren Culver was void for champerty, and that the plaintiff in this action could only rely on the title claimed by him in the former suit, and that the cause of action was the same as in the former suit, which was still pending against Fox and Brown for the same premises, or at all events the plaintiff was not entitled to recover, and that his judgment must be reversed.

The plaintiff claims that on the last trial the justice granted the nonsuit solely on the ground of the former action pending. Such seems to be the fact, and the ground, as thus stated, was in accordance with the ruling on the former appeal; but if that precise ground is not maintainable, at all events the plaintiff ought to have been nonsuited, because he showed title out of himself by introducing bis deed to Culver; and the deed from Culver back to him being void for champerty, did not reinvest him with the legal title, for the purposes of an action of ejectment.

■ These facts appearing in the case without dispute and not to. be obviated, it is of no consequence what reason the justice at the Circuit gave for his ruling by which the plaintiff was nonsuited. It is well settled that where it appears that the defendant was entitled to a nonsuit upon a ground not to be obviated, the nonsuit is to be sustained whether the court at the trial placed the ruling upon that ground or some other. '

The judgment is affirmed.

E. DabwiN Smith, J.

(dissenting):

At common law, the plea of a former suit pending for the same cause of action, always contained an averment that the parties were the same in both actions. (2 Chitty’s Plead., 19.) Where it appears by the complaint upon its face, that theré is another action pending between the same parties for the same cause, it is a good ground of demurrer under section 144 of the Code, and if the fact or matter enumerated in said section as a ground of demurrer does not appear upon the face of the complaint, the objection' under section 147 may be taken by answer. Under the Code, as at common law, the answer setting up the pendency of a former suit in bar, or abatement, must allege that the parties are the same as well as the cause of action. (Auburn City Bank v. Leonard, 20 How., 196; Kelsey v. Ward, 16 Abb., 98.) This action is against Brown as a sole defendant. The former suit, if reference is had to the suit in equity, was against numerous defendants, and if reference is had to the action after the amendment, it was then against two defendants, Kox and Brown. Whether the former action be considered an action in equity or law, after the amendment, it is quite clear that the plaintiff had no cause of action in either form. He could not avoid his own deed for fraud in equity, and the legal title was clearly in Culver, and he must necessarily have been nonsuited at the trial, and such judgment would not have been a bar to another action as res adjudieata, and for the same reason the plea of a former suit pending is not good. (Stowell v. Chamberlain, 60 N. Y., 272.) The question whether the causes of action are the same is whether the same evidence will support both actions. (Id., 277; Rice v. King, 7 Johns., 19; Miller v. Manice, 6 Hill, 114; Johnson v. Smith, 8 Johns., 383.) The deed, executed by Culver to the plaintiff, I do not think was void for champerty. At the time of its execution the land was not in the actual possession of a person claiming under a title adverse to that of the grantor. The defendant was then in possession as tenant of said plaintiff under a voluntary lease. It is true he was subsequently restored to the possession, buf his voluntary act of taking a lease from the plaintiff upon the execution of the habere facias was not thereby rendered invalid, so as to convert his possession under the lease into adverse possession, while he held under it, so as to make void the'deed from Culver to the plaintiff, executed while such lease was in full force.

Present — MulliN, P. J., Smith and Talcott, JJ.

Judgment affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    HERBERT JOHNSON, Executor, etc., of NATHANIEL JOHNSON, Deceased, Plaintiff, v. ABIJAH GILBERT, Impleaded with GEORGE W. TUTTLE, Defendant.

      Bond of indemnity to sTieriff, on seizure of goods — “ to Tceep, hew harmless and inderhnify ” —judgment against sheriff for such seizure — constitutes a breach thereof — Sheriff need not pay judgment before suing on bond.

    MotioN for a new trial on exceptions, ordered to be heard in the first instance at the General Term.
    This action was brought upon a bond of indemnity, executed by the defendants to Gamaliel Benjamin, sheriff of Allegany county, and assigned to plaintiff’s testator. The condition of the bond was: “ That if the obligors shall well and truly keep and bear harmless and indemnify the said sheriff and his deputies, and all and every person and persons who have aided or assisted said sheriff in seizing said goods and chattels, or in selling the same, or who shall hereafter aid and assist said sheriff in keeping possession of the same, or in removing said goods and chattels or in selling the same (if the said sheriff shall be ordered to. do so in pursuance of an order of said judge), of and from all harm, let, trouble, damages, costs, suits, actions, judgments and executions that then, or may at any time arise, come or be brought against him, them or any of them, etc., then said obligation to be void,” etc.
    The plaintiff showed, upon the trial, the recovery of a judgment against the sheriff for the seizing and taking possession of the said goods and chattels mentioned in the condition of the said bond.
    The court at General Term say: “ This was a clear breach of the bond, and entitled the plaintiff to maintain the action thereon within the cases of Bancroft v. Winspear (44 Barb., 209); Chace
      y. Hinman (8 Wend., 452); Rockfeller v. DonneU/y (8 Cow., 628), and Gilbert v. Wiman (1 Comst., 561).
    The defendants, by the terms of the condition, were to ‘keep, bear harmless, and indemnify, of and from all harm, let, trouble, damages, costs, suits, actions, judgments and executions.
    Certainly, when an action or suit was brought and proceeded to judgment and execution, the condition was broken, and a right of action was immediately given to the sheriff. It was not the intent of the parties that the sheriff should pay such judgment before he could commence an action on the said bond.”

      Hart cfe McGuire, for the plaintiff. George 8. Jones, for the defendant.
   Opinion by

Smith, J.

Present — MunniN, P. J., Smith and Talcott, JJ.

New trial denied, and judgment ordered for plaintiff on verdict.


text:
    WILLIAM L. MATSON, Respondent, v. NANCY E. BURT, Appellant.

      United States Circuit Court — not inferior court rendm’ing it necessm’y to show its jurisdiction on the face of the record — Appeal, without secwrity, from judgment of, does not prevent am, action on the judgment being brought in another court.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought upon a judgment recovered in the United States Circuit Court for the northern district of New York. The defendant insisted that the Circuit Court was an inferior court, and that the fact showing that it had jurisdiction to render the judgment should be set forth in the complaint, and also that as the action in which the judgment was rendered had been taken to the Supreme Court of the United States, upon a writ of error, that no action could be maintained thereon until the cause had been there decided.
    The court at General Term say: “ The judgment set out in the complaint is sufficiently described under the provision of section 161 of the Code.

      Tbe Circuit Court for the northern district of New York, is not an inferior court in the sense which renders it necessary to show its jurisdiction on the face of the record. (Ohemung Ganal BcmTc v. Judson, 8 N. Y., 254.)
    The judgment remains valid till reversed, and may be enforced by execution until stayed by security given under the statute. If a judgment can be enforced in such case, without a stay from the Supreme Court of the United States, it can, I should think, be sued over in any court of competent jurisdiction.
    We are referred to no authority holding that an appeal or writ of error brought to review a judgment without security, suspends proceedings upon such judgment by suit or in any other mode.
    The judgment should be affirmed.”

      BolUn Traoy, for the appellant.. W. E. Exighitt, for the respondent.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Taloott, JJ.

Judgment affirmed.


author: Taloott, J.

text:
    LOIS G. COGGSHALL and others, Appellants, v. JAMES F. GREEN and others, Respondents.

      Appointment of administratew — removal of, for improvidence — what is improvidence — 3 B. 8. (6th «&), p. 78, § 36.
    Appeal from an order of the surrogate of Cayuga county.
    This is an appeal by some of the next of kin from the order of the surrogate of Cayuga county, appointing the respondents James E. Green and Calvin B. Green administrators of the estate of William Green. The appellants contest the appointment of the respondents, upon the ground that they are incompetent to administer by reason of improvidence; that James E. Green' has wasted the estate by falsely claiming parts of it as belonging to himself, and that the petition for the appointment of the respondents, filed by James E. Green, greatly understates the amount of the personal estate of the intestate.

