2 Barb. 493 | N.Y. Sup. Ct. | 1848
The first question to be determined is, whether the trust upon which Joseph Kissam held the bond and mortgage was one for the separate use of Mrs. Stuart, so as to bar her husband of his marital rights in respect to the subject matter of the trust. This becomes important in view of the alleged assent of Robert Stuart to the acts of Joseph Kissam. The facts bearing upon this question are these. On the 30th day of October, 1830, Spencer D. Colton, being seised in fee of a tract of land in the twelfth ward of the city of New-York, known as subdivision No. 3, of the Turtle Bay farm, executed a declaration of trust, declaring that the consideration money which had been paid for such premises was the proper money of the plaintiff Mary R. Stuart, and that the premises had been conveyed to, and were held by him, in trust for her sole use and benefit, separate and apart from her husband, as if she were a feme sole; and covenanting that he would convey the same in such manner as she should direct. And for the performance of this covenant Colton bound himself to Benjamin M. Jackson, as trustee for the separate use of Mrs. Stuart, in the penal sum
The trust thus declared by Joseph Kissam is clearly valid within the revised statutes ; it being a trust of personal property for a purpose not forbidden by law. But it is contended that the instrument creating it did not so limit the property to the separate use of Mrs. Stuart, as to preclude her husband from claiming it in virtue of his marital rights.
It is not necessary, in order to create a trust for the separate use of a married woman, that any particular technical form of words shall be used. It is sufficient that there appear a clear intent to give the property to the wife for her own benefit, and to exclude the husband. In this case the trust is for the sole use and benefit of Mrs. Stuart; the property is vested in a third person as trustee for her, a circumstance of weight, though not conclusive; and all moneys received from the trust property are to be paid to her individually. This is, I think, equivalent to a provision for payment to the wife upon her separate or individual receipt, and so sufficient to exclude the husband. (Hartley v. Hurle, 5 Vesey, 540.)
But the claim of Mrs. Stuart, to hold the property in question for her separate use, rests not alone upon the declaration of trust executed by Joseph Kissam. His trust sprang out of, and was in fact but a continuation of, the one previously vested in Colton. It is said that the trust declared by Colton was invalid, as being a trust of lands for a purpose not authorized by
Another point is taken by the defendants, in connection with the one last disposed of, which may as well be considered here. It is said that Robert Stuart, being joined as plaintiff, his acts 'and declarations in respect to the matters in litigation are evidence in the cause, and bind Mrs. Stuart in this suit, though they would not in a suit instituted by her separately; upon the principle that in a suit by two plaintiffs no decree can be made to which they are not both entitled. I think this position is unsound. The husband is merely a formal party. He has no interest in the subject matter of the suit, and claims none ; no relief is sought by, or can be decreed to him. He is joined as plaintiff in this case, because the forms of our law do not permit a married woman to institute a suit in her own name, alone. Either her husband must join, or she must sue by a next friend. Where the suit relates to the wife’s separate estate, in which the husband has no interest, and he is joined as plaintiff, his relation to the suit is very similar, if not precisely analogous to that of a next friend. The whole subject matter of this suit belongs to the wife. She complains that her trustee has dealt improperly with her property. It is no answer for him to say that her husband, who had no interest in such property, no right to interfere with it in any way, no powér to hind or affect her interests in respect to it, consented td the breach of trust. It seems to me that Mrs. Stdart is no more precluded, in this suit, from impeaching thé acts of Joseph Kissam in respect to the property held by him in trust for her separate use, by reason of the assent of her husband to such
I come now to the consideration of the merits of this controversy.
On the 7th day of April, 1835, Daniel W. Kissam, jun. died, being at the time of his death seised of the lands conveyed to him by Colton; and the bond and mortgage for $20,000 remaining outstanding in the hands of Joseph Kissam, in trust for the separate use of Mrs. Stuart, as before mentioned. D. W. Kissam, jun. left a will, whereby he appointed his brothers, Samuel and Timothy T. Kissam his executors; and after giving certain pecuniary legacies, devised and bequeathed the writ ole residue of his estate to his three brothers, Joseph, (before mentioned,) Samuel, and Timothy T., and his two sisters, Maria, and Elizabeth Helen, the wife of K M. Conklin, in equal shares. The two executors named proved the will. It is alleged in the bill, and admitted in the answers of Joseph, Samuel and Timothy T. Kissam,-that Joseph and Samuel Kissam were each interested to the extent of one-third in the original purchase made by Daniel W. Kissam, jun. though the title was taken in the name of the latter, and he was the only person ostensibly interested. On the 19th of November, 1835, the premises covered by the mortgage in question having been divided into 126 city lots, were offered for sale at auction by Joseph and Samuel Kissam and the other residuary devisees of D. W. Kissam, jun. Twelve of the lots were sold and conveyed to Gilbert Leggett, and eight to V. P. Shattuck and John Ackland. The others, 106 in number, were bid off by Joseph Kissam, who received from Samuel Kissam and the other residuary devisees of D. W. Kissam, jun. a conveyance of all
The determination of this question must depend upon the pleadings and the effect of the answers as evidence; there being no testimony of any importance, upon the subject. I will first consider the case as against the defendants Joseph Kissam and the executors of D. W. Kissam, jun.
