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Peck v. Brown

25 N.Y. Super. Ct. 119 2 Rob. 119 Court N.Y. Super. Ct. Decision date 1864-02-13 English

Delivered by Robertson, J.

Contents

Majority

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Zachary Peck, plaintiff and respondent, vs. Eliza J. Brown, defendant and appellant.

Headnote

In. an action brought by the plaintiff to quiet his title to land conveyed to him. by the defendant’s husband in trust to pay debts, wherein besides seeking the relief granted by the statutory provision for enforcing the determination of claims to land, (2 M: S. 313, § 3,) the complaint demanded as relief that such title might be “ adjudged free and clear from any right claimed by the defendant,” and she set up as a defense a prior right under a deed with full covenants, of the same premises, executed directly to her by her husband, (before the conveyance thereof to the plaintiff, under WHick the latter claims,) pursuant to a prior agreement between herself and her husband for a valuable as well as a godd consideration, with intent to vest in the defendant the fee simple absolute of such land and settle the same upon her as a provision for her, and as her separate estate, it being suited to the means and liabilities of the husband at the time. On demurred to an ariswer containing such defense, Held,
1. An action under such a provision is subject to the same rules as any other action, by the Code of Procedure. The same defenses may be set up therein, and equitable relief may be demanded by way of counter-claim in the answer.
2. The Vóidness at laW of a deed directly from a husband to a wife does not interfere with the equitablé rights of the latter under it.
3. The statute of 1849, which excludes a gift from a husband to a wife from the cases in which it bestows on the latter the powers of a feme sole, does not
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interfere with the exercise of an equitable jurisdiction to protect the wife in such a case as a ward in chancery or cestui que trust of the husband.
4. The equity of the wife in such case, if enforceable only as a trust, is not included in the ■ prohibition by the Revised Statutes of any other uses and trusts in land but those therein enumerated, as it is created by implication of law; which kind of trusts are expressly excepted from such prohibition.
5. That as the demurrer admitted" such a settlement to have been suited to the means of the husband; made for a valuable as well as a good consideration and in pursuance of a previous agreement, equity would sustain it against even the creditors of the husband.
6. That the accomplishment of all the purposes of a trust, which destroyed all the interest of the trustee thereof in the land held by him, might be set up as a defense to any action brought by him to litigate the claims of others to such land.
(Before Robertson and Gabvin, JJ.)
Heard December 12, 1863;
decided February 13, 1864.
Appeal from an order sustaining a demurrer to the second, third and fourth defenses of the answer.
The complaint alleged that on the 22d of October, 1855, William H. Brown, owning four lots in Twelfth street, Hew York, conveyed the same in fee to the plaintiff in trust; that he has always since been, and is now, the owner of the same in fee and in possession ; that the defendant claims title in fee to a part of the premises ; and the plaintiff prayed that his title might he adjudged to be free from the defendant’s claim, &c.
The answer, besides a general denial, set up three separate defenses, viz : 2. The defendant alleged (as her second defense) that William H. Brown was her husband; that on the 11th day of July, 1849, he owned the premises now claimed by her; that he was then possessed of great wealth, and of property far beyond the amount of his debts and liabilities; that before •and after this time she released her dower in large tracts of real estate mortgaged and conveyed by him; that thereupon “in performance of an agreement with her said husband to that effect, and in consideration of love and affection towards her, and of good and sufficient other meritorious, valuable, and pecuniary considerations, &c., for the purpose of applying the same to her separate use,” on the 11th of July, 1849, (being