      The court at General Term say: “ There is no evidence to sustain the allegation of improvidence, in the legal sense in which that term is used in the statute, relating to the appointment of administrators. The statute is, that ‘no letters of administration shall be granted to a person who has been convicted of an infamous crime, who is incapable of making a contract, who is not a citizen of the United States (unless he resides in the State), who is under twenty-one years of age,’ nor to any person ‘who shall be judged incompetent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding.’ (3 R. S. [6th ed.], p. 78, § 35.) Moral guilt or delinquency is not a ground for excluding a person from receiving letters, unless he, has been convicted of an infamous crime. (Dayton on Surrogates, 241.)
    Improvidence such as to exclude a party from administration, is a want of ordinary care and forecast in the acquisition and preservation of property. (Emerson v. Bowers, 14 N. Y., 449.) And it has been held that vicious conduct, improper and dishonest acquisition of property, and even loose habits of business, did not constitute ‘ improvidence ’ within the meaning of the statute, nor the fact that the petitioner was indebted to the estate. (See Ooope v. Lowerre, 1 Barb. Ch., 45; McMahon v. Harrison, 10 Barb., 659; Emerson v. Bowers, 14 N. Y., 449.) And in Goope v. Lowerre the chancellor says that the fact that a man seeks to obtain the property of others by theft or fraud is not evidence of improvidence.’.’

      Mortimer V. Austm, for the appellant.

      S. E. Day, for respondent James E. Green. W. W. Hare, for respondent Calvin B. Green. Edwin Baldwin, for respondents Wm. H. Weeks and others. D. L. HurTbut, guardian ad litem and attorney for respondents Edwin Weeks and others.
   Opinion by

Taloott, J.

Present — MulliN, P. J., Smith and Taloott, JJ.

Order of surrogate of Cayuga county affirmed, with costs to be paid out of fund.


author: LeARNed, P. J.: Boasdmak, J.: BooKEs, J.

text:
    JAMES E. DEWEY and others, Respondents, v. HENRY MOYER and BETSEY MOYER, Impleaded with another, Appellants.

      Fraudulent conveyamae — discharge inbamkn'wptcy of debtor— confession of new judgment by — right of judgment creditor, to maintain action to set aside fraudulent conveyance.

    This action was brought by the plaintiffs, in whose favor the defendant Eldredge had in 1870 confessed judgment upon claims accruing prior to 1858, to set aside as fraudulent certain conveyances made by the said defendant, Eldredge, to the defendants Moyer in 1858. The defendant Eldredge did not appear. The other defendants set up as a bar to the action that the defendant Eldredge had been discharged in bankruptcy in 1858, and upon the trial proved the said discharge and the deed to the assignee made in the course of those proceedings.

      Held, (1) that as the defendant Eldredge did not set up his discharge in bank-. ruptcy when the judgments were taken against him in 1870, the .defendants Moyer could not now dispute their validity.
    (2) That the defense, as set up in the answer, was the discharge of the defendant Eldredge in bankruptcy, and not that the right to maintain this action was vested in his assignee therein.
    (3) That even if the legal title to the property was and continued, after the bankrupt’s discharge, to be m the assignee, yet as he held the same merely as a trustee for the creditors, any one of the cestuis que trust might bring an action, providing the assignee was made a party thereto.
    (4) That if the assignee was not made a party the defendants must set up. this defect in their answer, or otherwise it would be waived. (Bockes, J., dissenting.)
    On the discharge of an assignee in bankruptcy the property of the debtor unad-ministered by the assignee, passes to the debtor without a reassignment. (Per 'Leabned, P. J.)

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought by the plaintiffs as judgment creditors of the defendant Clinton Eldredge, for the purpose of collecting their respective judgments, recovered in 1870, upon prior judgments recovered in 1856, out of property alleged to have been fraudulently transferred by the judgment debtor to the defendants Moyer, in 1858. The defendant Eldredge did not appear. The defendants Moyer set up as a defense to the action, first a general denial, and second, “that on or about the 17th day of August, 1858, at Buffalo, in the State of New York, the United States District Court, held in and for the northern district of the State of New .York, duly made an order and a decree discharging the defendant Clinton Eldredge of and from all his debts, of all of which proceedings in the said court in bankruptcy for such discharge the said plaintiffs and their said assignors, and each of them, had due notice; that the pretended indebtedness, if any such existed, or ever did accrue, accrued prior to the filing of the petition of the said Clinton Eldredge for his discharge from such debts in the said United States District Court, and prior to the granting of such discharge. * * * And the said defendant further answering said complaint, upon her information and belief alleges and avers that the said claims upon which the said pretended judgments, Nos. 4, 5, 6, 7, 8 and 9, as stated in said complaint, are based, were not valid, legal, subsisting claims against the said defendant, Clinton Eldredge, at the time the said judgments were obtained and recovered against him, by the said plaintiffs, as alleged in said complaint, if any such there are; by reason of lapse of time, and by reason of his said discharge from all his debts in the said United States District Court, but that the said judgments, if any exist, are fictitious, invalid and fraudulent, and were obtained by a fraudulent collusion, understanding, agreement and promise, made between said plaintiffs, or some of them, or their attorneys, or some of them, and the said defendant, Clinton Eldredge, that the same should not be enforced against him, nor should any portion thereof be collected from him, or out of his property or effects, but that the same should be only chargeable or attempted to be collected of and from the defendants Moyer, or either of them, for the joint and mutual benefit of the said plaintiffs and the said defendant, Clinton Eldredge. Wherefore, defendant asks that plaintiffs’ complaint be dismissed with costs.”
    The referee found that the conveyance made by the defendant Eldredge to the defendants Moyer, in 1858, was made with intent to defraud his creditors, and upon the agreement that they should hold the farm for his benefit, and that they would restore it to him, after deducting the amount of their liens then existing thereon, and as conclusions of law:
    First. That the defendant Eldredge having waived his discharge in bankruptcy, such discharge is, under the pleadings in this action, unavailable to the other defendants as a defense, and neither it nor the assignment connected therewith, furnishes any bar to the plaintiffs’ right of recovery in this action.
    Second. That under the pleadings and proofs, the plaintiffs have a perfect right to maintain this action, and are entitled to judgment therein.

      Matthew Hale, for the appellants.
    The referee erred in not holding that the proceedings in bankruptcy and the assignment, and debtor’s discharge therein, were a bar to the plaintiffs’ right of recovery. All the property of the bankrupt vested in the assignee under and by virtue of the appointment of the assignee. (Bankrupt law of 1867, § 14; Jones v. Millbank, 6 Bans., 73.) No one but the assignee, since his appointment, has had a right to maintain an action to set aside a fraudulent conveyance. (Goodwin v. Sharkey, 5 Abb. [N. S.], 64; Stewart v. Isidore, id., 68; In re Meyers, 1B. R., 162 ; Thomas v. Phillips, 9 Penn. St., 355; Pomeroy v. Lyman, 10 Allen, 468; Williams v. Merritt, 103 Mass., 184.) The discharge granted to Clinton Eldredge was from all his debts, except those specifically excepted by the act. (Bankrupt law, § 32; and as to effect of discharge, see id., § 34.) And the debts were discharged, although the judgment was rendered after the filing of the petition. (Monroe v. Upton, 50 N. Y., 593.) After the judgment debtor is discharged in bankruptcy, a creditor cannot proceed against his fraudulent transferee. (Botts v. Patton, 10 B. Mon., 452; Ocean Bank v. Olcott, 46 N. Y., 12.) The confessions of judgment to plaintiffs by the bankrupt, subsequent to the discharge, do not aid the plaintiffs. They amount simply to a new promise and create a new debt, enforceable only against newly acquired property of the bankrupt. (Depuy v. Swart, 3 Wend., 135, 139; Baker v. Wheaton, 5 Mass., 509, 512; Lm-bury v. Weightman, 5 Esp., 198, note; Roberts v. Morgan, 2 id., 736 ; Stearns v. Tappen, 5 Duer, 294, 299; Oar son v. Osborn, 10 B. Mon., 155.) That assignee could maintain suit after and without vacating the discharge, as against a fraudulent grantee, see Re Dole (7 B. B,., 538). The proceedings in bankruptcy were sufficiently pleaded. (Code, § 161.) A fact necessarily understood or implied forms a part of a pleading as much as if specifically alleged, and a direct allegation of such fact, although proper, is never necessary. {Partridge v. Badger, 25 Barb., 146, 170; Hunt v. Bennett, 19 N. Y., 173; 2 Wait’s Brae., 315, and cases there cited.) It is unnecessary to state, in pleading, matter of which the court takes judicial notice. (Swennerton v. Ins. Go., 37 N. Y., 174; People v. Snyder, 41 id., 397; Shaw v. Tobias, 3 Comst., 188, 190.) And the court will take judicial notice of the public statutes of the United States. {Jack v. Martini, 12 Wend., 311, 329; Platt v. Ora/wford, 8 Abb. [N. S.], 297, 304.) The proof showing that the plaintiffs had no title or interest in the property sought to be reached, at the time this action was commenced, their complaint should have been dismissed. It was not necessary to take the objection before the trial. {Mosselman v. Oaen, 1 Hun, 647; Davis v. The Mayor, ete., 4 Kern., 506, 526; Greene v. Breek, 10 Abb., 42; D'eWitt v. Ohandler, 11 id., 459.)

