| NY | Sep 15, 1866
The inquiry raised by the last objection, it seems unnecessary to discuss. The counsel for the defendant has made no point in respect to it, and there can be no doubt that the facts stated do constitute a cause of action. »
The defendant insists that there is an improper joinder of actions, because, as he supposes, the demand of one thousand three hundred and twenty-one dollars arises for a sum due to Thatcher and Marselis, for money paid by them to satisfy certain judgments upon the real estate sold, for which they had become personally responsible, while the demand for three thousand and twenty dollars arises from the price of the land sold, which is due to the assignees in their representative capacity.
The complaint states the agreement of the defendant with the four asignees to pay a certain amount of judgments which were liens upon the land sold. It is also stated in the agreement, and in the complaint, that the assignees had become personally responsible for these judgments; and it is also stated that Thatcher and Marselis have paid the amount; but these latter statements are not necessary to the complaint, and may be disregarded. The fact that the defendant agreed with the assignees, to pay these sums and has not done so, is fully stated. This demand arises, not from the payment of these.
The remaining objection is of a more serious character. Unless one of several co-trustees can, by his own acts, relieve himself from the responsibility of a trust, once accepted and for some time voluntarily acted upon, there is a defect of parties by reason of the non-joinder of David W. Candee. The fact stated in the complaint, which is supposed to excuse the non-joinder, is the assignment by Candee of his interest in the estate to the other assignees, and his renunciation of the right to act. There is no statement of his death, or of any disability, or of an accounting and discharge by the court. We are to assume that no such facts exist. Nor has the plaintiff brought himself within the rule permitting a necessary party to an action to be made a defendant where he has been requested, but has refused, to unite as a plaintiff in its prosecution.
The authorities are clear that a trustee cannot divest himself of the obligation to perform the duties of the trust without an order of the court or the consent of all the cestuis que trust. Shepherd v. McEvers, 4 Johns. Ch. 136; Cruger v. Halliday, 11 Paige, 314, 319; Ridgeley v. Johnson, 11 Barb. 527. These authorities are sufficient to establish that D. W. Candee is a trustee, notwithstanding his assignment and disclaimer.
Trustees cannot act separately all must unite. They constitute in law but one person, and must join. in. bringing an action. Brinckerhoff v. Wemple, 1 Wend., 470. Thatcher and. Marselis have no authority to exclude, their co-trustee,
The judgment should be affirmed with costs, with leave to the plaintiff to amend upon payment to the defendant of the costs of the demurrer awarded at special term, and the costs of the appeal to the general term of the supreme court and of the appeal to this court, in twenty days after adjustment.
The amendment should be allowed in view of the probable running of the statute of limitations, should' the plaintiff be put to another action.
All the judges concurred.
Judgment affirmed, with costs, with leave to plaintiff to amend, upon payment to the defendant of the costs of the demurrer, awarded at special term and the costs, of the appeal to the general term of the supreme court, and of the appeal to this court, in twenty days after their adjustment.