Bush v. Treadwell — 11 Abb. Pr. 27

Majority

p. 27

BUSH against TREADWELL.

Court of Appeals,

January, 1871.

Headnote

Place oe Teial.—Local Actiok.

An action of an equitable nature, to have the title to land declared to be in the plaintiffs, on the ground that the deed conveying the title to the defendant is a mortgage, and asking for a conveyance thereof to the plaintiffs and for an accounting by the defendant, is an action which must be tried in the county where the property is situated, for it is an action for the recovery of an interest in real estate and for the determination of such interest, within the meaning of subdivision 1 of section 123 of the Code of Procedure.^[1]

Secrion 123 of the Code of Procedure,—which provides that certain actions shall be tried in the county in which the subject of the action or some part thereof is situated—applies to equitable, as well as to other actions.

Appeal from an order.

The object of this action, which was brought by Daniel B. Bush, and others, in the supreme court in Monroe county, against Henry R. Treadwell, was to have the title to certain real estate in the city of New York declared to be in plaintiffs,—on the ground that the deed conveying the title to defendant was a mortgage,—and for a conveyance thereof to the plaintiffs, and an accounting by the defendant.

The defendant made a motion at special term, to change the place of trial from the county of Monroe to the city and county of New York, on the ground that

p. 28

the latter was the proper county, under section 123 of the Code. The motion was denied, and on appeal to the general term the order was affirmed, upon which the defendant appealed to this court.

H. O. Chesebro, for defendant, appellant,

Cited Leland v. Hathorne, 9 Abb. Pr. N. S., 97, as decisive of the question, and as overruling Hubbell v. Sibley, 4 Abb. Pr. N. S., 403,. upon which the plaintiff relied in the courts below.

Geo. F. Danforth, for plaintiffs, respondents.

I. The cause of action is transitory, and not local. The case is not within section 123 of the Code. (1.) That section relates to actions of legal cognizance only. Hubbell v. Sibley, 4 Abb. Pr. N. S., 403; Rawls v. Carr, 17 Abb. Pr., 96 . (2.) The present action is in equity. The relief sought is an accounting by the defendant in pursuance of his duty as trustee. The accounting may show advances beyond the value of the trust estate, in which case no land will be transferred or conveyed ; or the trial may result in an adjudication that the defendant is not liable to account. (3.) Land is not the primary object of the action ; the plaintiffs seek to establish a trust. That land may be affected by the determination is not sufficient to entitle the defendant, as of course, to a change of the place of trial.

The Code, section 123, provides that “the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject,” &c. “1. For the recovery of real property, ór of an estate or interest therein, or for the determination in any form, of such right or interest, and for injuries to real property.”

p. 29

This action is for the recovery of an interest in real property, and. for the determination of such interest; and the statute declares in plain language, that where such an action is brought it is local, and that this shall be so without regard to the form in which the determination is sought.

The statute covers this action, and is too plain for controversy. It has been supposed by some, that this provision does not apply to equitable actions; but as the statute makes no distinction, courts have no right to make one. If the plaintiffs succeed, they will recover the real estate as effectually and substantially as in an action of ejectment, and there is no possible ground to hold the action transitory without overruling the statute.

The order of the general term must be reversed, and the motion to change the place of trial granted, with costs.

All the judges concurred, except Folger, J., who did not sit.

Order reversed, and motion to change the place of trial to the county of New York, granted, with costs.