      J. E. Dewey, for the respondent.
    The discharge was a personal defense for Eldredge only, a personal privilege, which he alone could set up or waive as he chose, like the defense of infancy, which is personal, and none but the infant can avail himself of it. {Sloeum v. Hooker, 13 Barb., 536; Parker v. Baker, Clarke’s Ch., 136-138; Masons. Dennison, 15 Wend., 64.) Bankruptcy and infancy are, in this country, put upon the same ground as a personal privilege. {Sloeum v. Hooker, supra; Blanehm-d v. Caswell, 7 Gray, 153-155.) So that of the statute of limitations. {Rawles v. The Am. M. L. Ins. Oo. , 27 N. Y., 282, 296; Hyde v. Van Valkenburg, 1 Daly, 416.) Also, duress and usury, or any other technical or statutory defense. {Boughton v. Smith, 26 Barb., 635; Murray v.
      Judson, 5 Seld, 73, 83-85; Farr v. Pymer, 2 Cb. Sent., 20; Parlcer v. Rochester, 4 Johns. Oh., 329, 331-333.) So the claim of exemption is personal. ' (Earl v. Gamp, 16 Wend., 563.) So, though a party may, when sued, defend, he is not bound to for the benefit of others, either by insisting upon the statute of frauds (Gahill y. Bigelow, 18 Pick., 369, 372) or upon lapse of time. (MoGartney y. Welch, 51 N. Y., 626, 627; Adams v. Gurlis, reviewed, 10 Alb. L. J., 274; S. 0., 4 Lans., 168, 169, Hoge-boom:, J.) So, if the judgment is irregular, he only can take the objection. (5 Seld., 73, 84.) A bankrupt discharge is waived, and in this case was waived by the debtor’s not pleading it or defending the suit. (Price v. Peters, 15 Abb., 197; Medbury v. Swan, 46 N. Y., 202; Rtodge v. Rundell, 1 T. & Cook, 649, 651.) Even the mere delay or laches of the debtor waives it. (46 N. Y., 200 ; 3 T. & Cook, 118 ; S. C., 756 ; Barston v. Hanson, 2 Hun, 334.) But a conclusive waiver of the discharge as to everybody was the bankrupt’s confession thereafter of these judgments to the plaintiffs. (Dusenbury v. Hoyt, 53 N. Y., 521; Stewart v. Wilson, 2 Law and Eq. R., 234,235.) Like the statute of limitations, a bankrupt discharge never paid or satisfied a debt. (Johnson v. A. and S. R. R. Go., 54 N. Y., 416, 426, 427.) Pleading the discharge only was not an averment of an assignment or of an assignee’s appointment. (Sutherland v. Paris, 10 Nat. Bky. Reg. R., 424.) It was necessary to aver the transfer directly, without leaving it to inference, conjecture or presumption. (Patterson v. Taylor, 8 Barb., 250 ; Fisher v. Mayor, etc., 3 Hun, 649 ; 3 Hen., 314; 6 Seld., 175; 29 Barb., 436, 442.) The making of the assignment was in no sense a judgment or deternvination of any court, and these defendants were, therefore, thrown back to the common-law rule requiring an averment of all the facts necessary to give jurisdiction. (Bankrupt act, §§ 11 and 14; Sto. Eq. PL, § 726, p. 562 [1st ed.]; Garitón v. Leighton, 3 Meriv., 667; Beames Eq. PL, 120-122; Cooper Eq. PL, 249, 250.) This objection now made amounts only to this : that the debtor’s assignee had the right, as between him and the plaintiffs, as a trustee, to collect and distribute it to them, and possibly to other creditors, not parties, and who may not get their share. It is, therefore, only an objection, for a defect or want of parties, plaintiff or defendant, which, under the Code, was warned by not taking it by answer. (Code, §§ 144, 147, 148; Fort Stcmwix Bh. v. Leggett, 51 N. Y., 552, 554, 555; Fox v. Moyer, 54 id., 125, 130; Merritt v. Walsh,- 32 id., 685; Zabrislde v. Smith, 3 Kern., 322, 336; Child v. Brace, 4 Pai., 314; Depuy v. Strong, 3 Keyes, 603-605.) The rights of the bankrupt assignees “ are not to be taken into consideration, unless they have themselves interfered.” {¡Drayton v. Dale, 2 B. & Cress., 293, 295,297; Fort Stanwix Bh. v. Leggett, supra ¡ Card v. Walbridge, supra; Freeman v. Denning, supra ¡ Seaman v. Stoughton, 3 Barb. Ch., 349; Fyster v. Gaff [S. C. U. S.], 13 Alb. L. J., 144, 145.) This is so, even where their rights are claimed either by or against the bankrupt in a suit to which he is a party. (See same cases; also Sanford v. Sanford, 58 N. Y., 67; Silhe v. Osborne, 1 Esp., 140; Evans v. Brown, id., 170; Fowler v. Down, 1 B. & P., 47, 48, 49; Bvrd v. Fierpoi/nt, 1 Johns., 126.) And certainly the fraudulent holder has less rights or none at all. The Moyers could not have set up an outstanding title in another without connecting themselves with it. (16 Wend., 563, 571; 11 id., 54, 57; 4 Duer, 438; 16 B., 595-597; 16 Ilow., 547.) Especially so, as against these plaintiffs, whose rights are better than, and prior to those of fraudulent holders. (4 Johns. Ch., 687.)
   LeARNed, P. J.:

This action is brought by judgment creditors of Clinton Eldredge to declare certain other judgments in favor of the defendant Betsey Moyer to be fraudulent and void, on the ground that they were intended to defraud creditors; and also to reach property in the hands of the Moyers, alleged to be fraudulently held by them, as against the creditors of said Eldredge. The plaintiffs setup several judgments against Eldredge, recovered in June, September and October, 1870. The causes of action, on which they were recovered, are alleged to have arisen at certain times, prior to June, 1858.

The defendants Moyer, after denying the fraud, aver that on the 17th day of August, 1868, Eldredge was discharged by the United States District Court in bankruptcy from his said indebtedness to the plaintiffs; that their debts were provable in the bankruptcy proceedings, and that the plaintiffs are therefore barred from enforcing the same. On the trial the referee reported in favor of the plaintiffs, and the defendants Moyer appeal.

They insist, now, first: That tbe debts owing to tbe plaintiffs, were discharged by tbe proceedings in bankruptcy. However that may have been, it was for Eldredge to insist upon that discharge, when tbe judgments were taken against him in 1870. If be chose to waive bis discharge, be was at liberty to do so. And if be did waive bis discharge, or confess judgment, the defendants Moyer cannot dispute the validity of the judgments. (Price v. Peters, 15 Abb., 197; Rudge v. Rundell, 1 N. Y. S. C. [T. & C.], 649; Medbury v. Swan, 46 N. Y., 202.) It is not dishonest for a debtor, who has been discharged in bankruptcy, to waive the discharge and allow a judgment to be recovered against him for the original debt. (Dusenbury v. Hoyt, 53 N. Y., 521.) And if he permits a judgment to be thus recovered against him, the creditor has a right to enforce the judgment against any property of the debtor. One who is in possession of property of the debtor, transferred with intent to defraud creditors, cannot defend himself on the ground that the debtor might have had a defense against the judgment, if he had chosen to assert it.

But the second point, and one which is more strongly urged by the defendants Moyer, is that, after the appointment of an assignee in bankruptcy, he only can bring actions to set aside fraudulent transfers. (Goodwin v. Sharkey, 5 Abb. [N. S.], 64; Rev. Stat. U. S., § 5046.)

The defendants urge, in support of this point, the case of Ocean Nat. Bank v. Olcott (46 N. Y., 12). But the difference between this case and that, is that the debt of the plaintiffs, in that case, had been discharged, and they were no longer creditors. Hence, it was held that they could not avail themselves of the benefit of 1 Revised Statutes (m. p.), 728, section 52. But in the present case the plaintiffs are creditors, and the débts which they now hold have not been discharged. And the question is whether persons, who fraudulently took, and still hold, property of the debtor, shall be allowed to retain it, as against these creditors.

