26 Barb. 356 | N.Y. Sup. Ct. | 1858
The plaintiff brought this action as a creditor of Jacob Wood deceased, who died on the 18th day of May, 1842, leaving a last will and testament, by which the real estate, described in the complaint, was devised to the defendants in fee, as tenants in common. The defendants are the children and only heirs at law of Jacob Wood deceased. They would own the land described in the complaint in fee, as his heirs at law, if Wood had died intestate“ and they can claim title to it in fee as- devisees under his will.
The complaint seems to have been framed under the belief that the plaintiff was entitled to have his debt against J acob Wood deceased satisfied out of the real estate therein described, to which the defendants have title in fee as tenants in common, whether they should claim- the same as- devisees of the deceased or as his only heirs at law; and it is probable that the pleader supposed the defendants might be made personally liable for the alleged debt by the judgment in the action. But whatever notions the pleader may have- entertained when- he
Errors in pleadings must now be fatal to the action or defense, or they will be disregarded or cured by amendments in furtherance of justice, both before and after judgment. (Code, §§169, 173, 176.) A plaintiff who expects to recover in an action, when there is a substantial defense to it, solely by reason of defects in the answer, or a defendant who thinks of succeeding in an action upon errors in the complaint, without regard to the merits of his defense, may as well stay out of court as to come in, under the code. (1 Kernan, 368; 3 id. 127, 322. 12 How. Pr. Rep. 322, 293 ; 11 id. 168.) The language of section 176 of that act is imperative, that “the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” And when the courts construe the allegations of pleadings liberally, (as section 159 of the code enjoins,) with a view to substantial justice, parties who are in the right on the merits of cases, will succeed; and the efforts of lawyers over technicalities in pleadings will lose all their chaims. (See 2 Kern. 433.) But I have said enough on this question, and will now proceed to the consideration of other branches of the case.
It does not appear by the pleadings or proofs that the defendants have taken possession of the real estate described in the complaint, or have accepted the devise to them of the same by Jacob Wood deceased; or have promised to pay, or have paid, any portion of the plaintiff’s debt against the deceased ; nor have they sold such real estate, or any part of it, as heirs at law of the deceased; therefore they are not personally liable to pay the plaintiff’s debt. (2 R. S. 454, §§ 47, 49, 51; id. 456, § 60. Schermerhorn v. Barhydt, 9 Paige,
Ho execution can be issued upon the judgment except such as shall require the sheriff to satisfy the same out of the property of the deceased, described in the complaint. (Code, § 289, subd. 2. 2 R. S. 363, § 3; 367, § 25.) Therefore no wrong can be done to the defendants in enforcing the judgment: and inasmuch as their substantial rights have not been affected by reason of the form of the judgment entered against them being different from the one demanded in the complaint, they cannot have a new trial on this branch of the case.
The basis of the action is the debt which Jacob Wood deceased owed the plaintiff; but that is not the gist of it. It is not an action for the recovery of money only, although the ultimate object of it is to obtain money; nor is it one for the recovery of specific real property, for the plaintiffs cannot have the land described in the complaint as the fruits of the litigation; but it is an equitable action to reach certain real estate, which Jacob Wood deceased devised to the defendants, and to authorize its sale for the purpose of satisfying a debt that
If section 73 of chapter 460 of the laws of 1837 applies to suits against devisees as well as heirs, it does not give creditors the right to bring either legal or equitable actions as their fancies may suggest. It has already been shown that devisees may make themselves personally liable to pay the debts of their testator by accepting the devises and promising to pay the debts, and in other ways; and heirs may also make them
At what time did the plaintiff’s cause of action accrue ? The contract, on which the plaintiff founds his claim against the estate of Jacob Wood deceased, bears date the 10th day of April, 1840, The plaintiff and the deceased were partners up to that date. They then had goods on hand, and debts were due them, as partners. The contract dissolved their firm; and it provided for a division of their goods between them, And it showed that the plaintiff was solely responsible for debts which the firm ought to pay, amounting to upwards of $4000; and that the deceased was solely responsible for debts, on .account of the partnership, to an amount exceeding $1000. It was therefore stipulated in the contract, that the plaintiff should, at the proper costs and charges of the parties, take charge of and proceed to collect all the debts due to the firm, and apply the same to the payment of the debts for which each partner was solely liable on account of the firm as above mentioned, and also all debts owing by the firm; and if there should then be a deficiency of debts due to the firm, to pay the debts owing by the firm, and what each partner was solely liable to pay, each partner agreed to pay one half of the deficiency; and if there should remain a surplus after all such payments, then they were to divide such surplus between them.
