Reed v. Stryker

6 Abb. Pr. 109

Opinion

By the Court.

*

Mason, J. The rule was well settled in equity, prior to our new Code of Procedure, that where a bill was filed concerning things of a distinct nature, against several persons, it was demurrable. The uniting in one bill of several matters, perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill, was not admissible, and furnished good cause of demurrer. (Story's Eq Pl., %% 271, 530, 540, 541, 545, 610 ; Cooper’s Eq Pl., 182; Mitfords Eq Pl., 181, by Jeremy, and, n.; Hester v. Weston, 1 Vern., 463 ; Dillery v. Doig, 2 Ves. Jr., 486; Whaling v. Dawson, 2 Schoales & L., 367 ; Saxton v. Davis, 18 Ves. 72.)

The plaintiffs’ counsel relies upon Brinkerhoof v. Brown (6 John. Ch. R., 139), and Fellows v. Fellows (4 Cow., 682), and Hammond v. Hudson River Iron & Machine Company (20 Barb., 378). The case at bar seems to me to be distinguishable from those cases. In the case of Brinkerhoof v. Brown there was a continued act of fraud affecting seven of the defendants ; there was a series of acts on the part of the persons concerned in that Genesee Company, all produced by the fraudulent intent, and terminating in the deception and injury of the plaintiffs. There was a connected series of acts, all intended to defraud and injure the plaintiffs, and in which all of the defendants were more or less concerned, although not jointly in each act, and the chancellor held the bill properly filed against them all jointly, for the reason that they performed different parts in but one and. the same drama. He held it to be one entire performance, in which they all helped to carry out a part only marked by different scenes in which they appeared in the drama. He held it to be one entire thing; and this was so, for the only object of the bill was the due application of the capital of the Genesee Company to the payment of the plaintiffs’ judgments. The subject of the bill, and the only matter in litigation, was the fraud charged in the creation, management, and disposition of that capital, and in which charge all the defendants were implicated in a greater or less degree.

In the case of Fellows v. Fellows (4 Cow., 682), the facts stated in the bill warranted the court in holding that the defendants were all jointly liable—that they were all parties and confederates in the frauds (see p. 707); and Senator Golden places his opinion upon the ground that the answer did not deny that they were confederates and acted in concert (see p. 709); and he holds, if this had been denied, he would have no hesitation in deciding that the suit against the defendants jointly could not be maintained (see p. 709). And, besides, there was another ground on which the case was placed. It is alleged in the bill that the notes were transferred, and the conveyances made, (o secure them as the effects of John Fellows, and it is averred that they held the lands for his use and benefit: and these charges were not denied, and therefore, stood admitted by the demurrer; and the court held that the defendants, therefore, held the property-as trustees for him (pp. 709, 710). It was also averred in the bill that the defendants all aided and advised the father, and took from him voluntary conveyances of different portions of all his property without paying any consideration, and each of them knowing that such transfers were made with a view to' defraud; and the court were right, therefore, in holding that the defendants were jointly concerned in practising the fraud. The case of Hammond v. The Hudson River Iron & Machine Company, and Mears v. Beach (20 Barb., 378), is nowise analogous, and the case decides nothing which can control the present case. In the case at bar there is no combination or confederacy, between the defendants, alleged. There is no allegation in the complaint that any one of the three defendants, to whom conveyances and transfers of property were made, was, in the least, cognizant of the transfers to the others, or that the defendants acted at all in concert. On the contrary, one of the fraudulent conveyances to Sabina Stryker is alleged to have been made in 1843, while the assignment to Manning is alleged to have been made in 1854; and the fraudulent transfers and conveyances to his wife, Catherine Stryker, is alleged to have been made in 1853, and the complaint leaves each of the parties in ignorance of the doings of the others, and no connection or confederacy is pretended between them. There is no joint liability of the defendants, and the'demurrer is well taken, on the ground that several causes of action have been improperly united (Code, § 144). But the 167th section of the Code is decisive upon this subject; there is a limit placed upon the plaintiff’s right to unite different causes of action. That section declares that the causes of action, so-united, must all belong to one of the classes specified in the section, and must affect all the parties to the action, &o. How, I would ask how the cause of action against Sabina Stryker for receiving a fraudulent conveyance of real estate in 1843, and the subsequent fraudulent conveyances in 1853, can, in the-least, affect the assignment which was made to Manning in 1854, or how it can affect the cause of action founded upon Hanning’s breach of his trust duties as assignee; or how can the fraudulent conveyances and tranfers of property, made by Stryker to his wife in 1853, affect Manning, as trustee under the assignment, or the assignment itself ? Manning, upon the complaint as framed, cannot be affected by the transfers of property to Sabina or Catherine Stryker. The order appealed from should be reversed.

Present, Gray, Mason, and Balcom, JJ.