The defendants further insist that the present judgments create only a new debt, and can only be enforced against newly acquired property of Eldredge. But if this were so, it cannot be urged that a debt can only be enforced against property of the debtor thereafter acquired. Furthermore the complaint charged, and the referee finds that the fraudulent transfer was on a promise to restore the property to Eldredge, the debtor. Such a fraudulent transfer is void against even subsequent creditors. (2 R. S. [m. p.], 135, § 1.)

In reply to this second point of the defendants, the plaintiffs say that, if this were any defense, it was only a defect of parties, not set up in the answer, and therefore waived. (Code, §§ 144, 147, 148.) It is not set up in the answer. The answer only alleges the discharge of the debt, and rests (aside from denial of the fraud) on the allegation that the debt is discharged. It does not aver that an assignee was appointed or that he should be a party to the action.

In the course of the trial copies of the proceedings in bankruptcy were offered in evidence, and objection was taken to their admissibility. They were admitted, and they contain a certified copy of the assignment, made by the register in bankruptcy to the assignee (under Rev. Stat. U. S., § 5044). Now we pass the question, which is urged by the plaintiff, whether this is proper evidence of the execution of the assignment. The proceedings were pertinent to the issue of discharge, and this copy assignment was a part of these proceedings. The reception of these proceedings in evidence was not a waiver (especially when objection was made) of the objection to the 'consideration of the issue of defect of parties. (Williams v. M. and F. T. Ins. Co., 54 N. Y., 577; Codd v. Rathbone, 19 N. Y., 37.) The defendants set up Eldredge’s discharge. The papers given in evidence were admissible to prove that. They did not set up that there was an assignee, and that the right of action was in him only, and therefore the proof (if there was proof) of the appointment of an assignee, coining in under the other issue, does not raise an issue which the defendants did not raise by their pleadings. A defense not pleaded is of no avail. (Kelsey v. Western, 2 N. Y., 501; Brazill v. Isham, 12 id., 9.)

An assignee in bankruptcy is but a trustee for the creditors, and does not hold the property as of his own right. When he makes a final dividend and renders his account, and it is passed, he is to be discharged from any liability to any creditor. (Rev. Stat. U. S., § 5096.) On his discharge the property reverts to the debtor without a reassignment. (Colie v. Jamison, 4 Hun, 284.)

While he holds the property the creditors are oestuis que trust, and a eestui que trust may bring an action such as this, if he makes the trustee a party. (Fort Stanwix Bank v. Leggett, 51 N. Y., 552; Fox v. Moyer, 54 id., 125.) And if he did not make the trustee a party, the defendant must set this up as a defect of parties.

The reasons for this are plain. It does not lie with these defendants Moyer, holding property fraudulently as against Eldredge’s creditors, to make this an affirmative defense. The assignee in bankruptcy has made no claim against them. There may be now no other creditors of Eldredge than these plaintiffs. The assignee may have sold to the plaintiffs this property fraudulently held. If, however, the defendants Moyer thought that other persons, creditors of Eldredge, represented by the assignee as their trustee, were entitled to share in the property fraudulently held by them, they should have set up this defect of parties. The plaintiffs might then have had an opportunity to show, for reasons above suggested or for other reasons, that there was no such defect. Another reason might exist why the assignee should not be a party. His right of action is limited to two years. (Rev. Stat. U. S., § 5057.) This time begins to run, in a case like this, from his knowledge of the fraud. (Bailey v. Glover, 21 Wall., 342.) If the assignee then had had knowledge of this fraud, soon after his appointment, January 22, 1868, his time for commencing an action would have expired before this present action was commenced, in 1872. If that were so, it could not be claimed that the defendants Moyer would be entitled to retain this property, fraudulently transferred, as against judgment creditors of Eldredge.

If the defendants Moyer had set up this defect of parties, and the plaintiffs had chosen so to do, they could have brought in the assignee as a party to the action. But since this defect was not set up in the answer, and the defendants Moyer went to trial on two issues: that of denial of the fraud, and that of a discharge of the debt: and failed on these; it is too late now for them to setup that the assignee should have been a party.

In Sands v. Codwise (2 Johns., 486), an action was brought by creditors against a bankrupt, making the assignee a party defendant, on the ground of his refusal to prosecute. It was held not necessary to substitute a person who had been appointed a new assignee. Erom this it appears that the fact of the appointment of an assignee is not a bar or defense to the action. It only shows a defect of parties. The cause of action is good enough; only, if the_ defendant so claims, another party should be brought in. But if the defendant waives this, by not setting it up in the answer, then the action proceeds, and the fact that an assignee has been appointed is no defense on the trial.

For it is evident, as above suggested, that there are cases where the assignee would really be only a nominal party; as, for instance, where there were no other creditors but those who had joined as plaintiff's. And we must notice that in this case, the question is not between these judgment creditors, plaintiffs, on the one side and the assignee in bankruptcy on the other. It is between judgment creditors on one side and fraudulent holders of the debtor’s property on the other. The defendants Moyer are not trying to protect other creditors (if there be any) of the bankrupt, but they are trying themselves to keep what they took for the purpose of defrauding creditors. If in good faith they had desired to protect other supposed creditors, they should have averred the appointment and existence of an assignee in bankruptcy (if he has not been discharged of his office), and should have caused him to be made a party.

Whether such an assignee could recover of these plaintiffs, as part of the bankrupt’s estate, the amount of this present recovery, it is unnecessary to inquire. We have only to do with the liabilities of the defendants Moyer to these present plaintiffs under the issues joined herein.

The judgment should be affirmed, with costs.

Boasdmak, J.:

The defense of Eldredge’s discharge in bankruptcy was not available against the plaintiff to Eldredge or the Moyers ; the new judgment, since the discharge, obviates any possible effect of the discharge as to such judgment; that defense was therefore a nullity, and the evidence to sustain it was in fact incompetent and immaterial. Upon the pleadings and proofs, so far as they were effectual and competent, the only issue to be tried was the fraudulent transfer to the Moyers; that is found against the Moyers, and is sustained by th© evidence given upon the trial.

But taking the case as it was tried; plaintiff, as a creditor of the bankrupt, had an equitable interest in his assets. The assignee in bankruptcy may have had the legal title, but the latter was not made a party to the action ; the defendants do not object to that fact by their answer. Why, then, may not the plaintiff recover, at the peril of being compelled by the assignee to account for and pay over the amount of his recovery for ratable distribution among all the creditors, plaintiff being one ? (Ex Parte Foster, 2 Story, 131, cited by Justice BooKEs.)

All the creditors are cestuis que trust, and alike interested in the amount collected ; the assignee is the trustee. I see, therefore, no good reason why the recovery may not be allowed to stand, and the plaintiff be allowed to receive the same, subject to any rights which the assignee in bankruptcy or the other creditors of the bankrupt may have therein. It having been determined that the title of the Moyers is fraudulent, there is very little virtue or propriety in aiding them in retaining the fruits of their fraud, as against a plaintiff who is entitled in equity to the whole or some portion thereof.

I therefore concur with Mr. Justice LbabNED in an affirmance of this judgment with costs.

BooKEs, J.

(dissenting):

