Bleeker v. Bingham

3 Paige Ch. 246 | New York Court of Chancery | 1831

The Chancellor.

The cases referred to by the counsel for the defendants, on the argument, establish the principle, that upon a deed inter partes, a stranger cannot at law avail himself of a stipulation in his favor. Neither can the release of such stranger be pleaded in bar to an action of debt or covenant brought by the party with whom the agreement was made. (Scudamore v. Vandenstene, 2 Coke’s Inst. 673. Gilby v. Copley, 3 Lev. 138. Storer v. Gordon, 3 Maule & Sel. 308. Barford v. Stuckey, 5 Moore's Rep. 23.) It will be found upon examination, however, that this is a mere technical rule. And in Barford v. Stuckey, Dallas, Ch. J. says, in express terms, that the person with whom the contract was made might have been compelled by a court of equity to sue for the benefit of the party in whose favor the stipulation was made. It is every day’s practice in this court to give effect to such stipulations in marriage settlements, and other conveyances in trust, upon the application of the persons in whose favor the stipulation is made; although such persons are not parties to the deed. And even at law, upon an agreement riot under seal, a third person may maintain the equitable action of assumpsit upon a stipulation for his benefit, contained in a contract between other parties. (Schermerhorn v. Vanderheyden, 1 John. Rep. 139. Sprat v. Agar, 2 Siderf. 115. Dutton v. Pool, T. Raym. Rep. 302. Starkey v. Mill, Style’s Rep. 296.)

In this case Grace Berrian can hardly be considered as a mere stranger to the deed of trust, and to the consideration upon which the provision in her favor was made. Although Mrs. Bingham was under no legal obligation to make this provision, or any other, in favorof Grace, yet she undoubtedly considered the dying request of the first husband, from whom she received the property, as forming a moral obligation, as strong, at least, as that which req'uires a parent to provide for ■ his children. I think, therefore, there was a meritorious consideration' in the case to support this agreement with Mrs. Bingham, by her husband, in behalf of the object of her bounty. There is no pretence in this case, that the consideration received by the husband from the wife was not sufficient to support the agreement as between themselves. The whole property belonged to the wife; and there were no children, of the marriage, to entitle him to an estate for life as tenant by the curtesy; yet, by the deed of trust, he obtained an interest for life in $10,000 of the money arising from her land which had been taken for a city improvement.

It is not necessary to determine, in this stage of the suit, whether there can be any decree against the wife, in relation to the income of the bank stock ; or whether that income would belong to Mrs. Bleeker, on the death of Mrs. Bingham, if the latter, in her discretion, should think proper to retain it until that time. The allegation in the bill is that the husband, in violation of the stipulation in the trust deed, has received the dividends himself, and has refused to permit his wife to pay them over to the complainants. In other words, "that he has controlled her volition; and has not permitted her to apply the dividends, to the use of Mrs. Bleeker, according to her own discretion. If the agreement is valid, the court may at least require the husband to place the dividends in the hands of the wife, so that she may apply them to the use of the complainants in such way as in her discretion she may deem proper. And if she thinks proper °to have them paid over absolutely, the husband should be required to pay them accordingly.

If the complainants have an interest which this court can protect, it was not necessary for them to join the wife, as a complainant, in the bill against her husband. Her legal and equitable rights can be enforced and protected as a defendant. And if she wishes to put in a separate answer for that purpose, it will be a matter of course, in a case like the present, to grant her that permission. There is no objection made by-the demurrer, of a want of parties; and if the trustees are necessary parties, the complainants can bring them before the court, as defendants, by an amendment of the bill. This is a general demurrer for want of equity ¡ and it must be overruled, unless the court is satisfied that no discovery or proof, properly called for by, or founded upon, the allegations in the bill, can make it a proper subject of equitable jurisdiction. (1 John. Cas. 427.)

For these reasons I think the complainants are entitled to an answer. The demurrer must therefore be overruled, with eosts.