Johnson v. Golder — 43 N.Y. St. Rep. 487

Majority

p. 487

James M. Johnson et al., App’lts, v. Emily Golder, Impl’d, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed March 8, 1892.)

Headnote

1. Pleading—Demurrer—Redemption of mortgaged premises.

In this action to redeem mortgaged premises it was alleged in the complaint that plaintiff was seized of the premises subject to a mortgage, which was assigned by mortgagees to him, and he to B., there being due $1,0 0 thereon; that B. foreclosed it. and fraudulently omitted plaintiff as a party, and by perjury obtained a judgment for $5,869; and that on the sale it was bought by defendant, Louisa E. Bates; that she and her husband executed a fraudulent mortgage thereon to defendant Golder, and

p. 488

then conveyed the premises to D., and then on a foreclosure that C. bought them in, and the relief demanded was that defendants account for rents, etc., received largely in excess of the mortgages; that plaintiff be at liberty to redeem, ana that the pretended mortgage be cancelled. A demurrer to the complaint was sustained as to Golder, and the complaint was dismissed on the ground that it did not state facts sufficient to constitute a cause of action. Meld, error, and that by the demurrer Golder admitted the allegations as to rents, and plaintiff was entitled to an accounting.

2. Same.

The defect alleged on behalf of Golder was that plaintiff was not a necessary party to the first foreclosure, as it did not appear upon the fact of the complaint that he was the owner of the fee because it was not alleged that Mrs. Johnson, from whom plaintiff acquired the-fee, was then dead. Held, that under the present practice, if a more precise statement was desired, defendant should have moved to have the complaint made more definite and certain.

Appeal from a judgment of the general term of the city court of Brooklyn, which affirmed a judgment entered on the decision of a special term of that court sustaining the respondent’s demurrer to, and dismissing the complaint on the ground that it does not state facts sufficient to constitute a. cause of action as against her.

It is .alleged in the complaint that about February 13, 1880, James M. Johnson, one of the plaintiffs, became seized in fee of the premises described in the complaint, subject to a mortgage executed April 27, 1854, by a former owner to secure the payment of $3,300, with interest, on the 27th of April, 1857, which mortgage, it is alleged, was duly assigned November 26, 1859, by the mortgagees to James M. Johnson, who, November 12, 1879, duly assigned it to Henry W. Bates, at which date there was due and unpaid thereon only $1,000. It is also averred that May 19, 1880, Henry W. Bates began an action to foreclose the mortgage and fraudulently omitted to make said Johnson, the owner in fee, a party to the action, and by perjury obtained June 12, 1880, an adjudication that there was then due on the mortgage $5,869.87 and for a sale of the premises, which were thereafter sold under the judgment and were bid in by Bates, who assigned his bid to Alexander B. Crane and Louisa E. Bates (now the wife of Henry W. Bates), and that July 23, 1880, the referee conveyed to them, and that May 10, 1881, Crane conveyed his interest in the premises to Louisa E. Bates.

It is also averred that- February ■ 10', 1885, Louisa and Henry W. Bates fraudulently executed to Emily Golder a mortgage on tlje premises to secure the payment of $2,500 which was recorded -and became due in 1887; and that February 11, 1885, Mr. and Mrs. Bates fraudulently conveyed the premises to Francis A. Denike, and that thereafter Emily Golder foreclosed her mortgage without making James M. Johnson a party to the action, and July 11, 1889, the premises were sold under the judgment and October 14, 1889, were conveyed by the referee to Samuel F. Cowdrv.

The plaintiffs also allege -that before this action was begun James M. Johnson conveyed to his co-plaintiff a three-fourths interest in his claim against the defendant, and also that: “ 19. That the said defendants Henry W. Bates, Louisa E. Bates, Emily

p. 489

Gkilder and Samuel F. Cowdry have collected and are collecting the rents for the said premises which amount to the sum of $600 per annum, as plaintiffs are informed and verily believe.” “ 20. That the rents, profits and income of the said premises have been collected and received-by the defendants, and have largely exceeded the amount due upon both mortgages.” A judgment was demanded that the defendants account for all the rents, profits and income received by them, or either of them, and that the plaintiffs be at liberty to redeem upon payment of whatever may be found due, which amount they offered to pay. Among other relief demanded, it was asked that the pretended mortgage made ;o Emily Golder be cancelled and stricken from the records. To this complaint Emily Grolder demurred upon the grounds (1) that two causes óf action were improperly united therein; (2) that as against her it did not state facts sufficient to constitute a cause of action.

Ira Leo Bamberger, for app’lts; F. H. Cowdrey, for resp’t

is urged in behalf of the demurrant that it does not appear upon the face of the complaint that James M. Johnson was the owner of the fee of the mortgaged premises, and a necessary party to the action begun by Bates May 19, 1880, to foreclose the first mortgage, because it is said that it is not alleged that FTanetce Pontau Johnson was then dead. It is averred in the ninth subdivision of the complaint that she died in 1880, leaving a last will and testament, which was duly probated February 13, 1880, under which James M. Johnson, as it is alleged, acquired the fee of the land subject to the amount due upon the mortgage of April 27, 1854, foreclosed by Bates. The death of Mrs. Johnson in 1880 is alleged in positive terms, and the only inference which can be drawn from the averment that the will was probated prior to the date when the first foreclosure action was begun is that the testatrix died before that time, and this is the reasonable and fair inference to be inferred from the allegation. This alleged defect would have been barely a sufficient ground to support a special demurrer under the practice existing prior to the Codes, but under the present practice, if a more precise statement was desired, the defendant should have moved that the complaint in this particular be made more definite and certain. Marie v. Garrison, 83 N. Y., 14 ; Lorillard v. Clyde, 86 id., 384; Milliken v. W. U. T. Co., 110 id., 403; 18 St. Rep., 328 .

The more serious question is whether sufficient facts are stated in the complaint to entitle the plaintiffs to a judgment against the demurrant for a,n accounting. It is alleged that Louisa E. Bates and Henry W., her husband, executed February 10, 1885, a fraudulent mortgage to Emily Grolder for $2,500, which was after-wards foreclosed by her, and that the premises were bid in and conveyed to Samuel F. Cowdrey, one of her attorneys of record in that action. It is also averred that Mrs. Grolder, Henry W.

p. 490

Bates, Louisa E. Bates and Samuel F. Cowdrey have collected the rents of the premises amounting to more than $600 annually which, as alleged, are largely in. excess of the amounts, due on both mortgages. By the demurrer Mrs. Colder admits these allegations, and taken in connection with the other averments in the complaint, we think they state a cause of action for an. accounting against her within the cases hereinbefore cited.

The first ground of demurrer, that two causes of action were improperly united, was not argued by the respondent, and we think that but a. single cause of action is stated in the complaint, to wit. for an accounting and a redemption of the land by the payment of the just claims of the defendants, some of whom are alleged to have acted fraudulently. ■

The judgment of the general and special terms should be reversed, with costs, and leave granted to the respondent to withdraw her demurrer and answer upon the payment of the costs thereof within twenty days.

All concur.