author: Robertson, J.

text:
    Zachary Peck, plaintiff and respondent, vs. Eliza J. Brown, defendant and appellant.
    In. an action brought by the plaintiff to quiet his title to land conveyed to him. by the defendant’s husband in trust to pay debts, wherein besides seeking the relief granted by the statutory provision for enforcing the determination of claims to land, (2 M: S. 313, § 3,) the complaint demanded as relief that such title might be “ adjudged free and clear from any right claimed by the defendant,” and she set up as a defense a prior right under a deed with full covenants, of the same premises, executed directly to her by her husband, (before the conveyance thereof to the plaintiff, under WHick the latter claims,) pursuant to a prior agreement between herself and her husband for a valuable as well as a godd consideration, with intent to vest in the defendant the fee simple absolute of such land and settle the same upon her as a provision for her, and as her separate estate, it being suited to the means and liabilities of the husband at the time. On demurred to an ariswer containing such defense, Held,

    1. An action under such a provision is subject to the same rules as any other action, by the Code of Procedure. The same defenses may be set up therein, and equitable relief may be demanded by way of counter-claim in the answer.
    2. The Vóidness at laW of a deed directly from a husband to a wife does not interfere with the equitablé rights of the latter under it.
    3. The statute of 1849, which excludes a gift from a husband to a wife from the cases in which it bestows on the latter the powers of a feme sole, does not interfere with the exercise of an equitable jurisdiction to protect the wife in such a case as a ward in chancery or cestui que trust of the husband.
    4. The equity of the wife in such case, if enforceable only as a trust, is not included in the ■ prohibition by the Revised Statutes of any other uses and trusts in land but those therein enumerated, as it is created by implication of law; which kind of trusts are expressly excepted from such prohibition.
    5. That as the demurrer admitted" such a settlement to have been suited to the means of the husband; made for a valuable as well as a good consideration and in pursuance of a previous agreement, equity would sustain it against even the creditors of the husband.
    6. That the accomplishment of all the purposes of a trust, which destroyed all the interest of the trustee thereof in the land held by him, might be set up as a defense to any action brought by him to litigate the claims of others to such land.
    (Before Robertson and Gabvin, JJ.)
    Heard December 12, 1863;
    decided February 13, 1864.
    Appeal from an order sustaining a demurrer to the second, third and fourth defenses of the answer.
    The complaint alleged that on the 22d of October, 1855, William H. Brown, owning four lots in Twelfth street, Hew York, conveyed the same in fee to the plaintiff in trust; that he has always since been, and is now, the owner of the same in fee and in possession ; that the defendant claims title in fee to a part of the premises ; and the plaintiff prayed that his title might he adjudged to be free from the defendant’s claim, &c.
    The answer, besides a general denial, set up three separate defenses, viz : 2. The defendant alleged (as her second defense) that William H. Brown was her husband; that on the 11th day of July, 1849, he owned the premises now claimed by her; that he was then possessed of great wealth, and of property far beyond the amount of his debts and liabilities; that before •and after this time she released her dower in large tracts of real estate mortgaged and conveyed by him; that thereupon “in performance of an agreement with her said husband to that effect, and in consideration of love and affection towards her, and of good and sufficient other meritorious, valuable, and pecuniary considerations, &c., for the purpose of applying the same to her separate use,” on the 11th of July, 1849, (being six years before the alleged trust conveyance to the plaintiff,) her husband conveyed the premises in question, with others, to her, in fee, by deed, “ with full covenants of warranty and further assurance; ” that this deed was at once recorded on her behalf, and she “ immediately entered into possession ” of all the property so conveyed, and “ had and enjoyed to her sole separate use all the rents and profits thereof, at all times since, (being- upwards of six years,) until after the death of her husband intestate, October 27, 1855,” (such death being five days after the alleged conveyance to the plaintiff;) that the settlement of this property to her separate use “ was no more than a reasonable provision for her by her husband, in 'view of his pecuniary circumstances, and was so meant and intended in good faith by him ; ” and that by reason of these matters, she was sole owner of the premises in question, claimed by her.
    3. The defendant alleged, (as her third defense,) that the plaintiff’s alleged conveyance, was a general assignment of the property of W. H. Brown, made for the benefit of creditors existing at its date, (October 22,1855 ;) that all. of the claims of such creditors arose long after his deed of conveyance to the defendant; that the assignment to the plaintiff does not purport to convey the premises in question ; that it did, however, convey to the plaintiff a large amount of other property, sufficient to pay all the creditors of W. H. Brown, without selling any of the property mentioned in the complaint; that the plaintiff had already sold and converted into money, the greater part of the assigned property; that he now has in his hands, more than sufficient money arising therefrom, to satisfy all the debts of W. H. Brown; that moreover, the greater part of the debts' existing at the time of the assignment, were barred by the statute of limitations ; that W. H. Brown died five days after the assignment; that the defendant was in the following month appointed his administratrix ; that no property of his “estate has yet come to her possession; that the trusts of the plaintiff in the premises described in the complaint, have been executed, and his alleged title to the lands in question has ceased; that said lands, (except as conveyed to the defendant,) have decended to Arthur J. and William H. A. Brown, sons and the heirs at law of the said W. H, Brown ; and that the plaintiff prosecutes this action without their consent, and has no right of action in the premises.
    4. The defendant, (as her fourth defense,) by way of counterclaim, reiterates the allegations so set forth in the second and third defenses, and besides alleges that W. H. Brown, having in July, 1849, conveyed to her specifically, by deed, with full covenants, the premises she now claims, (for good and valuable considerations,) with intent to settle the same upon her as her separate estate, and to vest in her an absolute estate therein, in fee simple, as before mentioned; afterwards, in October, 1855, he made a general assignment to „the plaintiff, in trust, of “ all his lands and tenements that lately, the plaintiff had set up a claim under this assignment to the premises so conveyed to her by deed, and claims to • exercise acts of ownership over the premises, and to exclude the defendant therefrom, and to sell, and convey, and transfer, a valid title thereto, and give possession, &c. in derogation of the defendant’s deed and title, and her equitable rights and claims.- And the defendant prayeth, by way of equitable counter-claim, that through the equitable powers of this court it might be deemed that W. H. Brown, by his deed, intended to convey said premises to, and settle the same upon her, and that she is thereby vested with a freehold estate therein, against any claim of the plaintiff, under the assignment aforesaid, &c,
    To these three defenses the plaintiff demurred generally, on the ground that they “ do not constitute a defense/’

      A. Mathews, for the appellant,
    I. The plaintiff having instituted an “ action ” by “ summons and complaint,” to compel the determination of the defendant’s claims to the land in question. She has a right to set up her defenses, whether legal or equitable, either in avoidance, or by way of counter-claim, the same as in any other action,
    1. The “special proceeding,” authorized by the Revised Statutes on the subject of “ the determination of claims to real property,” (in order to enforce the rights thereby created,) is so far modified by the Code of Procedure, that in every action “ by which a party prosecutes another for the enforcement or protection of a right,” which is given by the provisions of this statute, the pleadings on both sides must be subject to the same rules as govern in all other actions. (2 R. S. 312, § 1. Code, § 2, 449, 468 ; § 69, 140, 149. Hammond v. Tillotson, 18 Barb. 332. Mann v. Provost, 3 Abb. 446. The Mayor, &c. v. Stuyvesant, 1 N. Y. Rep. 44.)
    2. Whether, therefore, the plaintiff’s complaint is regarded as a legal action to enforce and protect his alleged right, as created by the Revised Statutes, or an equitable action to remove the defendant’s deed as a cloud upon his title; in either case the “ defendant may set forth by answer as many defenses and counter-claims as she may have, (connected with the subject of the action,) whether they be such as have been heretofore denominated legal or equitable, or both.” (Code, § 150. Crary v. Goodman, 12 N. Y. Rep. 266. Phillips v. Gorham, 17 id. 270.)
    II. In the construction of the language employed by the defendant in her answer, in the “ statement of new matter, constituting her defense or counter-claim,” the court will (on this demurrer) indulge in no presumption against, her claim ; but, on the contray, will make the most liberal inferences to sustain the defenses and counter-claim intended to be set forth.
    The demurrer reaches no defect in the answer (if any there be,) unless it is made to appear that, conceding all the facts therein stated to be true, they do not, “ under any view of them,” “ constitute any defense or counter-claim, whatever,” or .the “elementary constituents” of a defense or counterclaim. (Richards v. Edick, 17 Barb. 260. Graham v. Cam

