Birdseye, J. (After briefly stating the parts of the complaint demurred to).
I shall take up the second portion of the demurrer first.
If there were any thing of the kind here alleged in the complaint, if the plaintiff did seek to impeach and set aside the trust-deed, and to establish the deed of release mentioned in the complaint, and to open the decree as to those matters, I think the demurrer would be well taken. But I cannot, on a [236]*236somewhat careful examination of the complaint, find any thing to warrant the objection. On the contrary, the plaintiff claims to have purchased from John K. Fleet the interest he took under the trust-deed, as established by the decree in the chancery suit. As such purchaser, he contests the priority of the mortgage to the loan commissioners, over the estate derived by John K. Fleet, under the trust-deed, and then conveyed to the plaintiff. Instead of seeking to impeach and set aside the trust-deed, he claims under it, he affirms it, alleging it to be valid, and that he has the rights decreed to John Eh Fleet by the decree in the chancery suit, he comes, asking to have those rights declared to be prior to the lien of the loan commissioners’ mortgage, or if not prior, then he asks to redeem from that mortgage, by paying what is due for principal, and interests, and costs, and to be allowed then to hold the premises free from the lien of that mortgage.
This part of the demurrer must therefore be overruled.
As to the other portion of the complaint, demurred to.
It is now abundantly settled, that it is not ground of demurrer to a pleading, that the party claims judgment for a greater sum, or asks for a more extended relief than even by his own showing he is entitled to recover. If the parts of the complaint objected to are material and necessary allegations upon which the plaintiff properly claims some relief, they cannot be stricken out by this demurrer, because the plaintiff has gone too far in his prayer for relief, and has asked what the court cannot grant him. The plaintiff, as the purchaser of John K. Fleet’s interest in these lands, claims to have new trustees appointed to execute the trusts specified in the trustee-deed. To .obtain that relief, he was bound to show the nature and extent of his own interest in the trust property, and also how the trust was created. That is, he was required to state the trust-deed and all the facts relating to it, which go to show why and how the interests conveyed by the trust-deeds have been limited and made less extensive than the terms of the deed would indicate, and also why new trustees should be appointed.
This requires that he should set forth the renunciations of the trustees originally named in the deed, the suit in chancery brought to establish that deed, the result of that suit, and so much of the proceedings therein as may be material to the [237]*237comprehending of the decree and the history of the trust-fund since that time. These portions of the complaint certainly include much the larger part of the allegations objected to by the demurrer, and being conceded by the demurrer, they entitle the plaintiff to have new trustees appointed, and to have a receiver during the pendency of the action. But I think the plaintiff well warranted in setting forth in his complaint the facts relative to the priority of John E¡. Fleet’s interest iinder the trust-deed over the lien of the loan-commissioners’ mortgage. I cannot see from the complaint that the decree in the former suit did dispose absolutely and fully of the question of priority; and the same is true, I think, of the question of priority between the plaintiff’s title under his sheriff’s deed, and the lien of the mortgage to the loan commissioners. ¡Neither the frame of the pleadings in the chancery suit, nor the relief prayed for, nor the terms of the decree as set forth, seem to me to warrant that the loan commissioners by that decree obtained any priority over the cestui que trust, John E¡. Fleet, or over their co-defendant, the present plaintiff.
The facts out of which the suit grew, are briefly these : Abraham Fleet being the owner, in fee, of the lands in question, in March, 1834, conveyed them to trustees for the benefit of his wife Martha, and his son John ¡K¡., and such other children as there might be of his marriage. Soon after, one of the trustees by deed renounced the trust, and refused to accept it. In July, 1835, the other two trustees by deed renounced the trust, gave up the trust estate, cancelled and annulled the trustees’ deed, and reconveyed the lands to A. Fleet. In May, 1837, Pinckney recovered judgment against Abraham Fleet, and in October of the same year, Woodgate, the present plaintiff, also recovered judgment against Fleet. On these two judgments, Fleet’s interests in these lands were sold by the sheriff, were bid off by Woodgate, and not being redeemed, were conveyed to him by the sheriff. Intermediate the two judgments of Pinckney and Woodgate, and on the 14-th of June, 1837, A. Fleet and wife borrowed $4000 of the loan commissioners of Queens county, and gave them a mortgage of the same lands to secure its payment. Under that mortgage the loan commissioners now claim. In April, 1840, after obtaining the sheriff’s deed, Wood-gate brought ejectment for these lands, claiming thereby, as had [238]*238been admitted by the trustees, and by Fleet and his wife, that the trust-deed was wholly void.
At this time the beneficiaries under the trust-deed interposed for their own protection. They were the wife of Abraham Fleet, his son, John K. Fleet, and the three younger children of that marriage. All the four children being infants, they filed their bill, and made the defendants therein, Woodgate, Abraham Fleet, the trustees named in the trust-deed, and the loan commissioners. The object of the hill was to have the trust-deed declared to be in full force and binding, and to have the trusts carried into effect, and new trustees appointed, and to have Woodgate perpetually enjoined from prosecuting his ejectment suit.
