
    Margaret E. Littlejohn, Respondent, v. Lucy A. Littlejohn Leffingwell, Individually and as Sole Executrix, etc., of DeWitt C. Littlejohn, Deceased, who was the Sole Executor and Trustee under the Last Will and Testament of Alida M. Littlejohn, Deceased, Elisha Dyer Leffingwell, Husband of Lucy A. Littlejohn Leffingwell, and George H. Ackerman, Appellants, Impleaded with Another.
    
      Action to set aside conveyances obtained by fraud —■ the sum paid therefor need not be actually tendered—injunction to restrain the cutting of timber obtained without notice or security—effect thereon of a plea of the Statute of Limitations.
    
    In an action by a widow to set aside, upon the ground of duress, misrepresentation and fraud, conveyances of certain timber lands, executed by her husband, and a quitclaim deed and release executed by the widow of her interest in the timber lands and in her husband’s estaté, it is not necessary for the plaintiff to tender the amount received by her as the consideration for the release; it is sufficient that she allege in the complaint her willingness to do so.
    "Where the complaint in such an action alleges facts showing the plaintiff to be a tenant in common of the property, an order restraining the defendants from cutting timber upon the lands, obtained ex parte, and without security, upon affidavits showing that one of the defendants who, after the filing of the Us pendens, purchased a portion of the lands — the value of which consisted, chiefly in their timber — was cutting timber therefrom, is sustainable under section 1681 of the Code of Civil Procedure.
    In view of the difficulty in obtaining purchasers of timber lands, and of the further fact that if the purchaser were permitted to continue to cut timber, the plaintiff would have ample security for the protection of her rights in the property remaining unsold, the court considered that the injunction should be vacated as to the purchaser.
    A plea of the Statute of Limitations is an affirmative defense and is not a ground for setting aside an injunction otherwise properly issued.
    Appeal by the defendants, Lucy A. Littlejohn Leffingwell, individually and as sole executrix of DeWitt 0. Littlejohn, deceased, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of March, 1899, denying their motion to vacate an injunction order restraining the defendants during the pendency of the action from cutting timber upon lands which are the subject of the action.
    
      
      Henry B. Hathaway, for the appellants Leffingwell.
    
      William E. Warland, for the respondent
   Goodrich, P. J.:

- The action is brought to set aside conveyances made in 1888 by Hugh Littlejohn, the husband of the plaintiff, since deceased, to his. sister, the defendant Mrs. Leffingwell, and a quitclaim deed and release made by the plaintiff to the same party, in 1891, on the’ ground of duress, misrepresentation and fraud. 'The complaint-alleged the following facts: Hugh died in 1890, leaving a will devising and bequeathing to the plaintiff all his real and personal estate., Of this will the defendant Panics is sole surviving executor. Alida,. the mother of Hugh, died in 1872, leaving a will devising and bequeathing all her real arid personal estate to her executors, in trust, for her children, Hugh and Lucy, during their minority, and. providing that at their majority the property should be equally divided between them. She gave her-husband, De Witt 0. Little-j'ohn, by a codicil a life interest in her estate. Of the executors-only De Witt qualified. • He died in 1892, leaving a will devising- and bequeathing all his real and personal property to his daughter Lucy and appointing her executrix. De Witt invested the ¡assets of his wife’s estate and among other things purchased therewith large-tracts of timber lands in Oswego and Jefferson counties, the title to which was taken in the names of Hugh and Lucy. In 1888, Hugh,, being in financial straits, ■ conveyed the timber lands to Lucy by several deeds, the expressed consideration being in the aggregate-$7;000, but no part of such consideration was actually paid, the intention being that the lands should be held in trust for Hugh, Such deeds were obtained by duress and threats while Hugh was under the influence of liquor. In 1891, by false representations, De Witt- and Lucy induced the plaintiff to execute a quitclaim deed and release to Lucy of all her interest in the timber lands and in the-estate of her husband Hugh, for the sum of $10,000, which was-paid to her. This price was wholly inadequate. In 1898, Lucy married Mr.. Leffingwell and conveyed to him a part of the timber-lands, but the deed was not recorded till 1895, Mr. Leffingwell having, in 1894, executed to his wife a mortgage of $27,500' on the-premises conveyed. Both instruments are alleged to be in'fraud of the plaintiff’s rights. Mr. and Mrs. Leffingwell have sold most of the other lands of the estates of De Witt and Alida and have never accounted, and they have threatened to sell the timber lands. The plaintiff demanded judgment setting aside the conveyance and release and directing an accounting of the estates of Alida and Hugh.

This action was commenced in December, 3897, against Mr. and Mrs. Leffingwell individually and as executors, and against Banks « as executor, and a notice of Vis pendens was filed in the counties of Oswego and Jefferson. Subsequently, and in November, 1898, Mr.' Leffingwell and wife conveyed some 800 acres of the timber lands to George H. Ackerman. On December 7, 1898, the plaintiff obtained an order making Ackerman a party defendant and granting leave to serve a supplemental complaint, the defendants Leffingwell having appeared in the action but not answering till December fifteenth and nineteenth when, among other things, they denied most of the-equities alleged in the complaint, set up the Statute of Limitations, and alleged that no offer had been made to return the $10,000 consideration of the lease. It is stated that the defendants Leffingwell appeared on December third and served their answers on December twenty-third. On that day the plaintiff, on affidavits showing that Ackerman was cutting off the timber, the effect of which would be practically a destruction of the value of the lands, obtained ex parte an injunction restraining the defendants from felling trees .and sawing same- into lumber for sale. The defendants moved to vacate the injunction and the motion was- denied. From this order the defendants appeal.