      man, 5 Duer, 697. The People v. The Mayor, &c. 8 Abb. Pr. 10. Butterworth v. O’Brien, 24 How. Pr. 440.)
    III. The third defense does not, upon its face, constitute a defense to the plaintiff’s action, because it shows the plaintiff is not “ the real party in interest,” in respect to the cause of action alleged in the complaint. (Code, §§ 111, 144. Palmer v. Smedley, 28 Barb. 438.)
    1. Assuming the facts stated in the complaint to be true, yet, as (by reason of the allegations in the third defense) the plaintiff’s trust, in respect to the lands in question, has been fully performed, he is now functus officio, and all his interest in the lands in question has ceased, and the legal title thereto has descended to the heirs at law of W. H. Brown, deceased. (1 R. S. 730, § 67. Parks v. Parks, 9 Paige, 107. Bellinger v. Shafer, 2 Sandf. Ch. 293.)
    2. Upon the same assumption, if by reason of the plaintiff’s having taken the lands upon trust, to sell them for the benefit of the creditors of W. H. Brown, deceased, they are to be treated in equity as converted into personalty, and distributable as such, then they pass to the defendant, as the administratrix of W. H. Brown, deceased, and the plaintiff has no title. (2 Story’s Eq. Juris. § 1212. Bunce v. Vander Grift, 8 Paige, 37. Stagg, Ex’r &c. v. Jackson, 1 N. Y. Rep. 206.)
    3. To enable the plaintiff to maintain this action he must prove the essential allegation in his complaint, that he is “lawfully seised and possessed of the premises in question, as owner in fee.” The third defense distinctly puts this fact at issue, by alleging the plaintiff’s title to have ceased, and the lands to have vested in other persons.
    IV. The second defense is a complete answer to the complaint. The facts therein stated, establish an equitable title to the lands in question in the defendant. It is the duty of a court of equity to give it full effect, and recognize its .validity.
    1. The facts set forth in the defense, fully entitle the defendant to invoke successfully the equitable powers of this court to establish her claim to the premises in question.

      2. The well settled rules governing courts of equity for upwards of a hundred years, in determining the rights of married women, in their dealings, concerning property, with their husbands, also entitle the defendant to invoke successfully the equitable powers of this court to establish and confirm her title to the premises in question. (Planning v. Stiles, 3 P. Wms. 335. Lucas v. Lucas, 1 Atk. 270. Shepard v. Shepard, 7 John. Ch. 57.)
    Courts of equity will surely sustain and give effect to a conveyance of property, or deed of land, from a husband directly to his wife (against his heirs at law or assignee,) as a reasonable settlement for her, where the quantum thereof is suitably proportioned to his estate, and the consideration is meritorious, and no claims of creditors intervene, and the intention of the parties is clearly expressed. (Shepard v. Shepard, 7 John. Ch. 57. Wallingford v. Allen, 10 Peters, 583. Simmons v. McElwain, 26 Barb. 419. Winans v. Peebles, 31 id. 380.)
    The uniform language of courts of equity, for upwards of 100 years, furnishes unmistakable evidence of an unvarying principle of action, under which the defendant has a right to have her title sustained in this court as valid and effectual. (See Lucas v. Lucas, 1 Atk. 271. Arundell v. Phipps, 10 Ves. 148. Walter v. Hodge, 2 Swanst. 112. Shepard v. Shepard, 7 John. Ch. 60. Wallingford v. Allen, 10 Peters, 594. Garlick v. Strong, 3 Paige, 452. Neufville v. Thomson, 3 Edw. 93. Strong v. Skinner, 4 Barb. 552. Simmons v. McElwain 26 id. 422. Winans v. Peebles, 31 id. 380.)
    Y. .The fourth defense sets forth a good cause of action, by way of counter-claim against the plaintiff, which is a perfect bar to the action.
    1. The defendant, wishing to have established her equitable estate in the premises in question, and to have the apparent claim of the plaintiff and his alleged legal estate removed as an existing cloud upon her title, has a right to demand the interposition of a court of equity .to shield her against the plaintiff’s unjust action. (Tisdale v. Jones, 38 Barb. 523.)

      2. This being her right, it became her duty, when prosecuted by the plaintiff, to set up these matters, by way of counterclaim in this action, (if she desired to invoke the equitable powers of the court,) and not to vex the plaintiff with a separate action. (Hunt v. Farmers’ Loan and Trust Co., 8 How. Pr. 416. Foot v. Sprague, 12 id. 355. Winfield v. Bacon, 24 Barb. 160.)
    3. If there were any doubt as to the effectiveness of the second defense as a mere negation or avoidance, of the plaintiff’s course of action, the facts there alleged, and the additional matters which constitute together this, fourth defense, being set forth affirmatively by way of counter-claim, fully established the defendant’s right, not only to defend the plaintiff’s action, but also to have an affirmative judgment in her favor. (Code § 274, sub. 2.)

      N. Dane Ellingwood, for the respondent
    I. The matters secondly set up in the answer of the defendant, do not constitute a sufficient legal claim to the premises in question ; inasmuch as the deed under which she claims (it being a deed from husband to wife,) is void at law ; nor do they constitute a sufficient equitable claim.
    1. A married woman may take or hold property, either in her own right, or as a feme sole, or as a henficiary of a trust; but she can neither take nor hold property, nor claim any interest therein, in any other way.
    2. In her answer, the defendant does not claim any interest in the land in question, under an express trust; but sets up a claim to such land, under and by virtue of a deed to her from her husband, executed subsequently to the passage of the act of 1849. It cannot be assumed that this court will exercise its equitable power to sustain such a claim, in contravention of an express statute. ¡
    II. The matters thirdly alleged in the answer, set up a > claim to lands other than the land described in the complaint, and in which parties other than those who are parties to the present action, have, or pretend to have, some interest. Such matters cannot be regarded as responsive to the complaint, or as constituting any claim whatever to the land in question in this cause.,
    III. The matters fourthly stated in the answer do not constitute a counter claim, as is therein alleged. Such .a claim can exist only in actions arising upon personal contracts or undertakings. {Code, § 150.) Nor can such matters be regarded as constituting an equitable claim, adverse to the legal claim of the plaintiff.
    IY. If, however, an equitable claim could be set up adverse to the express prohibition of the statute of 1849, the defendant, in her answer, has failed to make out, with sufficient particularity, a case for equitable relief. (Field v. Holbrook, 6 Duer, 605.)
    V. Besides, notwithstanding the close blending of legal and equitable actions under the provisions of the Code, a question of great doubt exists, whether in a legal action, brought for the purpose of determining the title to lands under the statute, an equitable adverse claim can be set up by way of answer. It is clear, however, that if the defendant has an equitable claim, it might be set up by way of a cross suit. (Mayor, &c. of New York v. Stuyvesant, 17 N. Y. Rep. 34, 44.)
   By the Court,

Robertson, J.

This action, even if only the same relief was sought in it as was formerly given under the statute respecting the determination of claims to land, (2 R. S. 313, § 3,) would be subject to the same rules as all other actions. (Code, § 449. Hammond v. Tillotson, 18 Barb. 332. Mann v. Provost, 3 Abb. 446.) The same defenses to defeat the right to such relief might be set up by the defendant. Such statutory proceedings evidently included only the determination of legal titles ; as the defendant was to be barred only from claiming an estate of inheritance or freehold in posssssion, reversion or remainder in the premises, It did not include the setting aside of a conveyance upon the ground of the grantor’s incompetency, (Bridges v. Miller, 2 Duer, 688,) or the rights of parties under a contract to convey. Were the action so limited, and the right claimed by the defendant in her second and fourth defenses purely equitable, they might possibly be insufficient as defenses.

