33 How. Pr. 145 | NY | 1866
The inquiry raised by the last objection, it seems unnecessary to discuss. The counsel for the defendant has made ho 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 $1,321 arises
The complaint states the agreement of the defendant with the four assignees 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 sums by Thatcher and Marselis, but upon the contract of the defendant with the assignees. The payment by the assignees creates no liability on the part of the defendant, and is stated, perhaps, for the purpose of raising an additional equity against the defendant, but not for the purpose of creating a cause of action in favor of Thatcher and Marselis personally. The defendant distinctly agreed, and bound himself to pay these sums out of the proceeds of sales, and the obligation arose in favor of the assignees as soon as he had received a sufficient sum from the sales for that purpose. The receipt of a sufficient sum is averred, and a cause of action in favor of the assignees, in their representative capacity, appears to be fully stated.
The remaining objection is of a more serious character.. Unless one of several co-trustees can, by his own action, 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
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 ah the cestuis que trust. (Shepherd agt. McEvers, 4 Johns. Ch. 186; Cruger agt. Halliday, 11 Paige, 319; Ridgeley agt. 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; ah must unite. They constitute in law but one person, and must join in bringing an action (Brinekerhoff agt. Wemple, 1 Wend. 470.) Thatcher and Marselis have no authority to exclude their co-trustee, D. W. Candee, from acting with them, by reason of anything stated in the complaint. The judgment, ii recovered in this action, would be no discharge to the defendant as against the creditors of the assignor, John Hagaman.
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 concurring, judgment affirmed.