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six years before the alleged trust conveyance to the plaintiff,) her husband conveyed the premises in question, with others, to her, in fee, by deed, “ with full covenants of warranty and further assurance; ” that this deed was at once recorded on her behalf, and she “ immediately entered into possession ” of all the property so conveyed, and “ had and enjoyed to her sole separate use all the rents and profits thereof, at all times since, (being- upwards of six years,) until after the death of her husband intestate, October 27, 1855,” (such death being five days after the alleged conveyance to the plaintiff;) that the settlement of this property to her separate use “ was no more than a reasonable provision for her by her husband, in 'view of his pecuniary circumstances, and was so meant and intended in good faith by him ; ” and that by reason of these matters, she was sole owner of the premises in question, claimed by her.
3. The defendant alleged, (as her third defense,) that the plaintiff’s alleged conveyance, was a general assignment of the property of W. H. Brown, made for the benefit of creditors existing at its date, (October 22,1855 ;) that all. of the claims of such creditors arose long after his deed of conveyance to the defendant; that the assignment to the plaintiff does not purport to convey the premises in question ; that it did, however, convey to the plaintiff a large amount of other property, sufficient to pay all the creditors of W. H. Brown, without selling any of the property mentioned in the complaint; that the plaintiff had already sold and converted into money, the greater part of the assigned property; that he now has in his hands, more than sufficient money arising therefrom, to satisfy all the debts of W. H. Brown; that moreover, the greater part of the debts' existing at the time of the assignment, were barred by the statute of limitations ; that W. H. Brown died five days after the assignment; that the defendant was in the following month appointed his administratrix ; that no property of his “estate has yet come to her possession; that the trusts of the plaintiff in the premises described in the com
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plaint, have been executed, and his alleged title to the lands in question has ceased; that said lands, (except as conveyed to the defendant,) have decended to Arthur J. and William H. A. Brown, sons and the heirs at law of the said W. H, Brown ; and that the plaintiff prosecutes this action without their consent, and has no right of action in the premises.
4. The defendant, (as her fourth defense,) by way of counterclaim, reiterates the allegations so set forth in the second and third defenses, and besides alleges that W. H. Brown, having in July, 1849, conveyed to her specifically, by deed, with full covenants, the premises she now claims, (for good and valuable considerations,) with intent to settle the same upon her as her separate estate, and to vest in her an absolute estate therein, in fee simple, as before mentioned; afterwards, in October, 1855, he made a general assignment to „the plaintiff, in trust, of “ all his lands and tenements that lately, the plaintiff had set up a claim under this assignment to the premises so conveyed to her by deed, and claims to • exercise acts of ownership over the premises, and to exclude the defendant therefrom, and to sell, and convey, and transfer, a valid title thereto, and give possession, &c. in derogation of the defendant’s deed and title, and her equitable rights and claims.- And the defendant prayeth, by way of equitable counter-claim, that through the equitable powers of this court it might be deemed that W. H. Brown, by his deed, intended to convey said premises to, and settle the same upon her, and that she is thereby vested with a freehold estate therein, against any claim of the plaintiff, under the assignment aforesaid, &c,
To these three defenses the plaintiff demurred generally, on the ground that they “ do not constitute a defense/’
A. Mathews, for the appellant,
I. The plaintiff having instituted an “ action ” by “ summons and complaint,” to compel the determination of the defendant’s claims to the land in question. She has a right to set up her defenses, whether legal or equitable, either in
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avoidance, or by way of counter-claim, the same as in any other action,
1. The “special proceeding,” authorized by the Revised Statutes on the subject of “ the determination of claims to real property,” (in order to enforce the rights thereby created,) is so far modified by the Code of Procedure, that in every action “ by which a party prosecutes another for the enforcement or protection of a right,” which is given by the provisions of this statute, the pleadings on both sides must be subject to the same rules as govern in all other actions. (2 R. S. 312, § 1. Code, § 2, 449, 468 ; § 69, 140, 149. Hammond v. Tillotson, 18 Barb. 332 . Mann v. Provost, 3 Abb. 446 . The Mayor, &c. v. Stuyvesant, 1 N. Y. Rep. 44 .)