But the relief demanded in the complaint, in addition to that given under the statutory proceeding, is that the plaintiff’s title may be quieted and adjudged free and clear from any right claimed by the defendant and “ other relief.” This includes the removal of the defendant’s claim, whatever it may be, from interfering with the title. It is by no means clear that the right set up by the defendant is not practically as much a legal one as the plaintiff’s. The language of the cases where deeds from a husband and to a wife have been sustained in equity, is by no means clear as to the mode in which the wife’s rights are to be protected or enforced, unless by re-. pelling hostile claimants, whenever they commenced an attack in a suit at law, by an injunction in equity ; nor does it seem-to be settled whether a second deed from the husband, through the intervention of a third person, is necessary to complete the wife’s title. At all events, the defendant has the same right to resist the attack of the present plaintiff upon her title, as if it were a legal one. He is neither a bona fide purchaser nor armed with the rights of a creditor ; he is only a voluntary trustee created by the defendant’s husband, and having no more rights than he would have had to interfere with the defendant’s estate or interest. The defenses made, therefore, were proper if they were sufficient in law.

The complaint in this case, however, is defective as one in an action to remove a cloud from the plaintiff’s title, because it does not show the nature of the defendant’s claim. (Heywood v. City of Buffalo, 14 N. Y. Rep. 534.) Since the law will not interfere to prevent speculative injuries, (Scott v. Onderdonk, 14 N. Y. Rep. 9) if it had simply stated such claim to arise from a deed from the defendant’s husband to her, on the face of which their relation appeared, it would have been demurrable, as the defect, if any appeared on its face. (Cox v. Clift, 2 N. Y. Rep. 118. Ward v. Dewey, 16 N. Y. Rep. 519. Fleetwood v. City of New York, 2 Sandf. 475.) If such deed, although prima facie void at law, could be sustained by extrinsic facts, the plaintiff would be bound to deny their existence in order to make the defendant’s claim void. This defect, however, cannot be taken advantage of as regards the counter-claim. (Graham v. Dunnigan, 6 Duer, 629.)

The first defense demurred to sets out that the defendant’s husband, when entirely free from embarrassment, for the purpose of applying the same to the separate use of the defendant, conveyed to her in fee simple a portion of the property set out in the complaint, which is specifically described by deed duly acknowledged and recorded. It also alleges that he did so in performance of an agreement to that effect with the defendant, and in consideration of his love and affection for her, and for other meritorious, valuable and pecuniary considerations. It further alleges that such settlement was no more than a reasonable provision for the defendant, in view of the pecuniary circumstances of her husband, and was so meant by him. Also, that he was a man of great wealth, and the defendant had released her dower in large tracts of land. There is no allegation that the release of such dower formed any part of the consideration for such settlement, or any part of the agreement on which it was made.

If such second defense is not sufficiently definite or certain in furnishing the details of the agreement for the execution of the settlement, or the pecuniary consideration of it, the remedy of the plaintiff is to move to make it so ; until he does so, it is to be presumed he understands the entire nature of them, particularly on demurrer, where he claims, whatever they were. Such settlement forms no bar to his recovery, which is the matter now to be determined.

The voidness at law of a deed directly from a husband to a wife, which is the highly artificial result of the technical theory of their being but one person, (1 Bl. Com. 442,) does not interfere with equitable rights which may grow out of such an instrument, they being capable, in equity, of being considered two persons. (2 Story’s Eq. Jur. §§ 1368 to 1375.) Such result, at common law, could always be obviated by interposing a stranger to accept a deed from the husband and give one to the wife. That ¿there was no policy of the law to be carried out by defeating a deed directly from the husband to the wife, is evident from the harmlessness of a recital in a conveyance to a stranger by the husband, that it was for the purpose of conveying to the wife. (Lynch v. Livingston, 6 N. Y. Rep. 422.)

It has been indirectly suggested, rather than seriously urged, that the statute of 1849, (Sess. L. 1849, 528, § 1,) which empowers a married woman to take, hold and convey, as a feme sole, property derived from any one but her husband, may, by implication, deprive her of the right of acquiring any property or interest by the gift of her husband, although only to. be enforced in equity. Whether it is intended to carry this doctrine so far as to deprive her of any rights she might acquire as purchaser or creditor, does not appear. It would be sufficiently daring if it took away from all husbands, however wealthy, the right of making provisions for the support of their wives. The title of the statute is, “An act for the more effectual protection of the property of married women," (N. Y. Sess. L. 1848, ch. 200,) not to restrict or limit their rights ; the section in question gives a married woman the power of a feme sole in certain cases, from which gifts by their husbands are simply excluded. The strange inference that such a statute meant to take away the right of a husband to make, or a wife receive from him, a provision for her support, needs no further argumént to refute it than the bare statement of the position. (Power v. Lester, 17 How. Pr. R. 413.) But it is seriously argued that this court should not exert its powers.in equity “to sustain a claim in contravention of an express statute.” How a court can do so, when it is only asked as a court of equity to protect the interest of a wife as a cestui que trust, or perhaps a ward in chancery, and not establish any powers in her as a.feme sole over the subject of the trust, I am at á loss to perceive.

Another question, by no means novel, has been raised, in this case, that any equity of the wife growing out of the facts stated in the second defense, must be a trust, and as such prohibited by the Revised Statutes respecting uses and trusts, (1 R. S. 727, § 45,) because not enumerated therein. One of such provisions (§ 50) expressly declares that the preceding sections shall not apply to “ trusts arising by implication of lato,” and the next section prohibits a resulting trust in a particular case. The.54th section of the same statute protects the rights of an innocent purchaser for a valuable consideration against an implied or resulting trust. Thus, in the strongest manner, recognizing and upholding implied trusts. (Johnson v. Fleet, 14 Wend. 179.)

Nothing, therefore, remains to be considered except what rights a wife derives by a settlement made by a husband upon her in consideration partly of his affection for her, and partly of pecuniary considerations, although _ by an imperfect instrmment, but executed with intent to carry out a previous post nuptial agreement. The intervention of a stranger, as a party to be contracted with, in order to sustain a wife’s rights, as her trustee, is not necessary in equity, which would thereby become as rigid and technical as the common law. (2 Story’s Eq. Jur. § 1380. Wallingford v. Allen, 10 Peters U. S. Rep. 583.) Nor is an antenuptial agreement indispensible as a consideration. (Shepard v. Shepard, 7 John. Ch. 60. Garlick v. Strong, 3 Paige, 452. Neufville v. Thomson, 3 Ewd. V. C. Rep. 93. Strong v. Skinner, 4 Barb. 552. Simmons v. McElwain, 26 id. 419.) The language of the authorities is that in a proper case, (Shepard v. Shepard, ubi supra,) where the consideration was meritorious or to prevent injustice, or where equity demands it. (Simmons v. McElwain, ubi supra, and Winans v. Peebles, 31 Barb. 380.) Where the lights of creditors do not intervene, mere affection and a desire to provide for the wife suitably, according to the husband’s means, are sufficient to sustain it. (Shepard v. Shep ard; Wallingford v. Allen; Garlick v. Strong; Strong v. Skinner, ubi supra.) Some valuable consideration proceeding from the wife on the faith of such promised settlement, seems to be necessary where creditors intervene. ( Wickes v. Clarke, 3 Edw. V. C. 58.) The same rule prevails in favor of the husband. (Livingston v. Livingston, 2 John. Ch. 537. Jaques v. Method. Epis. Church, 17 John. 548.)

