94 N.Y. 209 | NY | 1883
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *211 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *213 Under the will of John P. Dodge, the mother of the plaintiff took a fee in the farm upon which the testator resided at the time of his death, determinable upon her remarriage, and the plaintiff a contingent fee depending upon the happening of that event. The mother having remarried February 6, 1879, and thereby the contingency having happened upon which the fee was to vest in the daughter, the latter thereupon became seized of an absolute estate in the farm, unless her contingent estate under the will was divested by the proceedings instituted in 1870, under the statute for the sale of the real estate of infants, and the sale and conveyance of the farm under the order of the court therein. The defendant Thompson, who was the executor of the will of John P. Dodge, was duly appointed the special guardian of the plaintiff in the proceedings which resulted in a sale of the infant's interest in the farm, to one Julia A. Coulter for the sum of $7,300. The special guardian executed a conveyance of the infant's interest to the purchaser, who paid a part of the purchase-money at the time, and executed a mortgage for $5,000, on the farm, to Thompson as special guardian, to secure the part remaining unpaid. The mother of the plaintiff, concurrently with the conveyance by Thompson, also conveyed to Mrs. Coulter, her interest in the farm. The consideration for her conveyance does not clearly appear, but it is inferable that $7,300 was the whole consideration paid for the farm, and that the mother consented that the mortgage of $5,000 should be taken by the special guardian for the benefit of the plaintiff. In 1878, Thompson, as special guardian, commenced an action *214 to foreclose the Coulter mortgage, and the farm was sold by a referee under the decree in the foreclosure action, February 3, 1879, and was bid in by Thompson in his own name, for the sum of $5,000, and the farm was conveyed to him by the referee pursuant to the sale. Thompson paid no part of the purchase-money. The referee accepted his receipt as special guardian for the amount bid, in lieu of actual payment in money. Intermediate the sale and the delivery of the deed, Thompson, in his individual character and as an executor of the will of John P. Dodge, upon his own motion and without the direction of the court, executed to the defendant Stevens a mortgage on the land for $2,766.14, to secure a debt due to the latter from the estate of John P. Dodge, and for which Stevens had recovered a judgment against the executor. Stevens subsequently commenced an action to foreclose his mortgage, and pending the foreclosure, this action was brought against Thompson and Stevens, to compel the former to convey to the plaintiff the title acquired by him on the foreclosure of the Coulter mortgage, and for the cancellation of the Stevens mortgage.
It is conceded by the counsel for the appellant Stevens, that the purchase by the defendant Thompson, on the foreclosure of the mortgage held by him as special guardian, was in violation of the settled principle in equity that no person placed in a situation of trust in reference to a sale can purchase on his own account. (Torrey v. Bank of Orleans, 9 Paige, 649; S.C., 7 Hill, 260.) It is also conceded that Thompson, neither in his own right nor as executor of the testator, John P. Dodge, had authority to mortgage the land to Stevens to secure the debt of the testator. But it is claimed that the invalidity both of Thompson's title and of the mortgage to Stevens are disclosed by the record, and that the plaintiff does not require the aid of equity to protect her rights, and cannot, therefore, maintain this action.
It is doubtless true that an examination of the chain of title would apprise a purchaser of the fact that Thompson's title was derived under a foreclosure of a mortgage held by him as *215 special guardian, and the infirmity of his title would affect the title of his grantees or mortgagees, who would be chargeable with notice, by the record, of the disability of Thompson to deal with the property to the prejudice of the plaintiffs. But a purchase by a trustee, for himself, of trust property, in respect of which he has a duty to perform inconsistent with the character of purchaser, is voidable at the election of the cestui que trust, and not absolutely void. The cestui que trust may affirm the transaction and treat the trustee as purchaser, or he may disaffirm the purchase; and in case of real estate, if the title has become vested in the trustee by a conveyance, may compel the trustee to convey to him, or in trust for him, as the case may require. This is the jurisdiction which was invoked in this case as against the defendant Thompson, and it is no answer to the relief sought against him that the defect in his title would be disclosed by an examination of the record. The plaintiff's mortgage was extinguished by the foreclosure, and the court, as incident to its jurisdiction over trusts, had ample authority to grant the relief demanded. (Ward v. Smith, 3 Sandf. Ch. 592.) It was also proper for the court, for the purpose of affording complete relief, and to free the title from embarrassment, to set aside the mortgage to Stevens, who took it with full notice of the rights of the plaintiff.
It is claimed, however, that the action will not lie, for the further reason that the sale to Mrs. Coulter, under the proceedings for the sale of the real estate of the infant plaintiff, was ineffectual to divest her contingent estate under the will of her father. This contention is based upon the ground that the statute only provides for the sale of an estate of which an infant is seized, and that the court, in directing the sale of the plaintiff's contingent estate, acted without jurisdiction. (Jenkins v. Fahey,
The remaining question arises upon the claim of the appellant Stevens, that he is entitled in this action to a judgment, declaring the plaintiff liable, as devisee of her father, for his debt against the testator, John P. Dodge, to the extent of the estate devised to her, and charging the same upon the farm in question. The judgment obtained by Stevens against the executor Thompson did not bind the land devised to the plaintiffs. (2 R.S. 449, § 12.) But the statutes make heirs or devisees liable for the debts of the testator to the extent of their interest in the estate descended or devised, upon certain conditions stated. (2 R.S. 452, §§ 32, 33, 56.) It also prescribes the proceedings to be taken to enforce the remedy given, and in case of several devisees it provides for apportioning the debt among them according to their respective interests (§ 52), and directs that they should be prosecuted jointly to enforce their liability (§ 60).
The plaintiff was not the sole devisee under the will. It is an unanswerable objection to granting the relief sought by the appellant Stevens in this action, that all the devisees are not parties, and this objection was raised by the pleadings. The statute is imperative, and the remedy which depends upon the statute must be pursued in the way it points out. The fact that the devisee Michael J. Dodge has aliened the land devised *217 to him, and that he is insolvent, might furnish a reason for dispensing with his being made a party, if the court, in enforcing the liability of devisees, proceeds in virtue of its general jurisdiction, but acting as it does in such cases under a special statutory authority, it cannot disregard a limitation imposed by the statute, which creates the remedy. (Schermerhorn v. Barhydt, 9 Paige, 28; Cassidy v. Cassidy, 1 Barb. Ch. 467; Gere v. Clarke, 6 Hill, 350.) The decisions recognize the necessity of joining all the devisees in an action under the statute. (Wambaugh v. Gates, 11 Paige, 513; S.C., How. Ct. App. Cas. 247; Parsons v. Bowne, 7 Paige, 354.) The non-joinder of the other devisees in this case being a conclusive answer to the claim of the defendant Stevens to charge in this action the plaintiff or the land devised to her, with his debt against the testator, it is unnecessary to consider whether the other conditions, upon which the liability of a devisee for the debts of a testator depend, were met by the evidence.
We think the judgment should be affirmed.
All concur.
Judgment affirmed.