It is admitted by the answers of these defendants, that no money was paid to Joseph Kissam in satisfaction or upon account of the mortgage; but it is alleged that its amount was allowed to him as a part of thé consideration of the conveyance
The answer of Joseph Kissam states, in one paragraph, that the mortgage was cancelled “ with the assent and knowledge of the complainants.” But immediately following is a statement, that in respect to the rights and interests of Mrs. Stuart in the trust property in question, her husband acted by her consent and direction, as her agent or attorney; that he was always in the habit of receiving the interest on the bond and mortgage, and on several occasions signed receipts therefor in the presence of Mrs. Stuart, and that as this defendant believes and as far as came to his knowledge, the acts of Robert Stuart were approved and ratified by his wife ; that all the transactions relative to the trust estate between this defendant and Mrs. Stuart, were conducted through the intervention or agency of her husband, and that as this defendant believes Mrs. Stuart was kept apprized of all such transactions by her husband. Taking these statements together, it is very evident that Mr. Kissam did not intend to swear, of his own knowledge, to any personal assent of Mrs. Stuart to the cancelment of the mortgage. He states expressly, that all his transactions with pier were carried on through the medium of her husband, but
But the transaction iri this case was of such a nature that something more is nécessary to sustain it in a court of equity than mere evidence of assent by Mrs. Stuart. It was a transaction between trustee ánd cestui que trust, during the existence of that relation, and résülting in an advantage to the trustee and a loss to the cestui que trust. Such a transaction is always scrutinized in a court of equity with a watchful and jealous eye ; and it will never be sustained to the disadvantage of the cestui que trust, except upon the most complete and satisfactory evidence of good faith and fair déaling on the part of
In this case, the cestui que trust was a married woman; the transaction to which it is alleged she assented, was one which could in no event have benefitted her'; and which, if sustained, will in its results prove eminently disastrous to her interests. It was a relinquishment by her, without compensation or equivalent, of two-thirds of the security for the debt which formed the subject of the trust; and such relinquishment enured to-the sole benefit of the trustee. In 1833, Mrs. Stuart, through Colton as her trustee, had sold the whole of the premises in question to D. W. Kissam, jun. for $24,000. Five-sixths of the purchase money had been permitted to remain on mortgage. In less than three years afterwards, Joseph Kissam, her trustee, having acquired the premises subject to the mortgage, claims to have entered into an agreement with his cestui que trust, whereby in lieu of her original mortgage, she received one upon one-third only of the premises, to secure five-sixths of the original purchase money of the whole. It is said that the premises had in the meantime increased in value. Doubtless they had, to some extent, though the greater part of the increase was imaginary. But after giving full weight to this circumstance, and to that of the exaggerated opinions at that time generally entertained in respect to the value of real estate in the city of New-York, I cannot believe that the 42 lots embraced in Samuel Kissarn’s mortgage, would even at that period, have been deemed by any prudent capitalist a proper security for a loan of $20,000. But that was not the question presented between these parties. Mrs. Stuart had already a mortgage upon the 126 lots. It is impossible to perceive any motive or inducement for her relinquishment of two-thirds of that security, receiving no benefit in return. The substituted bond was made payable at the same time as the original one, so that it cannot be pretended that she gained an advantage by way of greater
My conclusion, therefore, upon the case as against Joseph Kissam and the executors of D. W. Kissam, jun. is, that the original bond and mortgage have never been lawfully discharged, but are still subsisting securities; that the bond debt is well established against the estate of Daniel W. Kissam, jun.; and that all of the lands covered by the original mortgage which are now in the hands of either of these defendants, are subject to its lien.
The rights of Mrs. Stuart are not prejudiced by reason of the conveyance of the 42 lots by Joseph Kissam to William Stewart, in trust for her by her direction. She at the time expressly reserved her claim upon the original mortgage. Her whole claim was in jeopardy by reason of the unlawful acts of her trustee, and she had a right to lay hold of the remnant of security which was still in his hands. The other parties liable for the debt were not prejudiced by her course in this respect, but were benefitted by it, as the claim against them was thereby reduced pro tanto. Joseph Kissam was in precarious circumstances, and if the property had been suffered to remain in his hands, it might have been wholly lost.