In this case it is alleged, in the second defense, that the conveyance was made to the defendant in pursuance of a previous agreement for both a good and a valuable consideration, and that it was.a suitable one, having regard to the property of the husband ; this is admitted by the demurrer ; and equity will therefore sustain such a settlement, even if the plaintiff was a creditor or could claim a creditor’s rights. An agreement to release dower may be a sufficient valuable consideration to sustain it, even as against creditors, as I have had occasion to hold recently at special term, (Manhattan Company v. Slate and others, MSS. term, 186 ,) but it is not set forth to to have been one in this case. The allegation of releasing dower is entirely isolated, is not connected with, nor does it refer to any other, and might be stricken out without prejudice. The order appealed from, therefore, in so far as it sustains the demurrer to the second defense, is erroneous.

As the same matters are set up as a basis of equitable relief in the fourth defense, by way of counter-claim, and relate to the land, or the defendant’s claim thereto as the subject of the action, such counter-claim sets forth a good cause of action to prevent the plaintiff from embarrassing the defendant’s equity with his legal conveyance. (Tisdale v. Jones, 38 Barb. 523.) The fact that the plaintiff’s action is a substitute for a former special proceeding ; if it be so exclusively, and not one to remove a cloud upon the title, does not deprive the defendant of the right granted by the Code, (§ 150,) of setting up equitable defenses in any kind of actions. (Crary v. Goodman, 12 N. Y. Rep. 266. Phillips v. Gorham, 17 id. 270.) The demurrer to this defense is also not well taken.

The third defense presents simply the question whether a trustee, after the purposes of his trust have been accomplished, retains any interest in land conveyed to him to enable him to litigate the claims of others. A great many allegations unnecessary to raise that question are contained in this defense ; such as the priority in time of the conveyance to the defendant to the accruing of any claims of any creditor of her husband represented by the plaintiff, the barring of many debts of his by the statute of limitations, and the like. The important allegation is contained in it that the plaintiff has in his hands more than sufficient money, proceeds of sales by him of part of the assigned property, to satisfy all the legal, subsisting and outstanding debts of the assignor. If it clearly appeared by such defense that such debts did not include those barred by the statute of limitations, it would be insufficient, since the plaintiff's trusts do not cease by the running of the statute against such debts. But it does not; the allegation of the rxinning of such statute is mere surplus-age, and might be stricken out without prejudice. The language of the statute is clear and peremptory, that the estate of trustees of an express trust shall cease when the purposes for which such trust has been created shall cease. (1 R. S. 730, § 67.) A trustee, therefore, only takes so much of the entire legal ownership of the land as is necessary to carry out the trusts. His interest is contingent, and leaves the general ownership to remain with his grantor and his heirs or assigns. A reconveyance, after the trusts are fulfilled, is unnecessary. The property reverts to the owner, or rather becomes divested of the incumbrance of the trusts, as in case of a mortgage paid. This defense, therefore, amounts to a denial of title in the plaintiff, which is sufficient. (Harrison v. McIntosh, I John. 381. Bloom v. Burdick, 1 Hill, 130.) The order appealed from was, therefore, erroneous in sustaining the demurrer to the third defense.

The order appealed from must, therefore, be so modified as to give judgment for the defendant against the plaintiff as to the property specified in the second and fourth defenses upon the issues made by the former and the counter-claim contained in the latter, and as to the plaintiff's whole cause of action upon the third defense, instead of judgment for the plaintiff upon the demurrer; with liberty to the plaintiff to withdraw his demurrer and reply in twenty days to those defenses upon paying the costs' of such demurrer at special term.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    Joseph D. Davis et al. plaintiffs and appellants, vs. William Grove et al. defendants and respondents.
    1. The plaintiffs, a mercantile firm doing business at Havana, entered into an agreement with a firm who were merchants at New York, by which the former were to purchase sugars and ship them from Havana on joint account, consigned to the latter at New York, and to pay for the same by drafts drawn upon the consignees, on said consignments, and negotiated in Havana. Held that the relation of the parties to the agreement was clearly that of partners, in the purchase and sale of sugars.
    2. Held, also, that the interest of each partner, in the assets and stock of the partnership was subject to the lien of the other partners for payments made by them beyond their share of the debts of the company, and was applicable to the payment of debts not paid, before any division of the partnership property.
    S. Held, further; that an assignment by the New York firm of all their real and personal property in trust for the benefit of their creditors, only carried that residuary interest; and the assignee had no right, by virtue thereof, to appro- , priate the whole partnership assets of the two films to the payment of the separate debts of such New York house, and might be restrained by injunction.
    4. Such a cause of action may be joined with one for a partnership accounting.
    5. Where a partnership has been dissolved by the personal insolvency of some of the members, and their attempt to misappropriate the assets of the partnership to their private debts, the other partners will be entitled to a receiver.
    6. Such receivership should extend to all the partnership assets in the hands of the defendants. The injunction order should include them, so as to prevent the defendants from misappropriating them; and they should be required to deliver them over to the receiver.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 20, 1864.
    Appeal from an order made at a special term.
    The plaintiffs, being merchants, doing business in Havana, were induced by representations made by the defendants, doing business in New York, under the firm name of William Grove & Co. as to their solvency (which representations are alleged to have been fraudulent,) to ship sugars from Havana on joint account, consigned to the defendants at New York, paying for the same by drafts drawn upon said defendants, on said consignments, and negotiated in Havana. The course of the business by agreement between the parties, was to be as follows : the plaintiffs to buy the sugars in Havana for cash, and consign them to the defendants in New York. The purchase money for the sugars was to be raised by the plaintiffs in Havana, by the sale of bills of exchange, drawn by them on the defendants, upon such consignments, which the defendants were to accept at sixty days’ sight. The sugars were purchased and shipped accordingly, and bills of exchange to the amount of the cost thereof were drawn by the plaintiffs upon the defendants, negotiated by the plaintiffs in Havana, and accepted hy the defendants in New York at sixty days’ sight; but before any of said bills of exchange became due, the defendants made a general assignment for the benefit of their creditors, without preference, A large portion of the sugar had been sold by the defendants before-making the assignment, and 'the proceeds are in the hands of the assignee. A large part arrived after the making of the assignment, and are now in the hands of the assignee, unsold. The assignee is about to proceed under the assignment which is executed by two of the defendants, only, to distribute the assigned property pro rata among all the creditors of the defendants.
    The object of this action is to compel the application of the consigned property to the payment of the amount alleged to be due to the plaintiffs, and to the payment of the several drafts drawn upon and accepted by the defendants Grove & Co.
    The complaint prays for an injunction to prevent the assignee from interfering with the sugars assigned, or any part thereof, also that a receiver be appointed; that out of the proceeds of the consignment the bill holders be first paid, and then that any balance remaining be paid to the plaintiffs, on account of the sum of $1187.49 expended by them for said sugars, over and above what was realized from the sale of the bills, also on account of the half of the profit to which the plaintiff's are entitled.
    The order of special term appealed from, limited the equities of the plaintiffs in respect to the injunction and receiver, to the amount of the plaintiffs’ share of the profits only, while the plaintiffs contend that their equities as consignors of the bills extend to the proper application of the entire fund.

      W. N. Anthony for the appellants.

      T. B. Eldridge, for the respondents.
   By the Court,

Robertson, Ch. J.