2. Whether, therefore, the plaintiff’s complaint is regarded as a legal action to enforce and protect his alleged right, as created by the Revised Statutes, or an equitable action to remove the defendant’s deed as a cloud upon his title; in either case the “ defendant may set forth by answer as many defenses and counter-claims as she may have, (connected with the subject of the action,) whether they be such as have been heretofore denominated legal or equitable, or both.” (Code, § 150. Crary v. Goodman, 12 N. Y. Rep. 266 . Phillips v. Gorham, 17 id. 270 .)
II. In the construction of the language employed by the defendant in her answer, in the “ statement of new matter, constituting her defense or counter-claim,” the court will (on this demurrer) indulge in no presumption against, her claim ; but, on the contray, will make the most liberal inferences to sustain the defenses and counter-claim intended to be set forth.
The demurrer reaches no defect in the answer (if any there be,) unless it is made to appear that, conceding all the facts therein stated to be true, they do not, “ under any view of them,” “ constitute any defense or counter-claim, whatever,” or .the “elementary constituents” of a defense or counterclaim. (Richards v. Edick, 17 Barb. 260 . Graham v. Cam
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man, 5 Duer, 697 . The People v. The Mayor, &c. 8 Abb. Pr. 10 . Butterworth v. O’Brien, 24 How. Pr. 440 .)
III. The third defense does not, upon its face, constitute a defense to the plaintiff’s action, because it shows the plaintiff is not “ the real party in interest,” in respect to the cause of action alleged in the complaint. (Code, §§ 111, 144. Palmer v. Smedley, 28 Barb. 438 .)
1. Assuming the facts stated in the complaint to be true, yet, as (by reason of the allegations in the third defense) the plaintiff’s trust, in respect to the lands in question, has been fully performed, he is now functus officio, and all his interest in the lands in question has ceased, and the legal title thereto has descended to the heirs at law of W. H. Brown, deceased. (1 R. S. 730, § 67. Parks v. Parks, 9 Paige, 107. Bellinger v. Shafer, 2 Sandf. Ch. 293 .)
2. Upon the same assumption, if by reason of the plaintiff’s having taken the lands upon trust, to sell them for the benefit of the creditors of W. H. Brown, deceased, they are to be treated in equity as converted into personalty, and distributable as such, then they pass to the defendant, as the administratrix of W. H. Brown, deceased, and the plaintiff has no title. (2 Story’s Eq. Juris. § 1212. Bunce v. Vander Grift, 8 Paige, 37. Stagg, Ex’r &c. v. Jackson, 1 N. Y. Rep. 206 .)
3. To enable the plaintiff to maintain this action he must prove the essential allegation in his complaint, that he is “lawfully seised and possessed of the premises in question, as owner in fee.” The third defense distinctly puts this fact at issue, by alleging the plaintiff’s title to have ceased, and the lands to have vested in other persons.
IV. The second defense is a complete answer to the complaint. The facts therein stated, establish an equitable title to the lands in question in the defendant. It is the duty of a court of equity to give it full effect, and recognize its .validity.
1. The facts set forth in the defense, fully entitle the defendant to invoke successfully the equitable powers of this court to establish her claim to the premises in question.
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2. The well settled rules governing courts of equity for upwards of a hundred years, in determining the rights of married women, in their dealings, concerning property, with their husbands, also entitle the defendant to invoke successfully the equitable powers of this court to establish and confirm her title to the premises in question. (Planning v. Stiles, 3 P. Wms. 335. Lucas v. Lucas, 1 Atk. 270. Shepard v. Shepard, 7 John. Ch. 57.)
Courts of equity will surely sustain and give effect to a conveyance of property, or deed of land, from a husband directly to his wife (against his heirs at law or assignee,) as a reasonable settlement for her, where the quantum thereof is suitably proportioned to his estate, and the consideration is meritorious, and no claims of creditors intervene, and the intention of the parties is clearly expressed. (Shepard v. Shepard, 7 John. Ch. 57. Wallingford v. Allen, 10 Peters, 583. Simmons v. McElwain, 26 Barb. 419 . Winans v. Peebles, 31 id. 380.)