That issue was tendered by the bill. It is difficult to see how any other issue could arise on such a bill. The cestuis que trust were claiming under a trust-deed which purported to convey the whole fee of the land. If the deed was held valid, as they insisted it was, it cut off all the subsequent encumbrances, no matter when recovered or what were their respective priorities. If in such a bill, filed by such parties, a married woman and infants, it had been sought to set up and establish some of the encumbrances subsequent to the trust-deed, and to overturn the rest, there would at least be- room for grave suspicion of the good faith of those persons, who, on behalf of parties .thus incapacitated, conducted the suit. But there is no ground for such suspicion, so far as can be gathered from the complaint in this case; the bill in the former suit did nothing but to claim that the trust-deed was in full force and effect, and should be carried into operation, and that new trustees should be appointed to administer the trusts; and as Woodgate’s ejectment would, if it proceeded, take away the entire trust-estate, an injunction was prayed for to restrain him.
The issue thus tendered was accepted. The loan commissioners interposed their answer generally, claiming a lien on the premises under and by virtue of the mortgage by Abraham Fleet to them as loan commissioners.
Woodgate answered, claiming title under the sheriff’s deed to him.
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Birdseye, J. (After briefly stating the parts of the complaint demurred to).
I shall take up the second portion of the demurrer first.
If there were any thing of the kind here alleged in the complaint, if the plaintiff did seek to impeach and set aside the trust-deed, and to establish the deed of release mentioned in the complaint, and to open the decree as to those matters, I think the demurrer would be well taken. But I cannot, on a [236]*236somewhat careful examination of the complaint, find any thing to warrant the objection. On the contrary, the plaintiff claims to have purchased from John K. Fleet the interest he took under the trust-deed, as established by the decree in the chancery suit. As such purchaser, he contests the priority of the mortgage to the loan commissioners, over the estate derived by John K. Fleet, under the trust-deed, and then conveyed to the plaintiff. Instead of seeking to impeach and set aside the trust-deed, he claims under it, he affirms it, alleging it to be valid, and that he has the rights decreed to John Eh Fleet by the decree in the chancery suit, he comes, asking to have those rights declared to be prior to the lien of the loan commissioners’ mortgage, or if not prior, then he asks to redeem from that mortgage, by paying what is due for principal, and interests, and costs, and to be allowed then to hold the premises free from the lien of that mortgage.
This part of the demurrer must therefore be overruled.
As to the other portion of the complaint, demurred to.
It is now abundantly settled, that it is not ground of demurrer to a pleading, that the party claims judgment for a greater sum, or asks for a more extended relief than even by his own showing he is entitled to recover. If the parts of the complaint objected to are material and necessary allegations upon which the plaintiff properly claims some relief, they cannot be stricken out by this demurrer, because the plaintiff has gone too far in his prayer for relief, and has asked what the court cannot grant him. The plaintiff, as the purchaser of John K. Fleet’s interest in these lands, claims to have new trustees appointed to execute the trusts specified in the trustee-deed. To .obtain that relief, he was bound to show the nature and extent of his own interest in the trust property, and also how the trust was created. That is, he was required to state the trust-deed and all the facts relating to it, which go to show why and how the interests conveyed by the trust-deeds have been limited and made less extensive than the terms of the deed would indicate, and also why new trustees should be appointed.
This requires that he should set forth the renunciations of the trustees originally named in the deed, the suit in chancery brought to establish that deed, the result of that suit, and so much of the proceedings therein as may be material to the [237]*237comprehending of the decree and the history of the trust-fund since that time. These portions of the complaint certainly include much the larger part of the allegations objected to by the demurrer, and being conceded by the demurrer, they entitle the plaintiff to have new trustees appointed, and to have a receiver during the pendency of the action. But I think the plaintiff well warranted in setting forth in his complaint the facts relative to the priority of John E¡. Fleet’s interest iinder the trust-deed over the lien of the loan-commissioners’ mortgage. I cannot see from the complaint that the decree in the former suit did dispose absolutely and fully of the question of priority; and the same is true, I think, of the question of priority between the plaintiff’s title under his sheriff’s deed, and the lien of the mortgage to the loan commissioners. ¡Neither the frame of the pleadings in the chancery suit, nor the relief prayed for, nor the terms of the decree as set forth, seem to me to warrant that the loan commissioners by that decree obtained any priority over the cestui que trust, John E¡. Fleet, or over their co-defendant, the present plaintiff.
