
    THATCHER v. CANDEE.
    September, 1866.
    A trustee cannot divest himself of the obligation to perform the duties of his trust, without an order of the court, or the consent of al lthe cestuis que trust.
    
    Trustees must all unite in bringing an action on behalf of the estate.
    Andrew Thatcher and Hanning Marselis (the latter of whom died pending the action) sued William L. Candee in the supreme court. Their complaint alleged the following matters: About June 31, 1838, one John Hagaman, for the purpose of applying his property, real and personal, to pay his debts, conveyed specified real estate to plaintiffs and David W. Candee and Francis Hagaman, and at the same time assigned his personal property to the same persons, both grants being upon trust to pay his ' debts in a certain order. On April 10, 1838, the defendant having purchased the real estate at public sale for three thousand and twenty dollars, and the incumbrances thereon, and being obliged by the terms of sale to advance one-fourth part of the said sum, and to pay the balance in three equal annual payments, to be applied to the discharge of the debts due from the said John Hagaman, according to the terms of the assignment, it was agreed between the assignees and defendant, upon condition that defendant should pay one thousand dollars, that the balance should not be demanded of him until he was able to effect a sale of some part or the whole of t the said property, and that any available means arising out of said property should be applied to the discharge of any judgments'against the said property for which the trustees were personally liable, which judgments amounted to one thous- and three hundred and twenty-one dollars, and that upon defendant’s binding himself to perform the agreement, the assignees would deliver to him a deed of the ¡oroperty. Francis Hagaman, one of the assignees, died in 1843, and in 1846, the surviving assignees executed a conveyance of the land to defendant. David W. Candee, another assignee, assigned all his right, title, and interest in the trust estate to the two remaining assignees, the plaintiffs, and renounced his right to act, by a writing dated in 1848.
    Defendant received large sums of money for portions of the said real estate, of which he sold more than sufficient to pay the purchase money and the judgment's for which the assignees were personally liable, but did not pay the judgments.
    The relief demanded was for the purchase money, (in sums above stated), and the payment of the judgments, for which the trustees were liable, with interest and costs, and that the amount be declared a specific lien on the real estate, or on so much of it as the defendant had not conveyed. Defendant demurred on the grounds: 1. That David W. Candee should have been' made a party plaintiff; 2. Several causes of action were improperly joined; and, 3. The complaint did not state facts sufficient to constitute a cause of action.
    
      
      The súfreme court at special term sustained the demurrer on the ground that David W. Candee should have been made a party plaintiff, holding that David W. Candee had not, by. his renunciation of the trust, and assignment to Thatcher and Marselis, deprived himself of the right to sue on this agreement made by defendant. The court at general term affirmed the decision, assigning the further reason that a trustee, after accepting a trust,, could not, by his own act, divest himself of his trusteeship. Plaintiffs appealed.
    
      D. P. Corey, for plaintiff appellant,
    Cited Wallace v. Eaton, 5 How. Pr. 99; Sheldon v. Wood, 2 Bosw. 267; Story Eq. Pl. §§ 81, 144, 147; 147 Ambler, 11 Ves. 429; Elmendorf v. Taylor, 10 Wheat. 152; Spicer v. Hunter, 14 Abb. Pr. 4.
    
      S. W. Jacleson, for defendant respondent,
    Cited Shepherd v. McEvers, 4 Johns. Ch. 136; Cruger v. Halliday, 11 Paige, 319; Ridgeley v. Johnson, 11 Barb. 527; Hill on Trustees, 180.
   Leonard, J.

The inquiry raised by the last objection, it seems unnecessary to discuss. The counsel for the defendant has made no point in respect to it, and there can be no doubt that the facts stated do constitute a cause of action. »

The defendant insists that there is an improper joinder of actions, because, as he supposes, the demand of one thousand three hundred and twenty-one dollars arises for a sum due to Thatcher and Marselis, for money paid by them to satisfy certain judgments upon the real estate sold, for which they had become personally responsible, while the demand for three thousand and twenty dollars arises from the price of the land sold, which is due to the assignees in their representative capacity.

The complaint states the agreement of the defendant with the four asignees to pay a certain amount of judgments which were liens upon the land sold. It is also stated in the agreement, and in the complaint, that the assignees had become personally responsible for these judgments; and it is also stated that Thatcher and Marselis have paid the amount; but these latter statements are not necessary to the complaint, and may be disregarded. The fact that the defendant agreed with the assignees, to pay these sums and has not done so, is fully stated. This demand arises, not from the payment of these. sums by Tbatclier and Marselis, but upon the contract of the defendant with the assignees. The payment by the assignees creates no liability on the part of the defendant, and is stated, perhaps, for the purpose of raising an additional equity against the defendant, but not for the purpose of creating a cause of action in favor of Thaicher and Marselis personally. The defendant distinctly agreed and bound himself to pay these sums out of the proceeds of sales, and the obligation arose in favor of the assignees as soon as he had received a sufficient sum from the sales for that purpose. The receipt of a sufficient sum is averred, and a cause of action in favor of the assignees, in their representative capacity, appears to be fully stated.

The remaining objection is of a more serious character. Unless one of several co-trustees can, by his own acts, relieve himself from the responsibility of a trust, once accepted and for some time voluntarily acted upon, there is a defect of parties by reason of the non-joinder of David W. Candee. The fact stated in the complaint, which is supposed to excuse the non-joinder, is the assignment by Candee of his interest in the estate to the other assignees, and his renunciation of the right to act. There is no statement of his death, or of any disability, or of an accounting and discharge by the court. We are to assume that no such facts exist. Nor has the plaintiff brought himself within the rule permitting a necessary party to an action to be made a defendant where he has been requested, but has refused, to unite as a plaintiff in its prosecution.

The authorities are clear that a trustee cannot divest himself of the obligation to perform the duties of the trust without an order of the court or the consent of all the cestuis que trust. Shepherd v. McEvers, 4 Johns. Ch. 136; Cruger v. Halliday, 11 Paige, 314, 319; Ridgeley v. Johnson, 11 Barb. 527. These authorities are sufficient to establish that D. W. Candee is a trustee, notwithstanding his assignment and disclaimer.

Trustees cannot act separately all must unite. They constitute in law but one person, and must join. in. bringing an action. Brinckerhoff v. Wemple, 1 Wend., 470. Thatcher and. Marselis have no authority to exclude, their co-trustee, D. W. Can dee, from acting with them, by reason of>anythiug stated in the complaint. The judgment, if recovered in this action, would be no discharge to the defendant as against the creditors of the assignor, John Hagaman.

The judgment should be affirmed with costs, with leave to the plaintiff to amend upon payment to the defendant of the costs of the demurrer awarded at special term, and the costs of the appeal to the general term of the supreme court and of the appeal to this court, in twenty days after adjustment.

The amendment should be allowed in view of the probable running of the statute of limitations, should' the plaintiff be put to another action.

All the judges concurred.

Judgment affirmed, with costs, with leave to plaintiff to amend, upon payment to the defendant of the costs of the demurrer, awarded at special term and the costs, of the appeal to the general term of the supreme court, and of the appeal to this court, in twenty days after their adjustment.  