The uniform language of courts of equity, for upwards of 100 years, furnishes unmistakable evidence of an unvarying principle of action, under which the defendant has a right to have her title sustained in this court as valid and effectual. (See Lucas v. Lucas, 1 Atk. 271. Arundell v. Phipps, 10 Ves. 148. Walter v. Hodge, 2 Swanst. 112. Shepard v. Shepard, 7 John. Ch. 60. Wallingford v. Allen, 10 Peters, 594. Garlick v. Strong, 3 Paige, 452. Neufville v. Thomson, 3 Edw. 93 . Strong v. Skinner, 4 Barb. 552 . Simmons v. McElwain 26 id. 422. Winans v. Peebles, 31 id. 380.)
Y. .The fourth defense sets forth a good cause of action, by way of counter-claim against the plaintiff, which is a perfect bar to the action.
1. The defendant, wishing to have established her equitable estate in the premises in question, and to have the apparent claim of the plaintiff and his alleged legal estate removed as an existing cloud upon her title, has a right to demand the interposition of a court of equity .to shield her against the plaintiff’s unjust action. (Tisdale v. Jones, 38 Barb. 523 .)
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2. This being her right, it became her duty, when prosecuted by the plaintiff, to set up these matters, by way of counterclaim in this action, (if she desired to invoke the equitable powers of the court,) and not to vex the plaintiff with a separate action. (Hunt v. Farmers’ Loan and Trust Co., 8 How. Pr. 416 . Foot v. Sprague, 12 id. 355. Winfield v. Bacon, 24 Barb. 160 .)
3. If there were any doubt as to the effectiveness of the second defense as a mere negation or avoidance, of the plaintiff’s course of action, the facts there alleged, and the additional matters which constitute together this, fourth defense, being set forth affirmatively by way of counter-claim, fully established the defendant’s right, not only to defend the plaintiff’s action, but also to have an affirmative judgment in her favor. (Code § 274, sub. 2.)
N. Dane Ellingwood, for the respondent
I. The matters secondly set up in the answer of the defendant, do not constitute a sufficient legal claim to the premises in question ; inasmuch as the deed under which she claims (it being a deed from husband to wife,) is void at law ; nor do they constitute a sufficient equitable claim.
1. A married woman may take or hold property, either in her own right, or as a feme sole, or as a henficiary of a trust; but she can neither take nor hold property, nor claim any interest therein, in any other way.
2. In her answer, the defendant does not claim any interest in the land in question, under an express trust; but sets up a claim to such land, under and by virtue of a deed to her from her husband, executed subsequently to the passage of the act of 1849. It cannot be assumed that this court will exercise its equitable power to sustain such a claim, in contravention of an express statute. ¡
II. The matters thirdly alleged in the answer, set up a > claim to lands other than the land described in the complaint, and in which parties other than those who are parties to the present action, have, or pretend to have, some interest. Such
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matters cannot be regarded as responsive to the complaint, or as constituting any claim whatever to the land in question in this cause.,
III. The matters fourthly stated in the answer do not constitute a counter claim, as is therein alleged. Such .a claim can exist only in actions arising upon personal contracts or undertakings. {Code, § 150.) Nor can such matters be regarded as constituting an equitable claim, adverse to the legal claim of the plaintiff.
IY. If, however, an equitable claim could be set up adverse to the express prohibition of the statute of 1849, the defendant, in her answer, has failed to make out, with sufficient particularity, a case for equitable relief. (Field v. Holbrook, 6 Duer, 605 .)
V. Besides, notwithstanding the close blending of legal and equitable actions under the provisions of the Code, a question of great doubt exists, whether in a legal action, brought for the purpose of determining the title to lands under the statute, an equitable adverse claim can be set up by way of answer. It is clear, however, that if the defendant has an equitable claim, it might be set up by way of a cross suit. (Mayor, &c. of New York v. Stuyvesant, 17 N. Y. Rep. 34 , 44.)

