104 N.Y.S. 323 | N.Y. App. Div. | 1907
The defendants appeal from an interlocutory judgment overruling their demurrers'to the complaint. The complaint attempts to plead two causes óf action, and the defendants demur to the entire complaint, on the ground that causes of action are improperly united, .and to each separate cause of action attempted to be stated on the ground of misjoinder of parties plaintiff and of failure to state facts sufficient to constitute a cause of' action. The plaintiff Mary E. Mullin, who sues individually and as administratrix, is the widow of John P. Mullin, deceased, and the plaintiff Mollie Oldner is the only heir at law and next of kin of said deceased. While the complaint lacks clearness and precision, I think that, indulging
Of course it is unnecessary to discues the proposition that a person who transfers his property to defraud his creditors cannot have the aid of equity to get it back, and that allegation would be fatal to the complaint were it not for the allegation that said Mullin was of feeble mind and under the influence and control of the defendants, and that'the transactions alleged were the result of such undue influence and control. • The unlawful purpose was, therefore, that of the defendants and not of said Mullin. By the transaction alleged in the complaint the defendants became, at least trustees ex maleficio of the moneys intrusted tó their- keeping. Equity will, therefore, compel them to account, but it is clear that, as to the money obtained by the defendants, no one but the personal representative of the deceased has any such legal or equitable interest in the subject of the action as entitles him to be joined as a party plaintiff witliin section 446 of the Code of Civil Procedure (Havana City Railway Co. v. Ceballos, 49 App. Div. 263), and as -to the • real property, equity, treating the entire transaction as void by reason of the undue influence practiced, might construct a trust and compel the defendants to account to the personal representatives of the deceased as trustees ex maleficio of the money used in its pur
If I am right in asserting that upon the facts alleged in the complaint the said Mullin could have élected to hold the defendants as trustees ex maleficio of the moneys used in the purchase of the real property or to claim the absolute title to- said real property, there is good reason why the personal representative, the widow and the heir, should all be parties to the action, and' I think that, treating the complaint with liberality as I have, it is found to allege a state of facts showing that the plaintiffs are all interested in the central point likely to be in controversy and in the judgment asked for, and it follows, therefore, that the demurrer to the first cause of action was properly overruled. ■
By the second cause of action the pleader undoubtedly undertook to state a cause of action relating to the same real property referred to in the first cause of action. I quote the material alle^ gation of this cause of action: “ That the said John P. ■ Mullin, deceased,, was on and before the 17th day of October, 1904, seized in fee simple and in lawful possession of certain real property hereinafter more particularly and specifically described, which the Said deceased purchased and paid for from time to time during his lifetime^ but for the purpose of avoiding the payment of liabilities which might accrue against him in business or otherwise, and being of feeble mind and under the influence of the. defendants above named, was induced by said defendants to take the deeds for such real property in the name of the defendant, Bridget Mullin.” The part quote'd falls short of alleging undue influence, and the ■ allegation that the transaction was for the purpose of avoiding the payment of liabilities presents an insuperable objection to the sufficiency of this part óf' the complaint as stating facts sufficient to ' constitute a cause of action in favor of any one.
Hiesohbbeg, P. J., Woodwabd, Jenks and Hookee, JJ., concurred.
Interlocutory judgment modified to the extent of sustaining the demurrer to the second cause of action, and as so modified affirmed, without costs.