Hamilton Trust Co. v. Dickerson

Headnote

Hamilton Trust Co. v. Dickerson, 173 App. Div. 900 , affirmed.

Appeal from a judgment of the Appellate Division, of the Supreme Court in the second judicial department, entered March 9, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mortgage on real property. The mortgaged property was conveyed to the defendant Dickerson, the mortgagor, by Joseph F. McClean, as sole acting executor of the will of Sara McCarty, deceased. Sara McCarty acquired title to the property from her brother John McCarty. Foreclosure search disclosed an uncanceled lis pendens against the property in an action in the Supreme Court, Kings county, by one J. K. 0. Sherwood on behalf of himself and all other creditors of John McCarty, deceased, against McClean, as executor of Sara McCarty, and others, to set aside as fraudulent the conveyance to Sara McCarty. Because the defendant Flynn was made a defendant in that action as a creditor of John McCarty, Flynn and Faber, the appellant herein as receiver, together with the other creditors of John McCarty, were made defendants in this action. The Sherwood suit was tried and disposed

of and the its pendens was canceled and this action was discontinued as against all of the creditors of John McCarty, deceased, except Faber, as receiver, who in his answer alleged that the acts and transactions of Joseph F. McClean, as sole executor”of Sara A. McCarty, deceased, with respect to said real property, were in contravention of the provisions of the will of Sara A. McCarty, deceased, and invalid.