62 N.Y.S. 259 | N.Y. App. Div. | 1900
Under the allegations of the complaint, the money of the plaintiff is traced into the-real estate therein described. It was delivered to the defendant and received by her as part of the purchase price. There being a misappropriation by the general guardian, the plaintiff had a right to look to the land for indemnity. She had an equitable lien thereon to the amount of the trust fund invested in it.. (Ferris v. Van Vechten, 73 N. Y. 113, 119; Holmes v. Gilman, 138 id. 369, 378.) In the Ferris case it is said (p. 119): “ It must
Warner v. Blakeman, 4 Keyes, 508.)
If trust property is wrongfully converted by the trustee^ and constitutes, although in a changed form, a part of the assets of - an estate with which it is commingled, priority of lien will be adjudged in favor of the trust estate. (Matter of Cavin v. Gleason, 105 N. Y. 256, 262.) If, in the present case, only a contract for sale had been given, and the money of plaintiff had been paid thereon with -defendant’s knowledge, there cannot be much doubt that the equitable lien of plaintiff would be a charge on the whole property and overreach any interest of-defendant therein. The position, here is equitably no better for the defendant.
Sufficient facts were, I think, stated in the complaint to constitute - a cause of action.
It is claimed by the defendant that Nancy A. Mann is an indis- • pen sable party defendant. She has now no interest in the real
I fail to see how there is any defect of parties appearing on the face of the complaint.
All concurred.
Judgment affirmed, with costs, with usual leavé to answer upon payment of costs.