By the Court,

This action, even if only the same relief was sought in it as was formerly given under the statute respecting the determination of claims to land, (2 R. S. 313, § 3,) would be subject to the same rules as all other actions. (Code, § 449. Hammond v. Tillotson, 18 Barb. 332 . Mann v. Provost, 3 Abb. 446 .) The same defenses to defeat the right to such relief might be set up by the defendant. Such statutory proceedings evidently included only the determination of legal titles ; as the defendant was to be barred only from claiming an estate of inheritance or freehold in posssssion, reversion or remainder in the premises, It did not include the setting aside of a conveyance upon the ground of the grantor’s incompetency, (Bridges v. Miller,

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2 Duer, 688 ,) or the rights of parties under a contract to convey. Were the action so limited, and the right claimed by the defendant in her second and fourth defenses purely equitable, they might possibly be insufficient as defenses.

But the relief demanded in the complaint, in addition to that given under the statutory proceeding, is that the plaintiff’s title may be quieted and adjudged free and clear from any right claimed by the defendant and “ other relief.” This includes the removal of the defendant’s claim, whatever it may be, from interfering with the title. It is by no means clear that the right set up by the defendant is not practically as much a legal one as the plaintiff’s. The language of the cases where deeds from a husband and to a wife have been sustained in equity, is by no means clear as to the mode in which the wife’s rights are to be protected or enforced, unless by re-. pelling hostile claimants, whenever they commenced an attack in a suit at law, by an injunction in equity ; nor does it seem-to be settled whether a second deed from the husband, through the intervention of a third person, is necessary to complete the wife’s title. At all events, the defendant has the same right to resist the attack of the present plaintiff upon her title, as if it were a legal one. He is neither a bona fide purchaser nor armed with the rights of a creditor ; he is only a voluntary trustee created by the defendant’s husband, and having no more rights than he would have had to interfere with the defendant’s estate or interest. The defenses made, therefore, were proper if they were sufficient in law.

The complaint in this case, however, is defective as one in an action to remove a cloud from the plaintiff’s title, because it does not show the nature of the defendant’s claim. (Hey wood v. City of Buffalo, 14 N. Y. Rep. 534 .) Since the law will not interfere to prevent speculative injuries, (Scott v. Onderdonk, 14 N. Y. Rep. 9 ) if it had simply stated such claim to arise from a deed from the defendant’s husband to her, on the face of which their relation appeared, it would have been demurrable, as the defect, if any appeared on its face. (Cox v. Clift, 2 N. Y. Rep. 118 . Ward v. Dewey, 16 N. Y.

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Rep. 519 . Fleetwood v. City of New York, 2 Sandf. 475 .) If such deed, although prima facie void at law, could be sustained by extrinsic facts, the plaintiff would be bound to deny their existence in order to make the defendant’s claim void. This defect, however, cannot be taken advantage of as regards the counter-claim. (Graham v. Dunnigan, 6 Duer, 629 .)

The first defense demurred to sets out that the defendant’s husband, when entirely free from embarrassment, for the purpose of applying the same to the separate use of the defendant, conveyed to her in fee simple a portion of the property set out in the complaint, which is specifically described by deed duly acknowledged and recorded. It also alleges that he did so in performance of an agreement to that effect with the defendant, and in consideration of his love and affection for her, and for other meritorious, valuable and pecuniary considerations. It further alleges that such settlement was no more than a reasonable provision for the defendant, in view of the pecuniary circumstances of her husband, and was so meant by him. Also, that he was a man of great wealth, and the defendant had released her dower in large tracts of land. There is no allegation that the release of such dower formed any part of the consideration for such settlement, or any part of the agreement on which it was made.

If such second defense is not sufficiently definite or certain in furnishing the details of the agreement for the execution of the settlement, or the pecuniary consideration of it, the remedy of the plaintiff is to move to make it so ; until he does so, it is to be presumed he understands the entire nature of them, particularly on demurrer, where he claims, whatever they were. Such settlement forms no bar to his recovery, which is the matter now to be determined.