It is insisted, in the first place, that the defendants Henry and Betsey Moyer have not well pleaded the proceedings in bankruptcy taken by Eldredge, so as to entitle them to the defense urged, to wit: that the right to maintain the action vested in the assignee in bankruptcy only. Those defendants allege in their answers, in substance, that a decree was duly made in the United States District Court, at a time and place named, by which the defendant Eldredge was discharged from his debts ; and further, as follows: of all which proceedings in said court in bankruptcy for such discharge, the plaintiffs had due notice.” The discharge of the bankrupt was alleged, as was also knowledge by the plaintiffs of the proceedings in bankruptcy .on which the discharge was based; the matter of defense intended to be interposed was distinctly and plainly set forth in the answers, and no objection for informality was raised until on the trial. If the objection was that the answers were indefinite and uncertain in their averments, it should have been put forward by motion. (Code, § 160.) No objection having been interposed to the pleadings until on the trial, the case stands upon the sufficiency of the defense set up in the answers, and evidence in its support was admissible ; even if it were true that those pleadings were obnoxious to objection, had it been raised by motion under section 160 of the Code, or by special demurrer. Again, the United States District Court is not a court of inferior jurisdiction (8 N. Y., 254), nor a foreign tribunal; special averments with a view to show jurisdiction were not, therefore, necessary. Thus it seem that the answers were sufficient under the Code (§ 161) to admit proof of every necessary step required by law to establish the adjudication set forth therein. One of the requisite steps, according to the provisions of the bankrupt law, before a discharge could be granted, was the appointment of an assignee; and the assignment to him, by the judge or register vested in such assignee, the title to all the bankrupt’s property by operation of law. It is urged that the averment of the decree for the bankrupt’s discharge did not include an allegation of an assignment, or change of the title; the decree of bankruptcy, appointment of an assignee, and the assignment to the latter, were necessary incidents of the discharge; no discharge could be granted without‘compliance with these formalities ; they were therefore within the purview of the answers which averred the discharge, with knowledge to the plaintiffs of the proceedings on which it was based, because a necessary ..concomitant of it. What is necessarily understood or implied in a pleading, forms a part of it as much as if it were expressed. (Partridge v. Badger, 25 Barb., 170.) It seems, also, that the referee admitted the evidence as competent under the pleadings; the plaintiffs cannot now insist that this ruling was wrong, and ask that the evidence as admitted be stricken from the case, or be disregarded, for if the evidence had been excluded as incompetent under the pleadings, the defendant could have moved for an amendment. The evidence, however, was received as competent, not in part, but in its entirety, 'and it was taken into consideration by the referee in his decision of the case ; for he finds expressly that under the pleadings and proofs the plaintiffs have a perfect right to maintain this action and further, “ that the defendant, Eldredge, having waived his discharge in bankruptcy, sucb discharge is, under the pleadings in this action, unavailable to the other defendants as a defense, and neither it (discharge) nor the assignment connected therewith, furnishes any bar to the plaintiffs’ right of recovery in this action.” It does not lie with the plaintiffs now, as I think, to insist that the evidence received by the referee as competent, was inadmissible by reason of informality in the pleadings, hence now to be disregarded on the appeal; but in point of fact the banlcrugptey of Eldredge was pleaded, and this was the alleged defense. It was proved before the referee, but was held “unavailable” .because not interposed by Eldredge himself. We are bound, as I think, to accept the case on the pleadings and proofs as it was made before the referee, and accepted by him, and see whether his conclusion (that under the pleadings and proofs the plaintiffs have a perfect right to maintain the action) was sound in law.

It is insisted, and the referee so held, that the discharge of Eldredge was 'personal to himself: a personal privilege which he alone could set up or waive as he might elect. This may be, and probably is so, as regards the right to use the discharge as a protection against legal proceedings, having in view the appropriation of his own property to the payment of his debts. Here, however, the ease is different and of much broader import. The contest here relates to property to which, he has no title whatever — property all right to which has passed to his creditors by operation .of law. In this particular ease, indeed, he could not claim the aid of the court in requiring its application to his debts pursuant to the bankrupt law, nor could he claim any surplus that might remain, arising therefrom, after satisfaction of all his debts, for he has concluded himself, by his fraudulent confederation with the Moyers, from all advantages to himself which otherwise might, by a remote possibility, result to him. Now the discharge must be'considered with reference to all rights given to his creditors, in its acquirement through the proceedings in the bankruptcy court. Those rights exist, beyond his control, by virtue of those proceedings. They are settled and definitely determined by law. As regards the creditors’ rights, he is put aside. To adopt the language of Judge Stoby, the bankrupt act manifestly contemplates that as to all property and rights of property of the bankrupt, and as to all suits in law and equity pending, in which the bankrupt is a party, the bankrupt is to be treated as if he were civiliter mortwus, and all his property and rights of property were vested in the assignee, as his executor or administrator.” So he has no longer any power for good or harm to the creditors. Therefore, whether he waive or assert his privilege, it can in no way affect any person in his claim to the property liable to his debts, hence cannot deprive even a fraudulent holder of his right to show where the title rests, to the end that he may continue in its enjoyment until called upon to surrender it by the person or persons to whom it by law belongs. So the fraudulent grantees in this case may set up and show that the right sought to be enforced by the plaintiffs does not belong to them to exercise. This defense inheres to them. They cannot be deprived of it by any thing that Eldredge may do or may omit to do. They will stand or fall by their own pleading, and the matters of defense therein alleged. So whether Eldredge assert this privilege and set up his discharge, or omit to do so, it in no way affects either his creditors or the Moyers in their rights. And it follows that his confessions of judgment for the debts barred by his discharge cannot operate to their disadvantage. • I understand it to have been repeatedly decided that the debtor’s bankruptcy may be pleaded in bar to a creditor’s bill brought by individual creditors, after bankruptcy, by any of the defendants ; or, which is the same thing, that such defense is available to defeat the action; and this brings us to consider the real and true question in this case. Eldredge’s bankruptcy was pleaded and proved in this action, and it stands certified in the record as a fact found by the referee. Did such fact bar this action by the creditors ? Did the right to maintain this action rest with the assignee in bankruptcy only? The referee held that Eldredge’s bankruptcy did not bar the action by his creditors.- He held that, neither the discharge of Eldredge from his debts under the bankrupt law, nor the assignment connected therewith furnished any bar to the plaintiffs’ right of recovery, as prayed for in the complaint. In this conclusion of law, I think, the learned referee was in error. The.plaintiffs had no lien on the property held by the Moyers in fraud of the rights of the creditors of Eldredge, and by this action sought to be reached and applied in satisfaction of their demands, when the assignment was made to the assignee in bankruptcy, and the transfer became effectual to vest in the latter all the bankrupt’s property, including the right to this property in suit. Now, all rights in regard to this property having vested in the assignee for the benefit of the creditors generally, the latter became, to all intents and purposes, the trustee for all; and it rested with him alone, as assignee to take proceedings against the fraudulent transferees of Eldredge’s property to obtain it and its avails for general and equal distribution. It was well said in Goodwin v. Sharkey (5 Abbott [N. S.], 64, 68), that by force of the bankrupt law, and in virtue of the proceedings taken under it, the assignee represents and has become a trustee for all the creditors of the bankrupt, as well as for the bankrupt himself, and is vested with every right which was possessed either by the bankrupt or the creditors in respect to fraudulent conveyances ; and it was also stated in the same case, that if the property, or the right to recover it, be vested in the assignee in bankruptcy for the epual benefit of all the creditors, it needs no argument to prove that no one creditor can, through the agency of the State laws, obtain a preference over other creditors, or the application of any part of the bankrupt’s property for his exclusive benefit. These views are, undoubtedly, sound, and they are the universal expression of the courts on the subject. (Lowry v. Coulter, 9 Penn. St. Rep., 353; Thurmond v. Andrews, 13 N. B. Reg. Rep., 157; McCabe v. Cooney, 2 Sandf. Ch. [m. p.], 314; 10 B. Mon., 452; Ocean National Bank v. Olcott, 46 N. Y., 12.) The cases all hold that, by virtue of the bankruptcy proceedings, the bankrupt’s property, as well as all rights of creditors touching property fraudulently transferred by him, are brought within the exclusive custody and control of the bankruptcy court. In this way only can an equal distribution among all the creditors be secured. The bankrupt law is based on the principle that “ equality is equity,” and whatever countervails .the object and policy of the law operates as a fraud upon its provisions. So it was laid down in principle by Judge Stoet in Ex parte Foster (2 Story, 131), that if a creditor, knowing of the proceedings in bankruptcy, should, by a proceeding in a State court, appropriate the property of the bankrupt, or its avails, to his individual debt, it would be a fraud upon the law, and he would not be allowed to hold the money thus acquired. . It seems, therefore, well settled, both on principle and authority that, after the debtor is in bankruptcy, no one but the assignee can maintain an action to set aside a fraudulent conveyance made by the bankrupt, or to reach property held by third parties in fraud of the creditors’ rights. This being the settled rule of law, the referee was in error in holding that the proceedings in bankruptcy put in evidence in this case did not bar the action.