The relation of the plaintiffs and all the defendants, except Barmore, ’was clearly that of partners in the purchase and sale of sugar. (Cumpston v. McNair, 1 Wend. 457. Reynolds v. Cleveland, 4 Cowen, 282. Mumford v. Nicoll, 20 John. 611. Smith v. Wright, 1 Abb. Pr. 243.) The interest of each partner in the assets and stock of the partnership was subject to the lien of the other partners for payments, beyond their share of the debts of the company, and was applicable to the payment of debts not paid before any division of the partnership property. (Addison v. Burckmyer, 4 Sandf. Ch. 498. Kirby v. Schoonmaker, 3 Barb. Ch. 46. Geortner v. Trustees of Canajoharie, 2 Barb. 625.) The assignment to Barmore only carried that residuary interest, as it was general of the real and personal estate of the assignors. He had no right by virtue thereof to appropriate the whole partnership assets to the payment of the separate debts of three of the partners, and he may be restrained from attempting to do so, if threatened by him, by the interference of the court; such a cause of action may be joined with a partnership accounting, which is the proper main relief in this action. (Wade v. Rusher, 4 Bosw. 537.) The partnership was not agreed to be continued for any definite time, and, therefore, may be dissolved at the pleasure of any party. It has been dissolved by the insolvency of Grove & Co. and their attempt to appropriate the assets of the partnership to their private debts, entitles the plaintiffs to a receiver. (Coll. on Part. 196. Harding v. Glover, 18 Ves. 281. Roberts v. Eberhardt, 23 En. L. & Eq. R. 245. Wilson v. Greenwood, 1 Swanst. 471, 480. Court v. Harris, Turn. & Russ. 496. Hubbard v. Guild, 1 Duer, 662.) The receivership in this case ought to have extended to all the partnership assets in the hands of the defendants, and the injunction order to have covered them, so as to prevent the defendants from misappropriating them, and they should have been required to deliver them over to such receiver. If there was any doubt as to the amount in the hands of the defendant Barmore, there should have been a reference to ascertain it. This is necessary, in order to provide for, and anticipate the final judgment, which must be for a payment of all the debts of the partnership pro rata out of its assets.

I agree with the learned judge who decided this motion in doubting whether this action could be sustained to enforce any supposed equity of the draft holders who bought their drafts in the market without taking any specific lien on- the goods. My views on that point have been heretofore expressed in the two cases referred to by him, of Scheidt v. Sturges, Shaw & Co., and The Bank of Mutual Redemption v. The same, decided in this court; but it is not necessary now to consider that point.

The order should be modified as hereinbefore suggested, with costs to the plaintiffs on the defendants’ appeal.


author: Roberton, Ch. J.

text:
    Henry A. Bellows, plaintiff and appellant, vs. Levi Folsom et al. defendants and respondents.
    1. In an action upon a promissory note, a referee, to whom all the issues were referred, found as facts that the note was given in consideration of the discontinuance of a former action by F., the maker, the payment of costs therein, and an agreement to execute and deliver a satisfaction piece of a judgment obtained in that action; and that no such satisfaction piece was given before the commencement of the present action. But it appeared in evidence that a consent to discontinue the former action was executed, by the plaintiff’s attorney.

      Sdd that the consideration for the agreement on the part of the defendants, when the note was given, did not consist wholly of the giving of the satisfaction piece, but included the discontinuance of the suit; and that the suit having been discontinued, the consideration for the hote did not wholly fail, ■ só as to let in the defense of a failure of consideration; the defendants having had substantially all the benefit of a discharge of the action, except the removal of a mere apparent lien of the judgment on their real estate.
    2. Sdd, cdso, that for the mere partial failure of the consideration of the agreement, and the non-performance of the plaintiff’s promise to execute a satisfaction piece the proper remedy of F. was by a separate action for damages.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 12, 1864;
    decided February 23, 1864.
    Appeal from a judgment entered on the report of a referee. The action was brought against the maker and indorsers of a promissory note, the indorsers being sued as gurantors. The maker (Folsom) defended, on the ground that the note was given in settlement of a judgment, pending an appeal from it, in order that he might convey his real estate—upon an agreement that the plaintiff should make out and deliver a satisfaction piece, in order to remove the lien of the judgment, which he failed to do ; by which the maker sustained damages, on account of his inability to convey by reason of the incumbrance, which were set up as a counter-claim.
    Previous to November, 1860, Henry A. Bellows, the plaintiff, had recovered a judgment in this court against Levi Folsom, one of the defendants. Folsom had appealed from such judgment, and the other defendants in this action, Brooks and Mancelia Folsom, had executed an undertaking, on behalf of said Levi Folsom, to stay proceedings on the judgment pending said appeal. In November, 1860, the defendant Levi Folsom delivered to Alfred Roe, the attorney for said Bellows, the note now in -suit, upon the consideration of the discontinuance of said former action, the payment of costs therein, and an agreement to execute and deliver a satisfaction piece of said judgment. The action was discontinued, the costs were paid, and a stipulation was given by said Roe, setting forth the fact of settlement, &c. in full, and consenting to discharge of judgment. No formal satisfaction piece was ever demanded by defendant. None was ever executed, until after the commencement of this action, and on that ground alone the referee reported' that the defendant was entitled to judgment dismissing the action, with costs, mm

      Alfred Roe, for the plaintiff and appellant.

      John Sessions, for the defendant and respondent.
   By the Court,

Roberton, Ch. J.

The referee has found in his report, as a fact, that the note sued upon/ was given upon the consideration of the discontinuance of a former action by the plaintiff against one of the defendants (L. Folsom,) the payment of costs therein, and an agreement to execute and deliver a satisfaction piece of a judgment obtained in such action* ” and that no such satisfaction piece was .obtained before the commencement of this action. This is entirely different from finding that such note was placed in the hands of any one, to become obligatory only upon the delivery of such satisfaction piece, or that it was delivered upon condition that such satisfaction piece should be furnished. It makes the consideration of the note to consist of a discontinuance of a former action, as well as an executory promise to deliver a satisfaction piece ; the payment of the costs, which was made by the defendant, forming, in fact, part of the consideration of such discontinuance and promise* and not of the note. That the referee understood and appreciated the force of the language used by him, in speaking of the agreement to give a satisfaction piece as a consideration and not a condition, is evident, from his refusing in the same report any damages to the defendants for the non-delivery of such satisfaction piece, pursuant to such agreement, only because no demand had been made. The agreement thus made to deliver a satisfaction piece must be construed in law to have been to do so on . demand, or within a reasonable time, or immediately. In any event, it would be a promise to be performed before the note became due, and damages for its non-performance could be recovered before that time.

The consideration for the agreement on the part of the defendants, when the note in question was given, consisted, therefore, not only in the giving of the satisfaction piece, but the discontinuance of the suit, which included proceedings on an appeal from the original judgment. That was done, and the defendants had the benefit of it, one as principal, and the others as sureties. The contract was entire on both sides, and the giving of the satisfaction piece could not be said to be the separate and only consideration for the note, any more than such note could be said to be the separate and only consideration for the satisfaction piece. The consideration, therefore, for such note never wholly failed, so as to place the parties back in the same situation, precisely, in which they were before it was given. The defendants had also reaped the benefit of being relieved from the prosecution of their appeal. Substantially, they had all the benefit of a discharge of the action, except the removal of the apparent lien of the judgment on any real estate. The attorney 'of the plaintiff (Mr. Roe) testified that a consent, signed by the attorney of the defendant Folsom, in such former suit, was, he thought, a copy of a consent which he gave the defendant, by which it was consented that the judgment in question “be canceled and discharged of record, the same having been settled by the defendant.” This, although not in the usual form, if properly acknowledged, would have answered for a satisfaction piece. It cannot be said, therefore, that the defendants reaped no benefit from the performance of the terms of the agreement, and that the consideration of the note entirely failed so as to let it in as a defense. For the partial failure thereof, and the non-performance of the plaintiff’s promise, the defendant Folsom had a remedy by a separate action, of which he sought to avail himself in this by a counter-claim, but failed in consequence of not proving a demand. (1 Parsons on Notes and Bills, 203, 207, 211, and notes. Spiller v. Westlake, 2 B. & Ad. 155. Freligh v. Platt, 5 Cowen, 495.)