The voidness at law of a deed directly from a husband to a wife, which is the highly artificial result of the technical theory of their being but one person, (1 Bl. Com. 442,) does not interfere with equitable rights which may grow out of such an

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instrument, they being capable, in equity, of being considered two persons. (2 Story’s Eq. Jur. §§ 1368 to 1375.) Such result, at common law, could always be obviated by interposing a stranger to accept a deed from the husband and give one to the wife. That ¿there was no policy of the law to be carried out by defeating a deed directly from the husband to the wife, is evident from the harmlessness of a recital in a conveyance to a stranger by the husband, that it was for the purpose of conveying to the wife. (Lynch v. Livingston, 6 N. Y. Rep. 422 .)

It has been indirectly suggested, rather than seriously urged, that the statute of 1849, (Sess. L. 1849, 528, § 1,) which empowers a married woman to take, hold and convey, as a feme sole, property derived from any one but her husband, may, by implication, deprive her of the right of acquiring any property or interest by the gift of her husband, although only to. be enforced in equity. Whether it is intended to carry this doctrine so far as to deprive her of any rights she might acquire as purchaser or creditor, does not appear. It would be sufficiently daring if it took away from all husbands, however wealthy, the right of making provisions for the support of their wives. The title of the statute is, “An act for the more effectual protection of the property of married women," (N. Y. Sess. L. 1848, ch. 200,) not to restrict or limit their rights ; the section in question gives a married woman the power of a feme sole in certain cases, from which gifts by their husbands are simply excluded. The strange inference that such a statute meant to take away the right of a husband to make, or a wife receive from him, a provision for her support, needs no further argumént to refute it than the bare statement of the position. (Power v. Lester, 17 How. Pr. R. 413.) But it is seriously argued that this court should not exert its powers.in equity “to sustain a claim in contravention of an express statute.” How a court can do so, when it is only asked as a court of equity to protect the interest of a wife as a cestui que trust, or perhaps a ward in chancery, and

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not establish any powers in her as a.feme sole over the subject of the trust, I am at á loss to perceive.

Another question, by no means novel, has been raised, in this case, that any equity of the wife growing out of the facts stated in the second defense, must be a trust, and as such prohibited by the Revised Statutes respecting uses and trusts, (1 R. S. 727, § 45,) because not enumerated therein. One of such provisions (§ 50) expressly declares that the preceding sections shall not apply to “ trusts arising by implication of lato,” and the next section prohibits a resulting trust in a particular case. The.54th section of the same statute protects the rights of an innocent purchaser for a valuable consideration against an implied or resulting trust. Thus, in the strongest manner, recognizing and upholding implied trusts. (Johnson v. Fleet, 14 Wend. 179 .)

Nothing, therefore, remains to be considered except what rights a wife derives by a settlement made by a husband upon her in consideration partly of his affection for her, and partly of pecuniary considerations, although _ by an imperfect instrmment, but executed with intent to carry out a previous post nuptial agreement. The intervention of a stranger, as a party to be contracted with, in order to sustain a wife’s rights, as her trustee, is not necessary in equity, which would thereby become as rigid and technical as the common law. (2 Story’s Eq. Jur. § 1380. Wallingford v. Allen, 10 Peters U. S. Rep. 583.) Nor is an antenuptial agreement indispensible as a consideration. (Shepard v. Shepard, 7 John. Ch. 60. Garlick v. Strong, 3 Paige, 452. Neufville v. Thomson, 3 Ewd. V. C. Rep. 93. Strong v. Skinner, 4 Barb. 552 . Simmons v. McElwain, 26 id. 419.) The language of the authorities is that in a proper case, (Shepard v. Shepard, ubi supra,) where the consideration was meritorious or to prevent injustice, or where equity demands it. (Simmons v. McElwain, ubi supra, and Winans v. Peebles, 31 Barb. 380 .) Where the lights of creditors do not intervene, mere affection and a desire to provide for the wife suitably, according to the husband’s means, are sufficient to sustain it. (Shepard v. Shep

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ard; Wallingford v. Allen; Garlick v. Strong; Strong v. Skinner, ubi supra.) Some valuable consideration proceeding from the wife on the faith of such promised settlement, seems to be necessary where creditors intervene. ( Wickes v. Clarke, 3 Edw. V. C. 58.) The same rule prevails in favor of the husband. (Livingston v. Livingston, 2 John. Ch. 537. Jaques v. Method. Epis. Church, 17 John. 548 .)