The plaintiff went on, under this contract, collecting the debts due the firm and paying debts owing by the firm, until March 15, 1852, when he wound up the business, and
The plaintiff was entitled to a reasonable time to collect the debts due to the firm and pay the debts specified in the contract above mentioned, before the deceased could require him to account; and the plaintiff was bound to perform the contract, so far as it could be performed by him, before calling on the deceased for one half of any deficiency which the firm was owing him. Such deficiency could only be ascertained after the plaintiff had collected the good debts due to the firm; and the plaintiff being entitled to a reasonable time in which to make such collections, the half of the deficiency that the deceased owed- him, did not become due until the expiration of such reasonable time. And I am of the opinion that the time between the date of the contract and the death of Jacob Wood, which happened on the 18th day of May, 1842, was not an unreasonable period to allow the plaintiff for collecting the debts due to the firm; and that consequently the plaintiff's cause of action against the deceased for half of the sum in which the firm was indebted to him, did not accrue until the time Jacob Wood died. This gave the plaintiff only two years and thirty-eight days in which to wind up the affairs of a firm whose dealings were quite extended in the credit line; and I think this is a shorter period than it usually takes partners, or their receivers, to close the business that pertains to such firms.
The will of Jacob Wood, deceased, was proved May 23, 1842, and letters of administration on his estate, with his will annexed, were granted on that day to Edward L. Porter and two others as administrators. The plaintiff was prohibited by statute from bringing any suit against the defendants as devisees named in the will of the deceased, in order to charge them with the debt that the deceased owed him, for three years from the time of granting letters of administra
The complaint specified with reasonable certainty the real estate devised to the defendants; and this is a sufficient description of it according to section 44 of the*statute on the subject, (2 R. S., p. 454,) which section is made applicable to actions against devisees, by section 60 of the same statutes. (2 R. S. 456.) Sections 32, 56 and 59 of those statutes, are as follows, to wit:
§ 32. “ The heirs of every person who shall have died intestate, and the heirs and devisees of any person who shall have died after the making of his last will and testament, shall respectively be liable for the debts of such person, arising by simple contract or by specialty, to the eostent of the estate, interest and right, in the real estate which shall have descended to them, from, or been devised to them by, such person.” (2 R. S. 452.)
§ 56. “Devisees made liable by the foregoing provisions, to the creditors of their testator, shall not be so liable, unless it shall appear that his personal assets, and the real estate of the testator descended to his heirs, were insufficient to discharge such debt; or unless it shall appear that after due proceedings before the proper surrogate, and at law, the creditor has been unable to recover such debt, or some part thereof, from the personal representatives of the testator, or from his next of kin, or legatees, or from his heirs.” (2 R. S. 455.)
If sections 33 and 36 of of the same statutes are made applicable, by the sixtieth section thereof, to actions against devisees, as I think they áre, it is unnecessary to quote them herein, for they are substantially like sections 56 and 59 above set forth.
The testator had no real estate that descended to his heirs. He devised all he possessed. The plaintiff clearly established, on the trial, that the testator’s personal assets were insufficient to discharge the debt on which this action is based; and that they were exhausted in paying the testator’s debts, by due proceedings before the surrogate of Tompkins county, and that the plaintiff’s debt was left unpaid. The plaintiff could not have sustained any action at law against the legatee named in the will, for the reason that such legatee did not receive the note bequeathed to him by the testator. The presumption is, from the facts proved, that the administrators kept the note and collected it, if it was collectible, and paid the avails of it to the creditors of the testator.
Hone of the testator’s next of kin or heirs received any personal property which he owned at the time of his death. The administrators did not dispute the plaintiff’s claim against the deceased, but paid as much of it as they could with the assets they received ; therefore there was no chance for the plaintiff to prosecute them, and no remedy was left to the plaintiff to collect his debt out of the estate of the testator, except to institute this .action. And I am of the opinion his proof on the trial fully came up to the requirements of the statutes above mentioned, and that he was entitled to the judgment which he recovered.
The defendants did not set up in their answer, or offer to prove on the trial, that the testator owed any other debts than
There is palpable equity in applying the real estate described in the complaint to the payment of the plaintiff’s debt, for the reason that by the terms of the will of the deceased, the debt is impliedly charged upon such real estate. The defendants were to have such real estate after the payment of the testator’s debts. (See Lupton v. Lupton, 2 John. Ch. R. 614; 7 id. 116 ; 1 Comst. 120, 298; 1 Paige, 188; 9 How. Pr. R. 214; 2 Comst. 500; 6 Cowen. 333; 5 Barb. 312, 398; 11 Paige, 49.)
The plaintiff was entitled to interest on the moneys he advanced individually in paying the debts of the firm; and when it was agreed between the plaintiff and the deceased that the former should, “at the proper costs and charges of the two, take charge of and proceed to collect all the debts due to the said firm,” the deceased became liable to pay the plaintiff one half the value of his services, which he should necessarily render in collecting such debts; and for this reason I think the referee did right in allowing the plaintiff commissions on the moneys collected by him for the firm. The plaintiff rendered these services after the firm was dissolved, and while the deceased was doing nothing for its benefit; and I infer from this, as well as from the language of the agreement between the partners, that it was understood by. both of them that the plaintiff was to be paid for all services necessarily rendered by him in collecting the debts due to the firm.
And I am of the opinion the judgment in the action should be affirmed with costs; but the course which the cause has taken, has been such, that the defendants should not be made
Mason, J., concurred in affirming the judgment. Gray, J., dissented.
Judgment affirmed with costs, to be collected only out of the real estate described in the complaint.
Gray, Mason and Balcom, Justices.]