It is urged that the assignee has not intervened to obtain the property from the fraudulent holders, and non constat that he ever will take proceedings for that purpose; and that if he does not, or will not, then the fraudulent holders will continue unmolested in the fraud, and the creditors of Eldredge will be wholly remediless in the premises. But this is a mistaken view of the case, as regards the latter branch of the proposition.' In the first place, even if the assignee has omitted his duty, it is enough for the defendants to show that the plaintiffs have no ground of action on the facts charged and proved. However groundless the defendants’ position may be when the righful party demands the property, it is sufficient for them to show that the plaintiffs have no right to it under the proceedings which they have adopted for redress. But while it is held, that the right to proceed to set aside a fraudulent transfer of property by a bankrupt, rests with the assignee, and with him alone in the performance of his proper and lawful trust obligations, still, when he violates those obligations by an inexcusable neglect, or willful omission of duty in that behalf, the creditors have an ample and efficient remedy. Their position is like that of creditors of a deceased debtor. It is the duty of an executor or administrator of a deceased debtor, whose estate is insolvent, to impeach the sale of personal property made by the deceased with intent to defraud creditors, and recover the same from the fraudulent vendee; and ordinarily a creditor of the estate cannot maintain an action against such fraudulent vendee alone, or against him and the executor or administrator to set aside the fraudulent transfer and have the property held under it, administered as assets to pay debts. Yet, if the executor or administrator collude with the fraudulent vendee, or after reasonable request refuse to take proceedings to impeach his title and reach the property in his hands, a creditor may maintain an action against him and the executor or administrator for that purpose. (Bate v. Graham, 11 N. Y., 237.) There-was a similar ruling in the early case of Sands v. Codwise (4 Johns., 536), which, in many of its features resembles- the one in hand. That was an action in equity by the creditors of Comfort Sands to set aside various fraudulent transfers of property, and to have the property and its avails applied on their claims and demands. Sands had been put in bankruptcy, and one Kibbe had been appointed assignee, in whom all rights of property pertaining to the bankrupt and his estate, had vested. In that case, unlike this one at bar, the assignee, Kibbe, was made a party defendant; and in order to give the case standing m court, it was charged against Kibbe, that the complainants had applied to him for permission to use his name in such proceedings at law or in equity, as should be necessary for the creditors of Sands to obtain justice, and to have the property, which had been fraudulently conveyed or concealed, applied to the payment of his debts, and had offered, in case he would consent, to indemnify him against all costs and expenses; but that Kibbe declined, and took no steps to get possession of the property so conveyed. Kibbe appeared in the suit and answered the complaint. He admitted that upon application of the complainants, he had refused to prosecute the suit, but insisted that if the deeds should be set aside, then the proceeds of the estate should be paid to him, to be distributed according to law. The court sustained this claim of the assignee. It was decided, (1) that the creditors could maintain the action, but only through the assignee’s title by making him a party, and on the ground that he had neglected or violated his duty as assignee in refusing to prosecute the action himself ; and (2) that the avails of the property obtained under the proceeding should be paid over to him for general distribution among all the creditors, according to the provisions of the bankruptcy act. In this case the objection that the action could not be maintained, because the creditors could not be admitted to substitute themselves for the assignee, was answered by the chancellor thus: that being interested in the fund intrusted to the management of the assignee, and the latter having neglected or refused to do the duties legally imposed on him, the creditors might pursue their interests by bringing the action themselves at the peril of costs, and he puts the right to maintain the action by the creditors expressly on this ground. In another part of the opinion the chancellor further remarked as follows: “If the defendant, Kibbe, had not grossly neglected bis duty as assignee, the latter must, of course, as the legal organ, constituted under the laws of the United States to manage the interests of the creditors, retain the power of managing it in his discretion for the benefit of those creditors generally; for the right of the complainants (creditors) to prosecute, must originate in some palpable neglect or positive refusal of the assignee to perform a duty apparently in advancement of the trust, as to the precise subject in which the creditors collectively seek to establish their rights;” and he adds, it was not pretended that the Court of Chancery could change the assignee; all that could be expected was to enable the parties in interest to enforce the rights which the assignee was disinclined, either from negligence or sinister motives, to give, effect to;” so the action was upheld on the ground of necessity, in order to prevent a failure of justice. This was also the basis of the decision in Bate v. Graham (supra); these views of the chancellor received the sanction of all the members of the Court of Errors who took part in its decision. Judge SeeNoee, in a few terse sentences, put the case in a clear light; he observed, that whenever an assignee declines to act, the creditors have a right to institute a suit for the benefit of all the creditors; by the law of the United States, the property of the bankrupt is vested in his assignees; the conveyances being adjudged fraudulent and void, the property remained in Comfort Sands, and by the bankrupt law became vested in his assignees; the conveyances were void at common law, but the Court of Chancery had a concurrent jurisdiction, it being a case of fraud, and the application to that court was merely for the purpose of avoiding the conveyances. It does not follow that because the Court of Chancery had this cognizance of the cause, it is to take the property out of the hands of the assignee and place it in the hands of a master; having disencumbered the estate of the conveyances, the property remained as if those deeds had never existed, and being vested by the law of the United States in the, assignee, no court cam divest it.” I have quoted freely and perhaps needlessly from this case, but it seemed to me that the great similarity between that and the one in hand, on the facts, gave pertinency and directness here to the remarks and line of reasoning of the distinguished jurist who had the case under consideration. The only difference between the two cases on the facts is this, that here the bankrupt confessed judgment on the discharged debts. But this, as we have seen, could not in any way affect his creditors in their rights, secured to them by the bankruptcy law. As said by Judge Stoey, as to those rights he was cwiliter mortuus ; hence, the galvanizing of him into activity, was impotent to defeat the provisions of the law. It is urged that in the ease now before the court, the absence of the assignee from the record only raises a question of defect of parties plaintiff, or defendant, and the objection that there is a defect of parties must be deemed waived because not raised by answer. But it must be held in mind (the bankruptcy proceedings being in evidence) that the plaintiff’s claim or right to the property, sought to be reached in this action, is solely and only through the assignee. This is the defense in the action. The defendants set up and prove the bankruptcy proceedings to establish the defense, to wit: that the plaintiffs have no right of action save through the assignee and under his title or right. This was held in the case above cited (Sands v. Codwise.) It was there held that the creditors of the bankrupt might maintain the action, but only through the assignee and his title; and bn distinct and issuable averments in the complaint that he had neglected or violated his duty. Therefore, in the absence of the assignee from the record, and without such averment, the plaintiffs fail to show any right in themselves, to take the proceeding. The chancellor said, and sustained the right of action on this ground, that the right of the creditors “ to prosecute must originate in some palpable neglect or positive refusal of the assignee to perform his duty.” This is the doctrine laid down in Bate v. Graham. It was there held, in substance, that the action could not be maintained by the creditors, except upon the fact proved or admitted by the pleadings, that the administrator was acting collusively, or in some way in violation of his duty, and to save the case, force and effect was given to his answer, wherein he denied that the assignment sought to be impeached, was made or executed with fraudulent intent. The difficulty in this case is therefore of a more serious character than is one resting simply on a defect of parties. It reaches the plaintiffs’ right to take the proceeding; goes to their right to maintain the action; such right, under the proof in this case as it now stands, rests with the assignee solely. Until it be made to appear that he has refused to prosecute, or has in some way so conducted that the right to prosecute has been cast over to the creditors, they are without right of action, and it may be here added that if the right had been so cast over to them, they must effectuate their purpose of reaching the property in controversy throagh the assignee and his title or right. There is nothing in the pleadings, or in the'proof, showing a transfer to the creditors of a right of action; nor was the case tried, nor is it now presented for our consideration, on any such hypothesis. As above suggested, the difficulty is not merely one growing out of a defect of parties plaintiff or defendant, but it reaches the right of the plaintiffs to maintain the action on the theory of the complaint, on which theory it was tried and decided by the referee. The conclusions herein above reached, if sound, require a reversal of the judgment appealed from. I am of the opinion that on the facts here proved, the creditors of Eldredge could not maintain this action to reach the property in controversy, or its avails, except through the assignee in bankruptcy, under his' title and rights as assignee, on the ground that he had neglected or refused to perform his duty in that behalf; and further, that the avails resulting from a successful prosecution of the suit would belong to all the creditors, for distribution according to the provisions of the bankrupt law.

Judgment should be .reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.


author: Bockes, J.: LearNed, P. J., LearNed, P. J.:

text:
    WILLIAM D. COLE and JOSEPH S. COLE, Appellants, v. WILLIAM S. GOURLAY and JOHN GOURLAY, Respondents.

      Concealment of will by heir — 1 JR. 8., 749, § 8 — rights of bona fide purchaser from heirs, in ignoi'ance of will — •Bale of infants real estate — jurisdiction of Court of Chancery — execution of power.