In this case it is alleged, in the second defense, that the conveyance was made to the defendant in pursuance of a previous agreement for both a good and a valuable consideration, and that it was.a suitable one, having regard to the property of the husband ; this is admitted by the demurrer ; and equity will therefore sustain such a settlement, even if the plaintiff was a creditor or could claim a creditor’s rights. An agreement to release dower may be a sufficient valuable consideration to sustain it, even as against creditors, as I have had occasion to hold recently at special term, (Manhattan Company v. Slate and others, MSS. term, 186 ,) but it is not set forth to to have been one in this case. The allegation of releasing dower is entirely isolated, is not connected with, nor does it refer to any other, and might be stricken out without prejudice. The order appealed from, therefore, in so far as it sustains the demurrer to the second defense, is erroneous.

As the same matters are set up as a basis of equitable relief in the fourth defense, by way of counter-claim, and relate to the land, or the defendant’s claim thereto as the subject of the action, such counter-claim sets forth a good cause of action to prevent the plaintiff from embarrassing the defendant’s equity with his legal conveyance. (Tisdale v. Jones, 38 Barb. 523 .) The fact that the plaintiff’s action is a substitute for a former special proceeding ; if it be so exclusively, and not one to remove a cloud upon the title, does not deprive the defendant of the right granted by the Code, (§ 150,) of setting up equitable defenses in any kind of actions. (Crary v. Goodman, 12 N. Y. Rep. 266 . Phillips v. Gorham, 17 id. 270 .) The demurrer to this defense is also not well taken.

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The third defense presents simply the question whether a trustee, after the purposes of his trust have been accomplished, retains any interest in land conveyed to him to enable him to litigate the claims of others. A great many allegations unnecessary to raise that question are contained in this defense ; such as the priority in time of the conveyance to the defendant to the accruing of any claims of any creditor of her husband represented by the plaintiff, the barring of many debts of his by the statute of limitations, and the like. The important allegation is contained in it that the plaintiff has in his hands more than sufficient money, proceeds of sales by him of part of the assigned property, to satisfy all the legal, subsisting and outstanding debts of the assignor. If it clearly appeared by such defense that such debts did not include those barred by the statute of limitations, it would be insufficient, since the plaintiff's trusts do not cease by the running of the statute against such debts. But it does not; the allegation of the rxinning of such statute is mere surplus-age, and might be stricken out without prejudice. The language of the statute is clear and peremptory, that the estate of trustees of an express trust shall cease when the purposes for which such trust has been created shall cease. (1 R. S. 730, § 67.) A trustee, therefore, only takes so much of the entire legal ownership of the land as is necessary to carry out the trusts. His interest is contingent, and leaves the general ownership to remain with his grantor and his heirs or assigns. A reconveyance, after the trusts are fulfilled, is unnecessary. The property reverts to the owner, or rather becomes divested of the incumbrance of the trusts, as in case of a mortgage paid. This defense, therefore, amounts to a denial of title in the plaintiff, which is sufficient. (Harrison v. McIntosh, I John. 381. Bloom v. Burdick, 1 Hill, 130 .) The order appealed from was, therefore, erroneous in sustaining the demurrer to the third defense.

The order appealed from must, therefore, be so modified as to give judgment for the defendant against the plaintiff as to the property specified in the second and fourth defenses upon

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the issues made by the former and the counter-claim contained in the latter, and as to the plaintiff's whole cause of action upon the third defense, instead of judgment for the plaintiff upon the demurrer; with liberty to the plaintiff to withdraw his demurrer and reply in twenty days to those defenses upon paying the costs' of such demurrer at special term.

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