Wood v. Hollister

3 Abb. Pr. 14 | N.Y. Sup. Ct. | 1856

Davies, J.

complaint is filed, to procure the judgment of the court that certain conveyances therein mentioned of lands situated in the city of Utica, were fraudulent as against the plaintiffs, and that one of the defendants now holds and has always held the legal title to said lands fraudulently, and that it be declared by the court that the same are held in trust for the plaintiffs.

Section 123 of the Code provides that actions are to be tried in the county where the subject matter thereof is situated, in the cases provided by statute. 1. For the recovery of real property or of an estate or interest therein or for the determination in any form of such right or interest.

Is this an action for the determination of any right or interest in real property? If so, the Code is imperative that it must be tried in the county where the property is situated.

The complaint seeks to obtain the judgment of this court that certain conveyances stated therein are fraudulent, and by this means seeks to appropriate the real property to the payment of the plaintiffs’ judgment. The plaintiffs insist that the-rights of the defendants in said real property are to be subordinated to theirs.

From this statement of the plaintiffs’ claim, it is quite manifest that their action is for the determination of interests in real property, and must therefore be tried in the county where it is situated. This point was expressly decided by Edwards, J., in Morris v. Remsen, (3 C. R., 138).

But if there was any doubt on this point, it is I think entirely removed by the other claim of the plaintiffs that one of the defendants may be declared to hold the said real property in trust for them ; in other words, that she be declared trustee-of said real property and they the cestui que trust, and entitled as such to an interest therein. Certainly no one can doubt that the establishment of this claim involves the determination of an interest in real property.

I could not hesitate in the absence of any authority, in saying that this case came directly within the letter of subdivision 1, of section 123, of the Code. But the case of Ring v.. M’Cann, (3 Sand. S. C. Rep., 524), is an authority in point.

In that case the complaint showed a purchase of a farm in-Queen’s county, made by the defendant, who took the deed in Ms own name, but made with the funds of Mr. John Masony and upon a general trust for the benefit of James Mason, son of John. The plaintiff, who claimed as grantee of James the cestui que trust, prayed that the defendant might be directed! to convey the legal title of the farm to the plaintiff, or to pay the plaintiff the money advanced by John Mason.

The defendant demurred among other grounds, to the jurisdiction, that the action was not brought in the proper county;- and the general term of the Superior Court, affirming the judgment of the special term, sustained the demurrer both on the-ground that the action was brought for the recovery of real property in a distant county, and that it was brought for the-determination of an estate right or interest in such property, and that consequently the Superior Court had no jurisdiction of the action.

Sandford, J., in delivering the opinion of the court, cites- and approves a decision just previously made, by Mr. Justice Mitchell in this court, in which he took the same view of the extent of the provision referred to, and applied it to an action brought for the purpose of declaring a conveyance of landfrawdulent, and to home the gra/ntee claiming the land as his own declared to be a trustee for others.

An order must be made changing the place of trial in this case from the city and county of New York to the county of Oneida, with $10 costs of this motion to abide the event.