    That portion of section 3 of 1 Revised Statutes, 749, which provides that where a will or codicil containing a devise shall have been concealed by the heirs of the testator, or some one of them, the limitation contained in that section shall not commence until after the expiration of one year from the time when such will or codicil shall have been delivered to the devisee, or his representatives, or to the proper surrogate, applies only to cases of concealment which leave the devisees in ignorance of the will and of their rights under it, and not to cases in which the will has come to the knowledge and possession of the devisees, or of those representing them, and is afterwards stolen or taken from them surreptitiously and secreted or destroyed.
    In 1886, the plaintiffs’ testator died leaving a last will and testament, by which he devised a life estate in certain premises to his wife, with remainder to his two sons, the plaintiffs herein. In the early part of 1841, one of the plaintiffs clandestinely removed the said will from his mother’s trunk and concealed the same until 1855, when it was presented to the surrogate for probate. In the year 1841, proceedings were instituted in the Court of Chancery for the sale of the interests of the four minor children of the testator in the said premises, no mention being made therein of said will, and, in pursuance of an order of that court, the same were conveyed by the guardian of the infants and by the widow to one Sherman, who was a bona fide purchaser without notice of the will. The widow having died, this action was brought by the plaintiffs as devisees under the will to recover the premises from the defendants, who claimed the same as grantees of Sherman. Held, that this was not a case of the concealment of a. will, provided for in the exception to said section 3, and that, as the will was not recorded within four years after the death of the testator, the title of the defendants was not defeated thereby.
    By the will, the testator appointed his wife executrix thereof, and authorized her to sell and dispose of the real estate, if necessary, for the support and maintenance of the children. Held, that her joining with the guardian of the minor children, in the deed of bargain and sale, delivered to the purchaser, must be deemed a valid execution of the power of sale conferred by the will. (Per Learned, P. J., and Boardman, J.)
    In proceedings instituted in the Court of Chancery, under the provisions of the Revised Statutes, relating to the sale of .the real estate of infants, it is not necessary that the infants themselves should join in the petition, it is sufficient if the application be made by their next friend or guardian.
    Where the order made in such proceedings requires the conveyance to be executed by the guardian in his own name and not in that oí the infants, and a deed is accordingly made in compliance with the terms of such order, such deed is valid and effectual to pass the title of the infants.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    This was an action of ejectment brought to recover the possession of certain land in the city of Ogdensburg.

      W. H. Sawyer, for the appellants.

      Geo. Morris, for the respondents.
   Bockes, J.:

If full force and effect be given to the will of Joseph Cole, the plaintiff’s right of action is well established. Joseph Cole being seized of the premises, devised them to his wife Anna, for life, with remainder over to his two sons, the plaintiffs. Anna died October 30, 1873. The plaintiffs thereupon became entitled to the possession. But this is not the whole case. The 'testator died February 5, 1836, leaving him surviving, his widow, Anna, and four children, all minors, of whom the plaintiffs were two. In 1841 an application was made to the Court of Chancery, in behalf of the infants, for a sale of the premises, in which application the widow joined. This proceeding was taken on the hypothesis that the deceased died intestate, and was carried through to a sale, when one Socrates N. Sherman became the purchaser. The deed to Sherman bore date June 1, 1841, and was executed by the widow and by the guardian appointed by the court, to convey the interests of the infants. Sherman entered and occupied under his deed until 1846, when he conveyed to William Kendrick, under whom the defendants claim.

The will of Joseph Cole, above alluded to, was taken by the plaintiff William D. Cole from his mother’s trunk, clandestinely, in the early part of the year 1841, and was retained, concealed by' him about his person, until presented to the surrogate for probate, in 1855.

Now the defendants insist that they hold under a purchaser in good faith from the heirs at law of the testator, hence that the will is inoperative against them under the statute which provides as follows : 1. The title of a purchaser in good faith, and for a valuable consideration, from the heirs at law of any person who shall have died seized of real estate, shall not be defeated or impaired by virtue of any devise made by such person of the real estate so purchased, unless the will or codicil containing such devise shall have been duly proved as a will of real estate, and recorded in the office of the surrogate having jurisdiction, or of the register of the Court of Chancery, where the jurisdiction shall belong to that court, within four years after the death of the testator, except: 1. Where the devisee shall have been within the age of twenty-one years, or insane, or imprisoned, or a married woman, or out of the State at the time of the death of such testator. Or, 2. Where it shall appear that the will or codicil containing such devise shall have been concealed by the heirs of such testator, or some one of them. In which several cases the limitation contained in this section shall not commence until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative^ or to the proper surrogate.” (1 R. S., 749, § 3.)

It is certified as a fact in the record that neither Sherman nor Kendrick had knowledge of the will until after their purchase respectively, and it appears that such purchases were for valuable consideration. Each of them may, therefore, insist on the limitation declared in the statute cited, conceding that the deed to Sherman was a valid conveyance in law to pass the interest of the heirs of the testator in the premises; which subject will be hereafter considered. It is insisted, it is true, that Sherman purchased with knowledge of the existence of the will, but the evidence fails to show this. According to one of the witnesses, he admitted knowledge of the will soon after his purchase, but it is not proved that he knew or had notice of its existence when he purchased. I think it must be accepted, as certified in the findings of fact, that both Sherman and Kendrick purchased without knowledge of the existence of the will. But if Sherman was a bona fide purchaser for a valuable consideration, those taking title under him may have the benefit of his position, even though they might have purchased with notice. (Webster v. Van Steenbergh, 46 Barb., 211; Wood v. Chapin, 13 N. Y., 509.) Admitting then that Sherman was a bona fide purchaser from the heirs for a valuable consideration, tbe next question is whether the limitation prescribed by the statute cited, has application to this case, and bars the plaintiffs’ claim as devisees under the will.

In order that the will should have effect against a purchaser in good faith for value, from the heirs at law of the testator, it must have been recorded in the office of the surrogate having jurisdiction within four years after his decease: except (1), when the devisee shall have been a minor; (2), or insane; (3), or imprisoned ; (4), or a married woman; (5), or out of the State at the time of the testator’s' death; (6), or when it shall appear that the will containing the devise shall have been concealed by the heirs of the testator, or some of them; in which several cases the limitation shall not commence until after, the expiration of one year from the time when such disability shall have been removed; or the will shall have been delivered to the devisee or his representative, or to the proper surrogate. None of the above exceptions can have application here, save those marked (1) and (6). Let us then examine the case with a view to these two exceptions.

As to the first, the devisees (the plaintiffs) were within the age of twenty-one years when the testator died; therefore the limitation of four years would not commence to run against them until one year from the time the disability from-infancy was removed in their eases respectively. The eldest became of age on the 13th of October, 1844, and the youngest on the 26th of June, 1847; now if the additional year be given to the four years limitation, then the full limitation of' five years had expired after the disability was removed (even as to the youngest) before the will was recorded in the surrogate’s office. The youngest became of full age June 26th, 1847 ; the will was admitted to probate and recorded April 5th, 1855 ; a period intervening of nearly eight years. Thus it seems that if effect be given to this exception, and an additional year be allowed, then the will became inoperative as against Sherman and those claiming under him, because not recorded within five years from the time the plaintiffs became of full age, conceding, of course, that he was a bona fide purchaser for value from the heirs.