The evidence on the part of the plaintiff was the testimony of his attorney, who stated that the defendant L. Folsom handed him the note in 'suit, and he at the time delivered to Folsom the consents before spoken of in regard to the discontinuance of-the former action, and satisfaction of the judgment in it, and agreed to send to the plaintiff and get a satisfaction piece of the judgment. The testimony of the defendant L. Folsom, somewhat conflicted with this statement; he admitted that some paper was signed by the plaintiff’s attorney and given to him at the time of the settlement, which he had sent to Maine. He did not, however, state its contents, nor did he deny that the plaintiff’s attorney had signed the consents in the form stated by him. He only stated that he asked such attorney “if he would settle and stop the suit, keep the money and note until he got the satisfaction piece.” He had then given the note and the money. This, which was denied by the plaintiff’s attorney, if it expressed the terms of the agreement, would have made the delivery of the note conditional until such satisfaction piece was delivered. The-referee chose to take the version of the transaction given by the plaintiff’s attorney, and came to an erroneous conclusion of law upon it. We must take the facts to be as he found them, and on that basis the report -and judgment were erroneous.

The judgment must be reversed, and a new trial had, with costs to abide the event, the order of reference to be discharged unless both parties elect to retain it.


author: Garvin, J.

text:
    Adrian Iselin et al. plaintiffs and appellants, vs. Silas H Dalrymple et al. defendants and respondents.
    An assignment in trust for the benefit of creditors, made to an attorney, is not rendered void by the insertion of a clause directing the assignee to pay and disburse, first out of the proceeds of the assigned property, “all the just and reasonable expenses, attorney fees, costs, charges and commissions of making, executing,” &c. the assignment.,
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard December 18, 1863;
    decided March 10, 1864.
    This action was brought by the plaintiffs, as judgment creditors of William Habirshaw, to set aside an assignment made by him, of all his property, to the defendant Silas H. Dalrymple, in trust for the benefit of creditors. The assignment was upon the trust that the assignee should take possession of the assigned property, sell and convert the same into money, collect the debts, &c. and with and out of the proceeds should “ first pay and disburse all the just and reasonable expenses, attorney’s fees, costs, charges and commissions of making, executing -and carrying into effect this assignment, and the trusts thereby created,” &c.
    The plaintiffs, in their complaint, alleged and insisted that the assignment was fraudulent and void, as against the creditors of Habirshaw, and in particular- they claimed that it was so fraudulent, “ inasmuch as the said assignee is an attorney and counsellor at law, and, by the terms of the said assignment, a preference in payment out of the assigned property is given to all the expenses, attorney’s fees, costs, charges and commissions of making and carrying into effect the said assignment and the trusts thereby created ; which said expenses, attorney’s fees and commissions, are to. be paid before any other debts of the said William Habirshaw-.”-
    The defendant, Dalrymple, by his answer, averred that he was not, before or at the time of execution and delivery of said assignment, and has not since been, either the attorney or counsellor bf said William Habirshaw; that he never counselled or advised him. about the making of the said assignment; that he did not draw said assignment, nor take any part in the preparation thereof, further than to accept the trust thereby created, and execute the bond required by law; and said assignment was not made to him because' he was an attorney or counsellor, but of his supposed capability for executing the same for the best interest of the several creditors of the defendant, William Habirshaw; and that he accepted said assignment and entered upon the duties thereof in good faith, and has continued to collect, manage, and husband said assigned estate, solely with a view to the best advantage of the creditors of said assignor. And that he had not performed any work or labor of any professional character or kind whatever, either as attorney or counsellor, in relation to the execution or carry-into effect the said assignment, or the trusts thereby created, and that he has no claim for any attorney’s fees, costs, charges or commissions as attorney or counsel in relation to said execution, or carrying into effect the said assignment or the trusts thereby created. And he denied that' the words expenses, attorney’s fees, costs, charges, and commissions, of making and carrying into effect the said assignment, and the trusts thereby created, contained in the said assignment, do, or were intended to give, either directly ar indirectly to him, any power or right, fee, emolument or reward, on account thereof, other or greater than is provided by law as compensation of assignees in like cases. And he denied that any. other or greater fee, or benefit, or reward, is, or was thereby directed to be paid to him, other than allowed by law ; and alleged that he had no other or greater interest therein than such commissions.
    The justice before whom the action was tried at special term, found the facts stated in the opinion; and directed a reference, to take an account of the amount received by the defendant as assignee, which he had not distributed before the commencement of the action, and to ascertain what the plaintiff’s share should be, &c.
    The plaintiffs appealed from the judgment.

      William Watson, for the appellants.

      C. Lawton, for the respondents.
   By the Court,

Garvin, J.

The particular objection urged against this assignment is the preference given to the “ attorney’s fees” by the terms of the assignment itself; and it is claimed that this provision renders the assignment absolutely void. As to matters of fact, the justice who heard this case at special term has found that the said assignee was not the attorney or counsel for the assignor before executing the assignment or in relation to drawing the same; and did not draw the same; and has not since the execution of said assignment acted as attorney or counsel in collecting of claims due said Habirshaw, and so assigned,- and that there are no fees due to him, or claims by him, for making and executing the assignment—that no compensation to the said assignee is provided for in said assignment,, beyond charges and commissions allowed him by law ; and that such assignment was not made to hinder, delay, or defraud the plaintiffs or any other of the creditors of the defendant, William Habirshaw. Upon all these questions of fact the finding of the justice is conclusive.

The insertion of a clause in an assignment providing for the payment of “all reasonable charges and commissions attending the execution thereof” has been held not to invalidate the assignment. (34 Barb. 422.) So it has been held that a provision. in an assignment for the benefit of creditors (giving preferences) that the assignees shall first be paid all expenses necessarily incurred in the execution of the trust, including the charges of drawing the assignment, together with a just and reasonable compensation for the labor, time, services and attention of the assignees about the trust, does not avoid the assignment. And that what is just and reasonable will be determined by the court on an accounting. (33 Barb. 425.)

It is further held in Campbell et al. v. Woodworth et al. (24 N. Y. Rep. 304,) that the insertion of the clause giving to assignees (one of them being a lawyer) “a just and reasonable compensation for labor, time, services and attention” in the business of the trust, means no more than a provision for the commissions fixed by law. There can be no doubt that an assignee has the power, independent of any provision in the assignment to enforce and defend rights connected with and growing out of the trust, and to pay the expenses of so doing. Conferring this power in terms in the assignment upon the assignee, does not render the instrument itself void.

The compensation allowed ah assignee for labor, time,, services and such expenses as- are necessarily incurred in the execution of the trust, this compensation is called a commission or commissions, and it has been frequently adjudged that such rate of compensation is just and reasonable in all cases. This is all the assignee can receive, however onerous his duties, and he is entitled to the same rate of compensation, though his duties may be ever so light.

The Court of Appeals says in regard to the case of Nichols v. McEwen, (17 N. Y. Rep. 22,) “ this court- pronounced an assignment void which contained a provision providing for compensating an assignee, who was a lawyer, for all his expenses, costs, charges and commissions, together with a reasonable counsel fee. It was only the provision for the counsel fee which received the condemnation of this court, and the allowance to the assignee for all his expenses, costs, charges and commissions was deemed unobjectionable.” (Campbell v. Woodworth, 24 N. Y. Rep. 306.)

The case of Campbell v. Woodworth settles the question, that the words, “ expenses, costs, charges and commissions,” are unobjectionable in an assignment. “Attorney's fees,” added thereto would not, in the light of this case, be objectionable, because the words “a just and reasonable compensation, for time, labor, services and attention ” are unobjectionable— certainly costs and charges:, time, labor and services cover all that is or can be included in “attorney's fees "—so that whether these words are in or out of the assignment it can make no difference.

Again : This assignment only authorizes the assignee to pay and .disburse all just and reasonable expenses, &c. It therefore is not apparent on the face of the assignment, that the assignee was to have any compensation beyond such as he is legally entitled to, for no provision is in terms - made for him. In 34 Barb. 422, the clause allowing the assignee “ all reasonable charges and commissions ” attending the execution of the trust, was construed as referring to the compensation of other persons lawfully employed by the assignee. The words in this case rather exclude the idea of compensation to the assignee.

The language used in this assignment does not authorize any other or different compensation than such as is legal and just.

