Durling v. Hammar

| New York Court of Chancery | Oct 15, 1869

The Chancellor.

The bill alleges that the defendant, Joseph Hammar, who had been appointed by the Orphans Court of -the county of Philadelphia, guardian of the property of his two infant children, George W. Hammar and the complainant, Margaret Jane' Hammar, now the wife of the other -complainant, Andrew. J. Durlfng, in December, 1858, as. such guardian, and by virtue of an order of that court, sold the real estate of the two infants, in the city of- Philadelphia, for $3225. And that he did in the same month, with that, money, purchase a farm in Hunterdon county,- in -this state, and the farming stock-and implements -for the farm.;-that he-.took the title in bis own name, but intended .to purchase and hold. tho same for his two children, to be conveyed, to them when they should become of age; that he, with his children, resided on the farm, and were supported out of it; that his son George, after he became of age, worked on this farm, and took half of the proceeds; that George died in 1865, leaving a widow, the defendant, Martha J. Hammar, and three children, the three infant defendants; that administration of his personal estate was granted to his widow, who as administratrix, in 1865, filed in this court a bill against Joseph Hammar, setting out these facts, and claiming that the land *and personal estate might be decreed to be held by Joseph Hammar, in trust for her on his failure to pay to her the part of the proceeds of the sale of the lands of his son George, which belonged to him. That bill, as well as this, alleged that the sureties on the guardian’s bond, as well as Joseph Hammar, are insolvent, and that all the parties reside in this state. In that suit an account was taken of the amount due to the administratrix of George for his share of tho proceeds of tho sale of the Philadelphia property. A decree was made against Joseph for tho amount, and upon a fieri facias the personal estate and lands bought by Joseph with the money of his children were sold as his property, and the proceeds paid to the administratrix of George. The land was sold under the fien facias, to the defendant, Rittenhouse, and one Hoagland, who both had notice of the facts creating the trust, and after the conveyance by the sheriff to them, Joseph Hammar and his wife (in violation of an injunction in that suit) gave a deed of bargain and sale for this land to Rittenhouse and Hoagland;. and subsequently Hoagland conveyed his share to Rittenhouse.

The prayers of the bill are: First. That the deed from Joseph Hammar to Rittenhouse and Hoagland may be declared void as against the complainant for her undivided half, and that the same is held in trust for her. Second. That it may be decreed if the legal title passed by the sheriff’s deed, that it did not affect the trust. Third. That there may be a partition under the direction of this court, or that if ■deemed more expedient the whole may- be sold, and one half the proceeds paid to the complainant.' Fourth. And that if more equitable and just, said administratrix should refund to Eittenhouse the purchase money received by her and the other half of the proceeds be paid to said infants, or if no sale be decreed to be held in trust for them. Fifth. That Eittenhouse account to the complainant for her share of the rents, issues, and profits; and Sixth. The general prayer for relief.

If Joseph Hammar purchased this land and personal4property with money belonging to his infant children, and in his hands as their guardian or trustee, and more especially if he at the time intended to purchase the same in trust for them, t-hey became entitled to claim the property •or the money at their election. Any trustee who purchases property with trust funds in his hands will, at the option of the cestuis que trust, be declared to hold it in trust for them, .although title was taken in his owm name, and intended for his own benefit. And if Eittenhouse had notice of the facts at the sale, by the sheriff, he is affected by the trust. The complainant is entitled to relief as against him, upon the allegations in the bill.

As to the relief asked for in the fourth prayer of the bill .against Mrs. Hammar as administratrix, it clearly cannot be granted in this suit, or in any other brought by this complainant. She has no interest in the refunding to Eittenhouse of the purchase money, or in having their proper share secured to the children -of George; and no adjusting of the -equities between these parties is necessary for the relief to which the complainant may be entitled.

This demurrer would, therefore, be sustained if it had been confined to so much of the relief sought for' against this defendant as is contained :in the prayer above distinguished as-'the fourth prayer. But as Eittenhouse, against whom the relief is sought is a trustee for the complainant, and may be such as to the children of Geoi’ge W. Hammar, and as to-his estate, which is represented by.the administratrix; and as under the general prayer for relief, the question may arise, whether the interest of the complainant in the land may not exceed one half, by reason of the proceeds of the personal property, which was part of the same trust, having been paid to the administratrix, she, as well as the infants, are proper parties to the bill, and the residue of the bill cannot be dismissed as against her.

The question of multifariousness is on two grounds. One is, that the complainant prays first that her title to one half of this property as cestui que trust may be decreed and established, and also that it may be partitioned, and one half set off to her by metes and bounds. This, if wrong, is not strictly multifariousness, but a misjoinder. It does not involve in litigation on a question in which he has no interest, a party who has an interest in a distinct question or litigation in the same bill. Rittenhouse is interested in both questions — first, whether he holds, as trustee for the complainant, and to what extent; and secondly, whether the share of the complainant should be set off to her by metes and bounds; and the other defendants so far as they are interested, are in the same manner interested in both questions.

The real question is, can both these matters be joined in •one suit as against the same defendant. It is my opinion that they may. The subject matter is the same, one parcel of lands. The complainant claims that she is entitled to have one half of the parcel conveyed to her as cestui que trust, and asks that in the conveyance instead of one equal undivided half, one partitioned half by metes and bounds shall be conveyed. In suits between the proper parties relating to the same subject matter, several species of relief may be prayed, although each might be the subject of a separate suit, as that one mortgage may be redeemed and another declared void for usury. Many of the complicated decrees, constantly made in this court, demonstrate this to be the practice in equity.

Another ground of multifariousness is, that relief is sought against Martha J. Hammar, in which Rittenhouse is not concerned. This would sustain the demurrer for multifariousness, if the complainant showed a case in which she was entitled to the relief so asked against Martha J. Ham-mar, or if that part' of the bill was sustained. Chancellor Walworth, in Varick v. Smith, 5 Paige 160, says: “A bill is not multifarious where it sets up one sufficient ground for equitable relief, and sets up another claim which, upon its face, contains no equity which can entitle the complainant to the interposition of the court, either for discovery or relief.”

And in Emans v. Emans, 1 McCarter 114, Chancellor Green says : “ The demurrer being sustained as to part of the bill, the objection on the score of multifariousness is removed. The rest of the bill not covered by that ground of demurrer remains in court, and the complainant as to that part of his case may proceed as if there had been no demurrer.”

As the demurrer in this case is to the whole bill, and not to the part only on which there can be no relief, it is too broad and must be overruled. Banta v. Moore, 2 McCarter 97; Story’s Eq. Pl., § 443.