9 Paige Ch. 410 | New York Court of Chancery | 1842
A great variety of objections exist to the granting of the motion in this case ; many of which are merely technical, but some of them are of a substantial character. One objection of form is that the motion is not made in behalf of all the complainants in what is called the cross bill, but is made by Pell and wife only, without joining their co-complainant who is the trustee of her separate estate. If he has any interest in the defence of this suit as trustee, he should have put in an answer thereto, and should have joined in this application. And if the whole legal and equitable title to the mortgaged premises is in Pell and wife, under the provisions of the 47th and 49th sections of the articles of the revised statutes relative to uses and trusts, Selden should not have been a complainant in the cross bill. (Cuff v. Platell, 4 Russ. Rep. 242. The King of Spain and others v. De Machado, Idem. 225. Delondre & Pelletier v. Shaw, 2 Sim. Rep. 237.) The objection, however, that one of the complainants has no interest in the subject matter of the bill, must be taken advantage of by demurrer, or in the answer of the defendant, where the objection appears on the face of the bill. For after the parties have gone to a hearing upon the pleadings and proofs, those who are properly made complainants will not be turned around to a new suit upon this mere formal objection. (Rafferty v. King, 1 Keen’s Rep. 601. Trustees of Watertown v. Cowen, 4 Paige’s Rep. 515.)
Again ; the facts in this cross bill are not sworn to in such a manner as to entitle the complainants therein to a stay of the proceedings in the original suit. They are stated on mere information and belief. And it is not pretended that Leavitt, upon whom the rights of the association in the bond and mortgage have devolved as receiver, has any knowledge of the supposed facts stated therein, so as to en
It also appears from the cross bill that this suit has become defective, in consequence of the appointment of a receiver in whom the whole rights of Talmage, as president of the North American Trust and Banking Company, in the subject matter of controversy in this suit and of the association itself, have become vested, either by assignment or by operation of law. The receiver must therefore be made a party to this suit before the same can be further proceded in. (Sedgwick v. Cleveland, 7 Paige’s Rep. 287.) And no order affecting his right to take the proper measures to have himself substituted as complainant in this suit, and to proceed therein to a decree, can be made without notice to him or to his solicitor.
This suit was in fact brought for the benefit of the North
In the case of Warner v. Beers, (23 Wend. Rep. 100,) I came to the conclusion that these banking associations were in fact corporations, authorized to exercise certain corporate powers during the continuance of the law under which they were organized. And there is nothing in the resolutions of the court for the correction of errors in that case, in the adoption of which I concurred, inconsistent with the opinion which I there expressed. The supreme court also has repeatedly decided that banking associations are in fact corporations. And in the recent case of The People ex rel. The Bank of Watertown v. The Assessors of the Village of Watertown, (1 Hill's N. Y. Rep. 616,) that court held that they were liable to be assessed as corporations, upon their capital stock, in the same manner as the safety fund banks and- other monied corporations are liable to be assessed.
The motion to stay the, proceedings in this cause until the cross bill is answered must be denied with costs. But