The judgment in this case should be affirmed, with costs.


author: McCunn, J.

text:
    William W. Niles, plaintiff and respondent, vs. Ludlow A. Battershall, impleaded, &c. defendant and appellant.
    1. The 136th section of the Code does not alter any fundamental principle of law, as to the joint liability of joint contractors, but was intended to alter the common law on a point of practice only.
    2. The legislature intended by that section to change the former rule of practice by which, if any number of persons or joint contractors were sued, it was ' necessary to prove and establish an entire case against all the defendants, or the action would fail, so that the plaintiff might recover against so many of the defendants against whom he can prove a joint contract, and a consequent joint liability.
    3. That section does not permit a separate judgment to be entered against one of two or more defendants proved to be joint contractors, and therefore jointly liable, even thopgh that defendant should be the only one served, or who appears, while the .others remain on the record as defendants.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 19, 1864;
    decided April 23, 1864.
    Appeal from a judgment entered upon the report of a referee. The action was brought against Ludlow A. Batter-shall, Alexander Davis, James- Van Burén and Frederick A. Kelly. Battershall was the only defendant who appeared and answered, and judgment was entered against him alone. The material facts appear in the opinion of McOttnn, J.

      William W. Niles, plaintiff and respondent, in person.

      A R. Dyett, for the defendant and respondent Battershall.
   By the Court,

McCunn, J.

1. The plaintiff alleges in his complaint that all the defendants to this action were officers and stockholders of the Hydeville Marble Company, a company duly organized under the laws of our state, and “ that on or about the 20th of October, 1858, the defendants retained the plaintiff, as an attorney and counsellor at law, to take hold and attend to all the suits and business of the said company, and protect and defend their interests therein, and to defend their interests and liabilities as such stockholders, and save the property to them, and agreed to pay the plaintiff liberally for his services ; and that, by reason of such retainer, he performed certain services therein particularly set forth. _ This is a brief synopsis of the case.

The answer of Battershall, the only defendant served out of four, among other reasons for defense, denies that he retained the plaintiff in the manner alleged, or that he rendered the services claimed in his complaint.

The case was referred to Charles P. Kirkland, Esq. as sole referee, to hear and determine the issues of law and of fact, before whom Mr. Niles, the plaintiff,.‘testified, as a witness in his own behalf, that on the said 20th day of October, the defendant Battershall, in the presence of the other defendants, employed him to act in certain matters and suits, against the Hydeville Marble Company; that Battershall at that meeting said, I propose we employ Mr. Niles, and if he will take hold of these matters, I, for one, will pay him liberally,” and that the other defendants assented to this proposition ; that he entered upon his engagements, and performed certain services which he claimed were reasonably worth the value he fixed upon the same, in his testimony.

On his cross-examination, he testified' that, to the best of his recollection, all the persons present at this meeting (the defendants) were trustees of the company, and that the secretary, Phillips, was present also.” Van Burén, one of the defendants, was called by Mr. Hiles, and testified that Mr. Batter-shall, in the presence of all the defendants, said some one ought to be employed to give it attention, and to secure the company’s property to the creditors, and that he was willing to employ Mr. Hiles, and that he should be well paid to give it all the attention that was necessary.” Mr. Harris Wilson also testified, that Mr. Battershall proposed to employ Mr. Hiles for the purpose of pursuing the course he proposed, and that they, the defendants, would pay him liberally for so doing, if he carried out his (Hiles’) views, and that Van Burén assented to this. After a long cross-examination of these witnesses, the plaintiff rested.

On looking over the testimony given, a very serious doubt at first arose, in my mind, as to whether this was a retainer of Mr. Hiles by Battershall and the other defendants in their individual capacities, or whether it was a retainer on the part of the company. I find, however, that the referee in his special report (the general report goes for nothing) finds that the defendants in their individual capacities employed the plaintiff; and he orders judgment against Battershall alone, but without disposing of the other defendants. It is quite true that in the 10th finding of fact, the referee says : That the other persons (except Battershall) named as defendants in this action had not appeared, and that process was not issued or served upon them.” This finding cannot affect the result that should have followed the finding, for if it was a joint employment, they were joint contractors, and consequently joint defendants. If they were jointly bound, they should be held as such ; if they were not, that should have been found, and they should be relieved from the onus of having their' names on the judgment’ record.

Perhaps if the plaintiff had moved to strike out the other defendants from the record, and prayed a judgment against the defendant Battershall alone, and he had been able to prove a separate and sole employment by Battershall, or if the referee had done this, of his own motion, after such proof of a separate employment, the judgment might have been good; but forgetting that joint liabilities were found by him, he awarded a judgment against Battershall alone, without disposing of the. other defendants, leaving their names to encumber the record. Notwithstanding this judgment, if it be correct, it may be doubtful whether the plaintiff is not at liberty, by virtue of the same theory, to serve each of the other defendants with process, and on the same state of facts enter up, from time to time, several separate judgments against the remaining three defendants.

If the defendants were jointly liable, and the second finding of the referee is to that effect, then judgment should have been entered “pro forma” against all. At the same time, the referee might have found the fact (although the affidavit of service, or notice of appearance, would have shown that only one was served,) so that parties applying to the record for information might learn whose property is affected and liable on ■execution, because final process can only issue against the individual property of the person served, or who may have appeared, and against the joint property of all the defendants.

The judgment, as it now stands, being a separate judgment against Battershall alone, although the second finding is one of a joint liability against all, gives no remedy to Battershall against his co-defendants, for their pro rata share of this joint liability.

The 136th section of the Code does not alter any fundamental principle of law, as to the joint liability of joint contractors, but is merely intended to alter the common law in a point of practice.

At common law, if any number of persons or joint contractors were sued, it was necessary to prove and establish an entire case against all the defendants in the action, or it would fail. The legislature intended- simply by this section to change this rule of practice, which seemed to be erroneously founded, by allowing the plaintiff to recover against so many of the defendants against whom he can prove a joint contract, and a consequent joint liability. This was. the only object of this section of the Code, and this is the only change it made. It does not permit a separate judgment to be entered against one of two of more defendants, proved to be joint contractors, and therefore jointly liable, even though that defendant should be the only one served, or who appears.

The judgment should' be reversed, and a new trial ordered.

Robertson, Ch. J. The referee, to try the issues in this cause, made two reports, one termed special, containing findings of fact and conclusions of law, and the other general, both of which contain an award of judgment in favor of the respondent, against the appellant, for a certain sum. The general report finds that sum to be due, by reason of the matters and things contained in the complaint. The special issues of fact raised by the answer were, whether the services alleged by the respondent to be performed by him were rendered for his own benefit, or not, and whether the appellant employed him to render such services ; all the other matters alleged in the complaint were controverted. Such general report did not dispose of such issues, as a report of referees is required by the Code to do. (§ 272.) What are issues are defined by it. (§ 250.) And there was nothing in such general report by which to amend it. (Peck v. Yorks, 14 How. 416.) It may, therefore, be disregarded as superfluous. Such special report gives as the referee’s conclusions of law :

First. That the respondent was entitled to recover against the appellant a certain sum for the services mentioned in the finding of facts which preceded in such report.

Second. That the respondent was entitled to judgment against the appellant for such sum, which last conclusion is repeated in the general report annexed. The judgment entered upon such report, was against the appellant alone, as “ impleaded,” &c. for the same amount, with costs, thus conceding that there were other parties to the record.

Such special report does not find explicitly that the appellant, either alone or jointly with others, not parties to the record, employed the respondent to render- the services set out in the complaint, hut merely that the appellant and others of the officers and stockholders of a certain company, in their individual capacities, employed the respondent professionally to attend to sundry matters affecting the'property of such company. It does not state the name of such others, or whether they were the ‘other defendants or not, although the complaint alleges that all the defendants were officers and stockholders of such company. Although such report contains several items of evidence to show that the appellant was principally interested in having such services performed as the respondent rendered, there is no room to construe such report as a finding of a several contract made hy the appellant alone.