The defendants, William Onderdonk, Samuel Kissam, (cart-man,) and Anna E. Cooke, administratrix, &c. are respectively mortgagees of certain parcels of the lots covered by the original
These parties are entitled to their costs; but as the plaintiffs had no knowledge of the facts which give them a priority, and were entitled to have those facts established by proof, and as the occasion of their being made parties arose from the wrongful acts of Joseph Kissam and the executors of D. W. Kissam, jun. the costs of these defendants should be paid by Joseph Kissam; and if not collectable from him, then out of the estate of D. W. Kissam, jun. If they cannot be collected from either of those sources, they must, I think, be paid by Mrs. Stuart. But I do not think it proper to make any .present directions in regard to these costs. They will be reserved until the final hearing,
The equity of redemption in the lots covered by these mortgages appears to be in Joseph Kissam, and is of course subject to Mrs. Stuart’s claims. It is probably of no value, but it will be necessary, in order to entitle Mrs. Stuart to relief against parties subsequently liable, to bring that question to a practical test by a sale of the lots subject to the mortgages, and the decree will contain a direction to that effect.
The defendant James 0. Paul holds eight of the lots covered by the original mortgage. These are the lots which were sold and conveyed to Varnum P. Shattuck and John Ackland, as has been before mentioned. Shattuck and Ackland gave a mortgage to the executors of D. W. Kissam, jun. to secure a part of the purchase money, upon a foreclosure of which mortgage the lots were purchased by the executors, but the title was taken in the name of Joseph Kissam. It does not appear that Shattuck and Ackland Avere bona fide purchasers; but if they
The question remains to be considered, whether upon the pleadings and proofs, Mrs. Stuart has established her case as against Paul. The defence set up by the Kissams, if it had been sustained by them, would have enured to the benefit of this defendant claiming title under them: but the answers of these defendants are not evidence against Paul, and cannot, in any way, aid Mrs. Stuart in establishing her case against him.
The issue between the parties is upon the fact of payment, and the onus of proving that fact lies upon the defendant, This is not like the case of a claim to set aside a release admit
I conclude therefore that the lots held by Paul are liable to the claim of Mrs. Stuart; but as Paul received them for a consideration valid as between himself and the estate of D. W. Kissam, jun. he stands, in respect of such liability, in the situation of a surety, and is entitled to require Mrs. Stuart to exhaust all other securities which she has for her debt, including her claim upon the bond against the estate of D. W. Kissam, jun. before resorting to the lots held by him. And the decree must so declare.
The case remains to be considered with reference to the legatees and devisees of D. W. Kissam, jun. who are made defendants. The defendants Edward Kissam and Sarah J. Kissam state in their answers that they have received nothing upon account of the legacies bequeathed to them, and they stand uncontradicted in this respect. The bill as against them must therefore be dismissed with costs.
The defendants Maria Kissam, John Kissam, Charles Sturges and wife, and R. M. Conklin and wife, have each received
Whéther this suit, in its present shape, can be maintained against these legatees, consistently with the provisions of the revised statutes relating to suits .against legatees and devisees, may be a question of some difficulty. These defendants did not see fit to present that question by demurrer, whereby they might have had a speedy decision upon it. And as the question will only become material in the event of the inability of the executors to respond for the assets they have received, to an amount sufficient to satisfy Mrs. Stuart’s claim, and it may therefore not be necessary to determine it at all, and as I have not had the benefit of any extended discussion of the point by counsel, I will not now decide it, but will reserve it until the final hearing.
Upon the merits, Í think Mrs. Stuart has established her case against these parties. She has proved the original bond and mortgage, and they have not shown any satisfaction or discharge of it. The principles before discussed, in relation to the case against Paul, are equally applicable to the case against these defendants.
There must be a decree establishing the original bond and mortgage as valid and subsisting securities, (saving the rights of the subsequent bona fide mortgagees,) and for a reference to some suitable person to compute the amount due. It must be declared that the bond and mortgage, and all rights growing out of the same, vested or declared by the decree, are the separate property of Mrs. Stuart apart from her husband; and the referee upon her nomination, will select some suitable person as a trustee for her, in respect to such property. To satisfy the
The bill must be dismissed as against Edward and Sarah J. Kissam, with costs, to be paid out of the fund to be raised under the decree for Mrs. Stuart’s separate use.
All further questions to be reserved; and the parties to have the usual liberty to apply for further directions, &c.