Quibell v. Rust — 53 N.Y. St. Rep. 873

Majority

p. 873

Sarah M. Quibell, Resp't, v. Peter C. Rust et al., Impl’d with Johh A. Morris, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Parties—Action to set aside deed.

In an action in equity to set aside a deed given as security to a trustee against a possible claim to be made by his beneficiary because he conveyed

p. 874

.away the life estate at her request without consideration, brought after the death of said beneficiary, her heirs at law and all persons who claim under the deed to the trustee are proper parties.

Appeal from judgment overruling a demurrer interposed by-defendant, John A. Morris, to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

C. E. Coddinglon (Alfred B. Cruikshank, of counsel), for appl’t; Rufus L. Scott, for resp’t.

The complaint states that the plaintiff was the owner of section “A.” of a farm of land in Westchester county, called the “Wetherby Farm” in a partition map on file in the Westchester county cleric’s office. That she was also the owner of another part of said section “A.” which was subject to a life estate of the mother of plaintiff. That this life estate was held by one Rust as trustee for' the plaintiff’s mother. That she agreed to convey the life estate to the plaintiff, which was done under an agreement between the plaintiff, her mother and the trustee, that the plaintiff should convey the first part of section “A.,” above named, to Rust, to hold in trust during the life of 'the mother, as security against any claim she might make on account of her life estate in the parcel in which she had a life estate, and which she requested Rust to convey to the plaintiff. This deed given by plaintiff to Rust was to have no effect after the life estate fell in, but was then to revert to plaintiff. The mother is dead, and the plaintiff seeks to have her title established in the piece given to Rust, trustee, by her. All the heirs-at-law of the plaintiff’s mother are made parties. The complaint makes John A. Morris a party defendant under the statute, that he has or •claims to have some interest in the property. Morris was properly made a party. The action is one in equity to set aside a deed given as security to a trustee against a possible claim to be made by his beneficiary because he, the trustee, had conveyed away the life estate at her request, without any consideration. The heirs-at-law, and all persons who claim under the deed to the trustee, are properly made parties. The question has recently been considered by the court of appeals in Tovmshend v. Bogert, 126 N. Y., 370 ; 37 St. Rep., 488 . The court held in that case that an averment that certain parties “ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to-said premises ” was a sufficient statement of a cause of action upon a demurrer.

The order and judgment should, therefore, be affirmed, with •costs.

Pratt, J., concurs ; Dykman, J., not sitting.