Silsbee v. Smith , 41 How. Pr. 418 ( 1871 )

By the Court, Mullin, P. J.

There is but a single count in this complaint, and upon the facts alleged in it, the plaintiffs demand, as relief, that the sales of real estate owned by the testator, Ziba W. Cogswell, at the time of his death, and devised by him to his widow for life, made by the surrogate, on the petition of his widow, who was appointed administratrix with tlie will annexed, in order to pay the testator’s debts, should be set aside as irregular and void; that the sales of portions of said real estate, on foreclosure of mortgages given thereon by the testator, should also be set aside for irregularity ; and that certain other mortgages be set aside; that deeds of portions of the lands sold, as aforesaid, be set aside as fraudulent; that an accounting by the administratrix with the will annexed be ordered; that an account of the rents and profits received by the widow of the testator during her life, be also directed, as well as of the assets which came into her hands as administratrix. ,And that an account of the rents and profits since the death of Mr. Cogswell, be also taken, to the end, as I infer, that the real estate which descended to the heirs on the death of the widow, may be relieved from the lien of the debts owing by the testator in his lifetime. The plaintiffs do not, in terms, ask to redeem the lands from the liens remaining unpaid thereon; but such was doubtless the intention of the plaintiffs’ counsel. But there is no offer to pay such liens, should anything remain unpaid after applying the amount arising from the sale of the personal estate, and from the income of the real.

1st. In order to obtain an account of the personal estate which came into the hands of the administratrix, she being dead, her personal representatives are indispensable parties. Those defendants who are in possession of the land sold by the surrogate, to pay the testator’s debts, are interested in having Mr. Cogswell’s representatives made parties, to the end that it may be established, if it can be, that debts of the testator were unpaid at the time the order of the surrogate to sell was made.

2d. An offer to pay whatever may be found due upon the mortgage, was an indispensable averment in a bill to redeem, or a tender of an amount which the plaintiffs concede to be due. Without one or other of these aver- • ments, the complaint does not set forth a cause of action, (Beekman v. Frost, 18 John. 544. Frost v. Beekman, 1 John. Ch. 288.) There is a misjoinder of causes of action in the complaint, and this misjoinder has led to bringing in parties proper as to one cause of action, but wholly unnecessary as to several others. This mingling of causes of action is claimed to be analogous, in principle, to the practice which permits, in creditors’ bills, the making of sundry debtors, or fraudulent assignees, or grantees of the judgment debtor, parties defendant. But there is no analogy in the cases. A creditor’s bill has but one object —the satisfaction of the debt; and all who are liable to contribute to that object are proper parties.

[Fourth Department, General Term, at Rochester, March 6, 1871,

But in this case, the objects of the action are numerous, and in some respects inconsistent. Such pleading cannot be sustained.

The order appealed from is affirmed, with leave to the plaintiffs to amend, on payment of costs of the demurrer and of this appeal, within twenty days after service of a copy of the order.

Mullin, P. J., and Johnson and Talcott, Justices.]