Gregory v. Gregory

It does not appear to me to be necessary, upon this appeal, to express an opinion whether it was the intention of John Gregory, by the second item of his will, to devise his real estate to his wife and children, directly, without limitation as to proportions, or, to give all his estate, personal as well as real, to his executors in trust to receive the income of the realty and pay over to the wife so much thereoi as should be necessary for the support of herself and his four minor children, and the education of the latter, until his youngest child should reach the age of twenty-one years, and then to devide the entire estate between the wife and children in certain definite proportions. For, if a devise in trust was designed by the testator, such trust was void by the statute, because it involved an illegal suspension of the power óf alienation; and, therefore, either the wife and children became entitled to an absolute estate in the land, as devisees under the will, or it descended to the testator’s heirs at law ; and, in either case, the children are, at least in part, the owners in fee of the lands described in the complaint and covered by the order appealed from, subject, of course, to such equities, if any, as existed against them in favor of the plaintiff at the time of the death of John Gregory. The children of the decedent, therefore, being the owners in fee and in possession of the lands which are, as to them, the subject of the action, are entitled to the uninterrupted enjoyment of them, and to receive the rents and income thereof, unless the plaintiff, by the papers read upon his motion has proven facts, sufficient, at least prima facie, to entitle him to a judgment in this action against such legal owners, charging the property for the satisfaction of some equitable interest therein in his favor.

The first suit, brought some ten or twelve years ago, and which is still pending, is between the same parties as plaintiff and defendants, respectively, in*29volves, substantially, the same cause of action, and demands for the plaintiff, so far as the lands are concerned, similar relief to that prayed for in the complaint in this the second action.

As I deem it improper to express any opinion, unnecessarily, upon this interlocutory question, touching the merits of the action, which may, .possibly, embarrass the court upon the final hearing, I will not here discuss the question as to the effect of the reversal or partial reversal of the judgment before Justice Hoeem ak in the first suit, beyond this :—Either the rights of the plaintiff in this action as against the children of William Gregory are fully and finally adjudicated and determined by the judgment in the first suit dismissing the complaint as to them, or, the effect of the reversal then was to open the judgment as to such children, so as to leave or reinstate them as parties defendant in the first suit, precisely the same as if no judgment had been rendered at special term in their favor; and, in either instance, it appears to me, the prosecution of this action cannot, properly, be permitted for any purpose so long as the first suit remains pending and undetermined. For, if the judgment in favor of the children is to be considered as final, the claims of the plaintiff against them because of his alleged equitable interest in the lands, have been fully adjudicated and determined thereby ; and such judgment is. therefore, a perpetual bar to any other suit or proceeding against them by the plaintiff, for the same cause of action. Or, if the children of John are still parties defendant in the first suit, the plaintiff may there have all the remedy, either by way of interlocutory orders or final decree, to which he can be entitled in a subsequent action between the same parties and embracing the same subject matter and cause of action. I may add that all the facts necessary to constitute a yalid plea in bar in case the former judgment is. in law, *30- final as to the children, or in abatement, if the first action is still pending as to them, are set forth in the answer, as they well might be (Code, § 150 ; Sweet v. Tuttle, 14 N. Y. [4 Kern.], 465 ; Bridge v. Payson, 5 Sandf., 210), and those facts were proven upon the motion. It appears to me, therefore, that whether the facts so set forth in the answer are to be considered as constituting a sufficient plea in bar or in abatement, the order appealed from ought not to have been granted.

Be that, however, as it may, it is quite clear that an order restraining the defendant children of John Gregory from selling the lands of which they are the owners in fee, or from collecting the rents thereof, and appointing a receiver of the same, cannot properly be granted in an action like this, unless the plaintiff es-' tablishes the fact upon his motion, by legal evidence, that he has some equitable interest in the lands which will entitle him to the ultimate possession of the same, or some part or portion thereof; and so this court held, in effect, upon an appeal from an order amplifying the powers of a receiver of the same lands, in the first suit.