The facts out of which the suit grew, are briefly these : Abraham Fleet being the owner, in fee, of the lands in question, in March, 1834, conveyed them to trustees for the benefit of his wife Martha, and his son John ¡K¡., and such other children as there might be of his marriage. Soon after, one of the trustees by deed renounced the trust, and refused to accept it. In July, 1835, the other two trustees by deed renounced the trust, gave up the trust estate, cancelled and annulled the trustees’ deed, and reconveyed the lands to A. Fleet. In May, 1837, Pinckney recovered judgment against Abraham Fleet, and in October of the same year, Woodgate, the present plaintiff, also recovered judgment against Fleet. On these two judgments, Fleet’s interests in these lands were sold by the sheriff, were bid off by Woodgate, and not being redeemed, were conveyed to him by the sheriff. Intermediate the two judgments of Pinckney and Woodgate, and on the 14-th of June, 1837, A. Fleet and wife borrowed $4000 of the loan commissioners of Queens county, and gave them a mortgage of the same lands to secure its payment. Under that mortgage the loan commissioners now claim. In April, 1840, after obtaining the sheriff’s deed, Wood-gate brought ejectment for these lands, claiming thereby, as had [238]*238been admitted by the trustees, and by Fleet and his wife, that the trust-deed was wholly void.
At this time the beneficiaries under the trust-deed interposed for their own protection. They were the wife of Abraham Fleet, his son, John K. Fleet, and the three younger children of that marriage. All the four children being infants, they filed their bill, and made the defendants therein, Woodgate, Abraham Fleet, the trustees named in the trust-deed, and the loan commissioners. The object of the hill was to have the trust-deed declared to be in full force and binding, and to have the trusts carried into effect, and new trustees appointed, and to have Woodgate perpetually enjoined from prosecuting his ejectment suit.
That issue was tendered by the bill. It is difficult to see how any other issue could arise on such a bill. The cestuis que trust were claiming under a trust-deed which purported to convey the whole fee of the land. If the deed was held valid, as they insisted it was, it cut off all the subsequent encumbrances, no matter when recovered or what were their respective priorities. If in such a bill, filed by such parties, a married woman and infants, it had been sought to set up and establish some of the encumbrances subsequent to the trust-deed, and to overturn the rest, there would at least be- room for grave suspicion of the good faith of those persons, who, on behalf of parties .thus incapacitated, conducted the suit. But there is no ground for such suspicion, so far as can be gathered from the complaint in this case; the bill in the former suit did nothing but to claim that the trust-deed was in full force and effect, and should be carried into operation, and that new trustees should be appointed to administer the trusts; and as Woodgate’s ejectment would, if it proceeded, take away the entire trust-estate, an injunction was prayed for to restrain him.
The issue thus tendered was accepted. The loan commissioners interposed their answer generally, claiming a lien on the premises under and by virtue of the mortgage by Abraham Fleet to them as loan commissioners.
Woodgate answered, claiming title under the sheriff’s deed to him. Heither of them claimed any priority over the other, or set out any facts on which to base any such claim. Had they spread facts on the record, and sought to litigate in that suit [239]*239their claims between themselves, it is at least doubtful if they would have been permitted to do so. The proper method to settle that controversy, was by suit between them ; but when the record contains no allegations whatever by these defendants on the subject of their respective claims to priority, I entertain no doubt that the decree should not be held conclusive as to these priorities. Certainly it should not be made so by any implication or construction ; nothing but the most express and positive provisions should have such an effect, and I can find in the decree nothing to warrant the conclusion that the court did pass, or intended to pass upon any thing but the rights of the complainants. The trust-deed was to a certain and limited extent declared valid, and ordered to be carried into effect. During the continuance of the trust-estate thus declared to exist, Woodgate. was restrained from prosecuting his ejectments for the lands thus subjected to the trusts.
But the very terms of the decree awarding the injunction, which limited it to the joint lives of the cestuis que trust and the life of the survivor, imply that when that limitation had expired, he was to be at liberty to proceed, and substantiate by his suit whatever rights to the lands he might have acquired by his sheriff’s deed. The provision that the mortgage to the loan commissioners was established as a good valid lien until paid off and discharged, is at least singular. If it was intended to give that mortgage priority over the interests conferred on the cestuis que trust by the trust-deed, it is liable to grave suspicion.
I see no grounds for reaching that result. How could it have been done but by some negligence or collusion on the part of those who represented the infant plaintiffs. But the language of the decree does not compel me to resort to that explanation. It can be construed to mean, that the mortgage was a good and valid lien on such rights as the mortgagor possessed in the lands at the date of the mortgage.
Those rights, it appears from other parts of the decree, were the reversion after the two life-estates of the mortgagor’s wife and son. The rule of a benignant construction “ at res magis valeat quam percat,” should apply as well to a judgment or decree of the court, as to the deed, or agreement, or statute which may be construed by that decree.
I must therefore hold, that upon the statements of it in the [240]*240complaint, the decree in the former suit did not determine the rights and equities as between themselves, of Woodgate, and the loan commissioners, and did not declare that mortgage entitled to priority over Woodgate’s title. This suit does not call on the commissioners to answer again as to matters comprehended and determined in the former suit, nor does it seek to try again the matters tried in that suit.
The fourth ground of the demurrer, the non-joinder of the three other children of Abraham and Martha Fleet, cannot be sustained. It appears that those children had no claims or interests whatever under the trust-deed, and the decree in chancery so declared.
The demurrer to that portion of the complaint is therefore overruled, with coste.*