3 Abb. Pr. 246 | N.Y. Sup. Ct. | 1856
The first clause of section 122 of the Code is intended to apply to cases where the controversy in the suit ccmnot be determined without the presence of other parties besides those in court. Whenever this becomes manifest at any stage of the proceedings, the court not only may but must cause the defect to be supplied and the parties whose presence is needful to a full determination of the subject matter of the suit, and of the dispute between the present parties to be brought in. (Davis v. The Mayor of New York, 2 Duer, 663).
The matters in controversy between the parties in this suit are the extent of the shares and interests of the various devisees of the lands which passed by the will of Henry Waring, and the question whether these lands can be divided or must be sold. It is obvious that there is no necessity that the petitioner, Clarke, should be a party to the suit to accomplish a final decision of either of these questions. Judgment creditors are not necessary, if they are in any case proper parties to a partition suit, and the claim of the petitioner in its most favorable aspect is only to a lien similar in its nature to that of a judgment.
I am inclined to think that an action for the partition of lands may be regarded as an action for the recovery of specific real property within the meaning of the latter clause of ■ section 122 of the Code. At least it is not necessary to hold that it is not in order to dispose of this motion. Waiving all question whether there is enough shown in the petition to establish a liability of the estate of Henry Waring, the deceased partner, and beyond that to entitle the petitioner to resort to his real estate, it is quite clear that this is not a case where the person claiming to be a creditor of the testator under these circumstances has an interest in the subject matter
In the present case a portion of these lands appear to have been aliened, and, as far as the facts are alleged or disclosed on either side, aliened in good faith without notice of debts previous to the completion of three years from the issuing of letters testamentary on the estate of Henry Waring. These three years, during which the lands could have been sold by the executors for the payment of debts, have now however passed. The petitioner has lost that remedy by his inactivity, and without more than is shown by his petition, he never can subject the lands conveyed to Mr. Cromwell, nor the purchaser, to any lien or responsibility for any portion of his debt if he have one against the estate of Henry Waring.
With respect to such of the devisees and parties to the present action as have not aliened their interests in these lands, the case would be somewhat different. But as to them a creditor by simple contract of the ancestor or rather of a partnership of which the ancestor was at the time of his death a member, is, before he has commenced a suit to establish his claim and enforce its collection in the manner and to the extent permitted by the statute against heirs or devisees, in a position very faintly assimilated even to that of a general judgment creditor. After the creditor has instituted a suit in the precise
This result .must be attained in the method directed by the statute. (2 Rev. Stats., 450, § 99). The proceedings contemplated by this chapter, it has been repeatedly held, are a substitute for all former remedies, legal and equitable, against heirs or devisees. (See Butts v. Genung, 5 Paige, 254; Chambaugh v. Gates, 11 Paige, 505). They must be rigorously and precisely pursued according to the statute. They cannot be joined with proceedings against the personal representatives of the debtor, and certainly they cannot be mixed up with a partition suit. It would be difficult, if not impossible, to try all the questions which the claim of the petitioner involves in such a suit as this. Some of the shares or interests in the premises appear, as far as the facts are now disclosed, not to be subject to any charge or liability on account of this claim. As to these shares the petitioner would gain nothing by introducing such a litigation as he proposes into this suit, while their owners would be unjustly subjected to the vexation and delay of a protracted controversy in which they had no interest before they could obtain the possession of their interest in the lands or the proceeds. And as to the portion of lands which have not been aliened, I am unable to see how the petitioner would be in any better position by becoming a party to-this action than he can attain by commencing the suit which the statute gives him.
If he has or can ever get any lien it must be by making the allegations and proofs, and after exhausting all the preliminary
I am satisfied that the petition makes out no case for an interference with this petition suit, by amendment or otherwise, making an accounting of the whole estate of Henry Waring, besides an investigation of the affairs of the partnership of which he was a member, a part of the present action. The application for a receiver as a substantive, independent remedy, I presume, will not be seriously urged.
The application must be denied, with ten dollars costs to each of the parties opposing the motion.