The only evidence given by the plaintiff, upon the motion, touching his alleged interest in the real estate, was contained in the complaint, verified by him, in an affidavit stating. that the facts. therein set forth were true of his own knowledge. There are two averments in the complaint, so verified, which the plaintiff’s counsel claims to be sufficient to prove that he has an equitable interest and ownership in the property, to wit:—First, the plaintiff alleges that by the mutual determination, consent and understanding of himself and his brother John Gregory, portions of the proceeds and profits ,of their partnership business were to be, and, from time to time, were, invested in the purchase of the several parcels of real estate therein described, *31and that by a like mutual consent and understanding between them, the deeds and title of all the property so purchased were taken in the name of John Gregory, and thus stood at the time of his death. The second allegation relied upon, sets forth the fact that an order was made in the first suit directing certain issues to be tried before a jury ; that upon the trial of such issues the jury found that “each of said partners” (i. e., John and William Gregory), “was entitled to one half of all the proceeds, profits, and assets of said partnership, whether invested or existing in real or personal estate /” and that such verdict was confirmed by an order of the court.

It will, readily, be perceived that the verdict in question does not tend to establish the fact that the profits or assets of the partnership were invested in the particular lands which, so far as the children of John Gregory are concerned, on the subject of this action, or in any lands whatever, nor that this or any real estate ever belonged to the partnership firm. In fact, it is, merely, an attempt to determine by the verdict, of a jury a question of law in regard to the rights of the parties to the action ; the- very question, indeed, that must finally be decided by the judgment of the court as matter of law, after the proofs are closed. Indeed, it may be observed here, no question was submitted to the jury relating to the lands mentioned in the complaint or any other real estate. The verdict, therefore, proves nothing in regard to the alleged equitable interest of the plaintiff; and it follows that the only evidence before the court upon the motion, touching that important fact, must be found, if at all, in the statement of the plaintiff that the lands in question were purchased with the funds of the partnership, and conveyed to John Gregory, under an understanding and agreement between the two brothers to that effect.

That statement, it will be observed, relates to and *32covers agreements and transactions had between the plaintiff and John Gregory, under whom his children, the real defendants here, derive their title to the lands which are the subject, and to reach which in equity is the object, of this action. The plaintiff, therefore, could not be permitted, himself, to testify to those facts as a witness, upon the trial of the suit; such facts being covered by the exceptions continued in section 399 of the Code.

It was the common practice of the former court of chancery to grant injunctions upon the unsupported affidavits of complainants, although such complainants were not entitled to be examined as witnesses in their own behalf upon the trial; and that practice is still continued by the courts under our present system. But, I know of no instance in which an injunction pendente lite, or an order appointing a receiver, founded, solely, upon facts set forth in an affidavit of the plaintiff, which, from their nature, it was impossible for the defendant to disprove or controvert, has ever been upheld. Indeed, it appears to me that a practice which permitted the granting of injunctions, or the appointment of receivers, upon affidavits of that character, would be so manifestly unjust and inequitable, that it ought not to obtain. Taking this case, itself, as an example;—it is easy to see, in the first place, that it was utterly impossible for the defendants to prove upon the hearing of the motion that no such understanding or agreement between the plaintiff and his deceased partner as is set forth by the former in his affidavit, was had or made; and, secondly, that either the agreement is in writing or some person other than the plaintiff knows and can testify to the necessary facts, or, if not, such facts cannot be proven by him upon the trial. If, then, the agreement was in writing, or if the facts could have been proven upon the motion by the affidavit of another person, such *33writing or affidavit should have been produced by the plaintiff at the hearing, and his failure to present the same is presumptive evidence that he was unable to do so, and, consequently, that he cannot prove such facts upon the trial of the action so as to entitle himself to a judgment against the owners of the land, by reason of any equitable interest therein, founded upon such agreement; and, certainly, it would be unjust and inequitable to enjoin a defendant or appoint a receiver of his property, during the progress of an action to a trial in which there is no reason to suppose the plaintiff can succeed. Without here considering the question as to whether the prohibition in the Code against the examination of a party, in his own behalf, in relation to his transactions with a deceased person, applies to affidavits used upon a motion in an action. I am, therefore, of opinion that the affidavit of the plaintiff, alone, in regard to his dealings with his brother, was insufficient to entitle him to the order appealed from.

I am also of opinion, that the order appealed from was not necessary for the protection of the alleged interest of the plaintiff in the real estate in question, and, for that reason, that it was improperly granted.