Then how stands the case as regards this statute of limitations, in view of the other exception supposed to be applicable to it ? Has this exception any application to the case in hand ? In case of a concealment of a will by heirs, the limitation provided by this statute would not commence, under the above exception, marked (6), until one year from its delivery to the devisee or his representative, or to the proper surrogate. The concealment alluded to in this exception has reference to a concealment at the time of, or succeeding, the decease of the testator; a concealment of the instrument from the devisees by an heir, by depriving them of knowledge of its existence.' This exception has no application to a case where the will has come to the knowledge and possession of the devisees, or of those representing them, and is afterwards stolen, or taken, from them surreptitiously and secreted or destroyed. If taken and secreted or destroyed under such circumstances, the law affords relief at once against the wrong-doer. (2 B. S. [1st ed.], 67, § 63; 5th ed., p.' 153, § 86; Harris v. Harris, 26 N. Y., 433; Schultz v. Schultz, 35 id., 653.) But this exception was intended for a case of concealment which should leave the devisees in ignorance of the will, and of their rights under it. Then did the will in this case come to the possession of the devisees, or their representatives, on or after the decease of the testator, and before it was taken and secreted by the heir ? It seems that it was delivered to the widow, who was devisee of a life estate thereunder, and executrix therein named, at some time immediately after (perhaps before) the death of the testator; it is proved to have been in her possession, in her trunk with her papers, in 1841. Did she have it in her possession knowing of its existence as the last will and testament of her deceased husband? It would be remarkable, indeed, that she should have it in her trunk with her papers years after her husband’s decease, and not know of its existence ; and on the other hand it is somewhat remarkable that she should, knowing of its existence, join in the application for the sale of her children’s interest in the property, as if her late husband had died intestate, swearing to the petition ; when, too, a power of sale was given her in the will, in ease a sale should be found necessary for the support of the minors ; and further, that her interest in the premises was greater under the provisions of the will than it would be in case of intestacy. But on looking into the petition it will be seen that it is not stated that the deceased died intestate, except inferentially from the averment that the infants were each entitled to an undivided fourth part by inheritance from their father, subject to their mother’s right of dower. Nor does the fact that William took the will clandestinely from his mother’s papers, prove that she did not know it was there; and further, it seems that its existence, and her possession of it, were known somewhat publicly, as is shown by the conversation in regard to it between Sherman and Gourlay, which conversation was had about the time of Sherman’s purchase; and William knew of its existence and. of his mother’s possession of it, for he sought it out from among her papers and carried it away. It may be suggested by way of explanation of her action as regards the sale, that being aware of the fact that the will had been purloined, she joined in the application, under the supposition that its surreptitious removal and possible destruction, created a case of intestacy. On the whole the evidence tends to support the conclusion, and as I think this conclusion must be accepted as established, that the widow had the will in her possession, knowing the fact that it was her late husband’s last will and testament, before, and probably for a long time before it was purloined by her son. Indeed the finding of fact in the record, is substantially to this effect. It it there certified that William took the will from his mother’s custody and retained it until April, 1855. The widow was the proper person to have its' custody. She was devisee thereunder; was named in it as executrix; and represented the minors, being by law their natural guardian. (2 Kent, 219.) This case was therefore one of a stolen will; or of a will taken clandestinely from its proper custodian (its existence being known to the latter), long after the decease of the testator; and not a case of concealment within the purview of the exception above cited. Again, if within the purview of this exception, then W illiam certainly would be concluded by the limitation. It came to his possession, he being devisee, in 1841; and if given the full term of five years thereafter, or even five years after he obtained his majority, that time had elapsed before the will was probated. Thus it would not be operative in his favor against a bona fide purchaser from the heirs of the testator, in this view of the case. If it be suggested that it was not delivered ” to him, hence not within the letter of the law, the answer is ready and conclusive that his position is no better than it would be in case he had come to its possession fairly by delivery, rather than by a dishonorable and culpable act. But as above stated we are of the opinion that this is not a case of the concealment of a will within the exception cited.

It follows from the conclusions above reached, that if Sherman was a purchaser in good faith for value from the heirs, then his title cannot, nor can the title of those claiming under him, be defeated or impaired by the devise to the plaintiffs, contained in the will under which they claim. The limitation declared in the statute must be held to defeat this claim. It has been already stated that both Sherman and Kendrick were ionafide purchasers, in so far as they purchased without knowledge of any adverse claim, and paid value, and that Sherman was to be deemed a purchaser from, the heirs of Joseph Cole, in case the deed of conveyance to him shall be held to transfer their interest in the premises. This point remains to be considered. It is insisted that the deed by the guardian of the plaintiffs to Sherman was, and is, as to them, of no effect and void; that the proceeding in the Court of Chancery, pursuant to which the sale was had, was without jurisdiction. Several of the papers in the proceeding do not purport to have been signed by the proper party or officer. It is said that this objection rests on a misprinting of the case, but they became records of the court, and they were introduced as such, and were not objected to oh the trial as defective in this particular. They cannot, therefore, be excepted to here, on that ground. How stands the case on the question of jurisdiction ? The proposition is a sound one, that the Court of Chancery had no inherent jurisdiction to direct a sale of infant’s real estate, and that its authority in that regard was derived solely from the statute. The statute provides that any infant seized of any real estate may apply to the court for its sale or disposition, and authority is given the court to order such sale and disposition, whenever it shall be made to appear satisfactorily to it that its disposition is necessary and proper, (1) for the support and maintenance of the infant or for his education; (2) or that the interests of the infant required or would be substantially promoted by such disposition, because of its exposure to waste or dilapidation; (3) or because wholly unproductive; (4) or for any other peculiar reason or circumstance. (2 R. S., 194, §§ HO, 115.) And the general mode of procedure is there given; And it is further provided that all sales, etc., made in good faith, pursuant to the order of the court, shall be valid and effectual, as if made by the infant when he became of full age. Now the purchase by Sherman, in this case, and the conveyance to him, if within the authority of the statute, was, in legal effect, a purchase from the plaintiffs themselves. It is urged that the petition was informal and fatally defectiye, because the plaintiffs, then infants, did not join in it. But the statute does not require that the infants should join in the application personally. It declares that the application may be made by next friend or guardian. Nor is any particular form of application necessary in order to confer jurisdiction on the court, when the substance is given, so as to meet and answer the general requisites of the statute. (32 Barb., 48; 28 How., 408.) And even if the rules of the court, adopted to guide the practice, were not complied with, jurisdiction would not be lost, in case of a substantial compliance with all provisions óf the law. In this case the application was made by a party representing the infants as their next friend, and in substance and effect (according to its statements), it was an application by the infants, or on their behalf. In this respect, therefore, there was a substantial compliance with the requisites of the statute. The petition stated the age, residence and condition of the infants ,• that they had no personal property, nor any real estate whatever, except that sought to be sold; that this was not worth over $600, exceeding the widow’s dower therein; that its annual income did not exceed twenty-five dollars; and that partition was threatened. There were some other facts stated, supposed to bear on the question of the necessity and propriety of a sale. But it is quite manifest that the facts above given were sufficient to call for the exercise of judicial discretion, and to support the judicial conclusion declared. The court, therefore, acquired jurisdiction in the premises. So, too, it appears that there was, as regards the subsequent proceedings, grounded on the original petition, a substantial compliance with the requirements of the statute. But it is urged that the deed was not well executed; in this, that it was not executed in the name of the infants. It was, however, executed pursuant to the order of the court, which had authority to direct the mode of its execution, and the form of its execution was in strict compliance with such directions.

In conclusion, then, it seems that the court had jurisdiction to direct the sale, as appears from the record; and that all the substantial requisites of the statute in the application and subsequent proceedings to the execution and delivery of the deed to Sherman, were complied with. The plain tiffs- were, therefore, divested of their title by those proceedings and the sale and conveyance made in pursuance of them; unless they may interpose the will as a basis of title; and this we have seen they cannot do, because it was not probated and recorded within the limitation required by law, to make it available to them against a bona fide purchaser from the heirs of the testator.

There are other points urged by the counsel for the respondent, on which he supposes the judgment appealed from should be sustained, to wit: that the sale and conveyance under the order of the court was effectual to pass the interests of the plaintiffs, regarding them as devisees under the will; also, that the deed being executed by the executrix should be held to be an exercise of the power of sale under the provisions of the will. But if correct in the conclusions above reached on the other branch of the case, these points need not be considered.

Judgment affirmed, with costs.

LearNed, P. J.,

concurred in the foregoing opinion, and also held that the deed by the executrix gave title as an execution of the power contained in the will.

BoaedmaN, J., concurred in the opinion of Bocees, J.; also in the view expressed by LearNed, P. J.

LearNed, P. J.:

.The will of Joseph Cole gave to Anna a life estate in the premises, with power, if necessary, for the support and maintenance of the children before they became of age, to sell and dispose of the said real estate.

Before they were of age she executed to Sherman a deed of grant, bargain and sale of the premises in fee, and of all the right of the parties of the first part therein. In this deed Joseph Arnold, as guardian of the infants, and Hiram Wood, husband of one of the infants, joined as grantors.

Every instrument executed by the grantee of a power conveying an estate, * * * which such grantee would have no right to convey * * * unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein. (1 R. S. [5th ed., m. p.], 737, § 144.)

The deed does not purport simply to release dower. It is a conveyance in fee, executed by Anna Harrington, the widow, and by the others above named. She could have conveyed in fee only by virtue of her power. The conveyance must be deemed a valid execution thereof.

Deeds of bargain and sale are to be deemed grants. (1 R. S. [5th ed., m. p.], 739, § 162.) Every grant is conclusive as against the grantor. (§ 163.)

She had power to sell. She intended to join in giving Sherman a good title, and in order to give him a good title she executed the deed. It would be most inequitable, since it has been discovered that she might have executed a valid deed in fee alone, to hold her deed ineffectual, because two other persons joined as grantors;

Eor these reasons I concur in the result that the j udgment should be affirmed with costs.

Present — LeaRNEd, P. <!., Bocees and Boardman, JJ.

Judgment affirmed, with costs.