If, however, such report is to be construed as deciding that the respondent was employed by the appellant alone, it is unsupported by evidence. The testimony of the respondent, of two. defendants (Van Buren and Davis,) and of the counsel (Wilson,) and secretary (Phillips) of the company, shows a joint retainer by all the defendants, and there was no evidence of a separate retainer by the appellant alone. The only difference between such witnesses was as to the character in which the defendants retained the respondent. Indeed, the referee, in his opinion, admits there were co-contractors of the appellant. Although, under the Code, a plaintiff may recover against one defendant out of several, upon his several contract, notwithstanding the former has alleged it in his complaint to be joint, (Claflin v. Butterlly, 5 Duer, 327 ; Parker v. Jackson, 16 Barb. 33 ; Brumskill v. James, 1 Kern. 294 ; Marquat v. Marquat, 2 id. 342,) he cannot deprive a defendant, served with process, of the right of having his co-contractors joined with him, in order to have judgment entered against them all, to be enforced against their joint property under section 136 of the Code, whether they are served with process or not; and partipularly not by first adding them, as parties on the record to prevent an answer in abatement, and then dropping them in the judgment, without any leave of the court, or notice to the defendant served.

It is much to be regretted that an omission or defect of apparently so slight a character, should prevent the respondent from reaping the benefit of a report in his favor for meritorious services, after a severe contest before the referee. If the referee had found a joint employment by the defendants as his report on the issue, the judgment might, perhaps, have been amended to correspond. But the judgment given as actually by him, can only be sustained by the finding of a several contract, which the evidence does not support. The referee seems, by his subsequent certificate, to have supposed that he could give judgment against any one defendant served with process, wholly disregarding the others. In that he is mistaken. He takes the place of the court and jury, and is as much bound, after trying the issues, to assess damages against the parties who have made default or are not served, as those served, or who have pleaded, as he would have been under the former mode of practice, since the judgment to be rendered upon his report is finally to determine the rights of the parties in the action. (Code, § 245.) I think it would have been better for all parties if the question of the value of the plaintiff’s services had alone been referred, leaving the other questions to be determined by a jury, as was done by this court in Bowman v. Sheldon, (1 Duer, 607,) under section 271, subdivision 2, of the Code. Questions of law may arise on the trial, proper to be disposed of by the court. If the respondent chooses to modify the order of reference, so as to confine it to a reference to determine the value of his services, leaving all other questions to be determined on a trial, it may remain thus modified, otherwise it must be vacated. I concur in thinking that the judgment must, at all events, be reversed, and a new trial ordered, but subject to such modification of the order of reference, with costs to abide the event.


text:
    Margaret E. Adriance, executrix, &c. plaintiff and respondent, vs. Bernard McCafferty et al. defendants and appellants.
    1. Sales for taxes and assessments, in the city of New York, are a mode of transferring title by operation of law, in the nature of a forfeiture; and all the conditions of such sale required by law being conditions precedent, must be literally followed.
    2. A notice, published by the assessors, requiring all persons opposed to an assessment to present their objections, in writing, to the assessm-s, instead of to the chairman of the board, as required by the statute, is not a compliance with it but is irregular, insufficient and void.
    3. The publication of a notice in papers, after the period for which they were appointed corporation papers, according to law, has expired, without any renewal of the appointment, is void.
    4. To render sales for assessments Valid and binding, the city corporation should, at the end of each and every year, designate, by ordinance, the proper newspapers for the publication of notices. Per McCtoN, J.
    (Before Robertson, Garvin and McCunn, JJ.)
    Heard February 9, 1864;
    decided April 23, 1864.
    This was an action of ejectment by the plaintiff to recover possession of a lot of ground on the east side of Fourth avenue, between Twenty-seventh and Twenty-eighth streets, in the city of Hew York. The complaint was in the usual form, and simply set up possession from prior grantors. The defendant’s answer set up the purchase of said lot by one John L. Brouwer, under a corporation sale for assessments, made the 18th of July, 1862 ; that, under such purchase, so made by said Brouwer, he obtained the usual lease from the corporation in such cases, and that on the 21st day of December, 1855, the said Brouwer duly assigned said lease to the defendant, Mc-Cafferty, who immediately took possession of the premises.
    On the trial, the plaintiff simply proved title and rested. The defendant then offered in evidence the corporation ordinance under which the assessment was made, the appointment of assessors and a notice to owners, &c. The defendant further proved and offered in evidence the ordinance of the common council, approved July 7, 1848, designating the Hew York
      Evening Post and Commercial Advertiser as corporation papers for one year from that date, and also proved the publication in said papers for ten consecutive days, from July 26, 1849, of the following notice i

      “ Corporation Notice.—Public notice is hereby given to the owner or owners, occupant or occupants of all houses and lots, improved or unimproved lands affected thereby, that the following assessments have been completed by the assessors, and are lodged in the office of the bureau of assessments, for examination by all persons interested, viz : for regulating and setting curb and gutter stones in the Fourth avenue, from 28 th to 38th streets, and flagging a space four feet wide through the side walks of the same. The limits embraced by such assessment include all the several houses and lots of ground, vacant lots, pieces and parcels of land, situated on both sides of Fourth avenue, between 28th and 38th streets on the northerly side of 28th street, between Lexington and Madison avenues on both sides of 29th, 30th, 31st, 32d, 33d, 34th, 35 th, 36 th and 37th streets, between Lexington and Madison avenues, and on the southerly side of 38th street, between Lexington and Madison avenues. All persons whose interests are affected by the above named assessments, and who are opposed to the same, or either of them, are requested to present their objections in writing to the undersigned, at their office, within 30 days from the date of this notice. Samuel H. DeMott,
    Francis Eicholson,
    William Wells,
    Assessors.
    Office Bureau of Assessments, Street Department, July 26th, 1849.”
    The plaintiff’s counsel objected to the notice as not being in accordance with the statute, Which requires the objections to be presented not to the board of assessors, but to the chairman of the hoard ; and that said notice was not, as required by law, published in the corporation papers, the year for which the Evening Post and Commercial Advertiser were appointed having expired, and no further appointment of said papers having been made. The judge who tried the case sustained the objection on the first ground, and charged the jury accordingly, who found a verdict for the plaintiff, with §500 damages. Judgment having been entered upon the verdict, the defendants appealed.

      Schell, Slosson & Hutchins, for the appellants.

      Adriance & Vanderpoel, for the respondent.
   By the Court,

McCunn, J.

I fully concur in the rúling of the judge, at the trial. My view of the case is that both of the objections taken by the plaintiff to the introduction of the notice, are valid objections, and go to defeat the defendant’s entire case.

Where a statute, in effect, strips an individual of his property or title, or which in any way affects the same, its requirements must be strictly complied with to enable parties purchasing to acquire a title. Moreover, the requirements of the statute are the very conditions upon which the owner is divested of his title and property ; and it does not lie with the court to consider whether the statute was reasonable, or whether the notice in this case nearly complied with the act ; but whether the provisions of the statute have been literally pursued, and strictly complied with. The two cases, (Culver v. Hayden, 1 Ver. R. 359, and cases therein cited; Spear v. Ditty, 9 id. R. 282,) cited in the plaintiff’s points establish this view.

The requisitions of the law are the substantial parts of the title, and cannot in the slightest degree he dispensed with. Sales of property, similar to the one in question, are invariably • attended with great hardships to the owners of such lands, and purchasers at such sales, purchase therefor' at their peril. They calculate on great profits from small investments, and it behooves them to see that the proceedings, under which they claim title, have been strictly complied with.

These sales for taxes and assessments, are a mode of transferring title by operation of law, without the consent or sanetion of the owner, and are in the nature of a forfeiture, and all the conditions being conditions precedent must be literally-, followed.

The authorities cited by the defendant do not apply to this case.

In my view, the form of the notice did not comply with the language of the statute, and was clearly irregular and insufficient, and consequently void. I am also of opinion, that to make these sales valid, and binding on the parties against whom they are intended to operate, the corporation should, at the end of each and every year, designate by ordinance the proper newspapers for such publications.

Judgment affirmed.