The complaint alleges, that, at the time of the death of John Gregory, the real estate was worth upwards of seventy-five thousand dollars, over and above all incumbrances, that it has largely increased in value, and that the income of the same, after paying taxes, assessments, and interest on mortgages, is more than fourteen thousand dollars per annum, and that the evidence taken before the referee, in the first suit, shows that there is due to the plaintifffor Ms share of the assets and profits of the copartnership, more than fifty thousand dollars. As the referee was directed to ascertain and report the amount due the plaintiff as his share of the assets of the partnership, whether existing 3 *34in real or personal estate, it may be assumed that the value of the lands in question is included in that • calculation ; and as the rents and income of the property amount to fourteen thousand dollars a year, alter paying taxes, &c., it may safely be inferred that the real estate is worth at least twice as much as the amount of the interest therein which the plaintiff claims to have proven before the referee. If, then, the plaintiff shall ultimately succeed in establishing either that the amount of his interest in the assets constitutes a debt against the estate of John Gregory, for the payment of which the lands in question are equitably chargeable, or, that he is, in equity, the owner of one-half of such lands, and is entitled to a conveyance thereof to himself in fee, there can be no doubt the property is fully sufficient to satisfy his claims, without resorting to the rents which may accrue hereafter during the pendency of the action. It seems clear, therefore, that no receiver of such rents nor any order restraining the defendants from collecting the. same, was necessary for the protection of the interests of the plaintiff; and, the filing of a Ms pendens notice will more effectually preserve the equitable interest which the plaintiff may have in the lands, themselves against a sale and conveyance by the defendants, than would an injunction restraining the owners in fee from selling the same; inasmuch as the former would be, in law, a notice to every purchaser, however innocent, while the latter would not. As, then, the interests of the plaintiff in the lands could have been fully protected by the filing of a Ms pendens, it follows that an order enjoining the defendants and appointing a receiver was unnecessary, and, therefore, improper (Mills v. Mills, 21 How. Pr., 437 ; Stevenson v. Fayerweather, Id., 449 ; Osborn v. Taylor, 5 Paige, 515 ; Waddell v. Brune, 4 Edw., 671).

For these reasons, I think the order appealed from should be reversed with costs.

Considering this appeal (without at present adverting to the additional allegations in the complaint with respect to the defendants’ responsibility, the design to dispose of the property, and their confederation), there appear to be but two motives for bringing the action—but two objects to be gained by it. Both of these objects are to overrule previous decisions of this court made in the former action.

The plaintiff has a general receivership already appointed in the former action, as against the executor and executrix. That receivership still stands. There can, therefore, be nothing gained by ordering another similar receivership in this action.

Unless, then, the object is to get an injunction and receivership which will either appoint a receivership as to the executor and executrix specifically, over the real estate mentioned in the complaint, or one which will affect the interests of the children and widow in the lands to a greater extent than they can be affected by an order against the executor or executrix only,— there can be no necessity for this suit.

As to the appointment of a receivership specifying in the order that the receivership is appointed over the specific real estate mentioned in the complaint, that was attempted to be done in the other action. It was then held that there was no sufficient proof that the property belonged to the partnership. The proof in this case is no stronger. As regards the executors and executrix, the proof can be supplied in the former action. A subsequent action should not be allowed for that purpose.

But as regards the widow and children, however, the former action having been dismissed as to them, no order for a receiver, either general or specific, can be made therein affecting their interests in the property any further than they may be affected by a judgment *36or order against the executor and executrix ; to that extent they may be affected by any order or judgment made in the former action, and, therefore, to affect them to that extent this action is unnecessary.

If, then, it is sought to affect their interests to a greater extent than they can be by an order or judgment against the executors or executrix only, it is necessary that they should be parties to the suit.

It is then to be considered whether the interests of the children and widow in the real estate can be affected by means of this action to a greater extent than through an order or judgment rendered against the executors and executrix in the former one.

In this action the plaintiff alleges that the real estate in question, although standing in the individual name of John Gregory, yet, in fact, was partnership property, and that he, as one of the partners, is entitled to the one equal undivided half, and prays that his right to the moiety, as one of the partners, may be established by the court, and for a partition of the real estate.

In the previous action he made the same allegations, and prayed for same relief.