The defendants’ contention is that the plaintiff is not entitled to the injunction, for four reasons: First, no merits. Second, the same was granted without notice to the defendants Leffingwell, they having appeared in the action. 'Thvrd, no security was given. Fourth, the injunction should not have been made permanent ex parte.

First, as to the merits; we have stated the allegations of the complaint quite fully, in order to show that an apparently meritorious cause of action is made out entitling the plaintiff to relief. While it is true that many of its allegations are denied in the answers, it appears by. the affidavits that Ackerman entered into a contract for the purchase of the lands after the filing of the notice of Us pendens ■and consequent notice of the plaintiff’s claims. The affidavits show that the value of the lands consist chiefly in their timber, and to permit its removal might seriously impair, the plaintiff's rights. While the. injunction restrains all of the defendants from felling and sawing timber, it is evident that, on the conditions disclosed, it was intended practically to enjoin Ackerman from continuing the felling of timber on'the lands which he had already commenced to do.' He had not appeared in the action when the order was obtained, and no notice to him was required. Neither notice of application for the injunction nor security was necessary..: Section 1681 of the Code of Civil. Procedure permits such a course, if, during the pendency of any action specified in title 1 of chapter 14 of the Code, the defendant commits waste, or does any other damage to the property in controversy. And title 1 (Art. 8, ;chap„ 14) includes, the present action. The plaintiff alleges facts which entitle her to be declared a tenant in common in the property^ and the defendants are threatening to cut timber thereform. (See Code Civ. Proc. §§ 1666, 1667.)

It was not necessary, as the defendants contend, that the plaintiff in an action of this character should tender to the defendants Leffingwell the $10,000 received by her ás the. consideration for the release. It is sufficient, under the allegations of the complaint, that she should allege her willingness to do so, and this, appears in the complaint. If her allegations are true she has not received the share in the estates of her husband and his mother to which she is entitled, and equity would apply the payment on account of such sliare^ and, even if her allegations are not true:, she is entitled to ¡retain the $10,000. Under such conditions a tender is not necessary. (Kley v. Healy, 127 N. Y. 555.)

The pléa of the Statute of Limitations is an affirmative defense, and I know of no authority which makes that a ground ijor setting aside an injunction which otherwise was properly issued; j It is true that leave to serve an amended or supplemental complaint, or to add new causes of action, has been denie'd where the Statute of Limitations-has closed the right of action, but these ca^es ¡have been applications to favor in actions at law. This was the case in Quimby v. Claflin (27 Hun, 611) where-the, court refused to..permit the amendment of a complaint by setting up a new and additional causé •of action on a contract which had outlawed. So in Miller v. Johnson (10 Civ. Proc. Rep. 205) the court refused to permit a supplemental complaint in an action for slander, in order to set up an additional slander which was admitted to have been uttered more than two years before the application. But in the present action it is not at all clear that the statute has run against the equitable claim ■of the plaintiff.

In respect to the granting of the injunction without notice to the ■•defendants Leifingwell, it may be added that practically the present ■condition of affairs has afforded a fair opportunity for argument in ■favor of their contentions, and, while this may not be held to be equivalent to original notice of such application to a party who has ¡appeared in the action, yet we are unable to discover any resultant injury to any of the defendants.

Under ordinary circumstances we should find enough in this case "to uphold the injunction and support the discretion as exercised below; but, in exercising the discretion of the court to grant or continue an injunction, the effects of the injunction on the interests •of the parties should always be considered. Here the legal title is in .the defendants, and the burden of proof rests upon the plaintiff to establish affirmatively that the deeds from her testator were •obtained by fraud. The property consisted of a tract of about 9,000 Acres. The claim of the plaintiff is that she is entitled to an undivided half of the property. The defendants Leifingwell have conveyed to the defendant Ackerman a tract of 800 acres, or less than one-tenth of the property, for the sum of $3,400. It appears that sales of land of the character of that in dispute are made with difficulty and only at intervals, purchasers being few. If the cutting of timber is enjoined and the plaintiff fails to succeed in the action, a serious injury will have been done the defendants for which they have no substantial indemnity; while, on the •other hand, if the defendant Ackerman is permitted to cut the timber on the land which he purchased and the plaintiff should succeed in her suit, she will have ample security for the protection of her rights in the property remaining unsold. In fact, in all probability the sale is advantageous to both parties, no matter what may be the fate of this action.

The order appealed from should be modified so as to vacate so-much of the injunction as restrains the defendant Ackerman from, cutting timber, without costs of this appeal to either party

All concurred.

Order modified so as to vacate so much of the injunction as-restrains the defendant Ackerman from cutting timber, and as modified affirmed-, without costs-of this appeal to either party j  