On the trial of that action on the merits, it was decided that the plaintiff was not entitled to the relief asked for in this action, which was part of the relief prayed for in that action ; but the plaintiff having in that action also prayed that an accounting may be had of the business of the said copartnership; and that by the judgment of this honorable court the plaintiff may be declared to be entitled to such sum of money as upon such accounting may appear to be due to him, and payment thereof may be ordered accordingly.

The said accounting was taken therein, whereon it was found that John Gregory, deceased, was indebted to the plaintiff in the sum of twenty thousand two hundred and ninety-seven dollars and thirty-five cents.

*37Judgment was therefore entered in that action, as above set forth.

This judgment in favor of the widow and children, so long as it stands unreversed and unimpaired, is a conclusive bar against any action by plaintiff against them to affect their interest in the property, on the ground that it belonged to a copartnership of which plaintiff and John Gregory were equal members.

That judgment is consequently a bar to this action, so far as the parties defendant, consisting of the widow and children, are concerned, unless the reversal of so much as was against the executor and executrix had the effect of also reversing that part wh'ch was in favor of the widow and children. If, however, the reversal had such an effect, then that action is still pending as to the widow and children, and all the relief asked for in this, can be had in that.

It is urged, that immediately on one’s death, the law, so to speak, impounds all his estate, real and personal, for the payment of his debts, and that, consequently, one claiming to be a creditor at large, may, if the personal estate is insufficient to satisfy his claim, or if it has been distributed and the heirs or devisees are a,bout to dispose of the real estate, have an injunction to restrain said disposition until he shall have established his claim; and in case he shall succeed in establishing, then until he shall have collected; and further than this, if the real estate is not sufficient value to satisfy the alleged claim and interest thereon, that a receiver may be appointed of the rents and profits, to collect and receive the same and apply them on the claim when' established, and the interest thereon.

There may be force in the proposition, but I do not propose to examine into it, as it is not presented by the case made by the complaint.

This action is not based on a claim claimed by *38the plaintiff to be due him from the deceased, and it is not sought to subject the real estate mentioned in the complaint to the payment of any such indebtedness, as being property of the deceased, and as such, subjected by the law to the payment of his debts.

, On the contrary, the complaint seeks to reach the individual moiety of the real estate, and the rents, issues and profits thereof, on the ground that the same belong to, and are the property of the plaintiff, by reason of the said real estate belonging, as claimed, to the copartnership, composed of the plaintiff and the deceased, as equal partners.

This, as before observed, is the ground-work of, and claim in, the complaint in the former action. That action is still pending as against the execntor and executrix, and can be pleaded by them in abatement of this; while as to the widow and children, if the reversal of that part of the special term judgment in the first action, which gives a personal judgment against the executor and executrix, operates as a reversal of the whole of that judgment, then they can plead that former action in abatement of this; if, however, that reversal does not affect so much of that judgment as dismisses the complaint in that action as against the widow and children, then they can plead that judgment in bar of this action.

The additional allegations respecting the confederation of the defendants to protract the reference, their responsibility and design to dispose of the property, taken in connection with the other allegations and facts in the case, afford no ground for an injunction or receiver.

The referee and the court have full control in the previous action over the reference therein depending, and can readily prevent any unreasonable protraction thereof.

As regards the disposition of the property, a no *39tice of Us pendens will effectually protect all the plaintiffs’ rights in that respect if this action is properly conceived.

Insolvency will frequently warrant the appointment of a receiver, but never unless it also appears that the plaintiff has a cause of action against the defendant over whom the receiver is to be appointed, that recovery therein is at least probable, and the benefit to result from such recovery will either be wholly lost or substantially impaired by reason of said insolvency, if a receiver is not appointed.

As already held, there is no probability of a recovery in this action ; and as far as the other action is concerned there is already a receiver appointed therein, and if any further receivership is desired in that action, plaintiff must be remitted to his motion therein.

The result may be that plaintiff has lost whatever right he may have had to claim an ownership in the lands as tenant in common with - the defendants. If such is the result, it is due to plaintiff’s own action in electing to take the benefit of and rely on the personal judgment in his favor against the executrix and execution, and by reason of such election omitting to appeal from the judgment against him in favor of the widow, heirs and devisees.

Under these circumstances 1 think that neither an injunction nor a receivership should be granted in this action.

I concur in reversing the order appealed from, with ten dollars costs.

Spencer, J., took no part in the decision.