
    Parmerter v. Baker et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Action—Joinder of Causes.
    Under Code Civil Proc. R. Y. § 484, permitting the union of causes of action on contracts, express or implied, where they affect all the parties to the action, a complaint may unite a cause of action against an insane debtor for money loaned with one against his committee in lunacy who is alleged to be in possession of moneys on which the debt is an equitable lien; there being no equity of redemption to be barred, and the question being simply whether plaintiff is equitably entitled to have the money in the committee’s hands applied to his debt.
    2. Mortgages—Sale of Property—Action to Reach Proceeds.
    Where, in an action against the mortgagor to subject the proceeds of a sale of mortgaged land to the satisfaction of a mortgage, the complaint contains no allegation that the mortgage was recorded, it need not affirmatively show that the lien of the mortgage has been lost.
    8. Insanity—Actions—Judgment.
    Though Code Civil Proc. R. Y. § 2361, requires the avails of a lunatic’s property to be disposed of by the “order” of the court, yet an action to apply the proceeds of a sale of the lunatic’s land to the satisfaction of plaintiff’s mortgage may be maintained, because the judgment of the court will be as authoritative as its order.
    4. Husband and Wife—Loan by Wife to Husband.
    Since, in 1876, the money of the wife constituted her separate property, a loan made in that year by the wife to her husband is not void.
    
    Appeal from special term, Clinton county.
    Action by Jacob Parmerter, administrator, etc., of Jane Baker, deceased, against Theodorus P. Baker, a lunatic, and Michael C. Morehouse, as his committee. From an interlocutory judgment overruling defendants’ demurrer to the complaint, they appeal. Code Civil Proc. IT. Y. § 484, provides: “The plaintiif may unite, in the same complaint, two or more causes of action, * * * where they are brought to recover * =■= * on contracts, express or implied, * * * but it must appear * * * that they affect all the parties to the action.” Section 2361 provides: “The court must, by order, direct the disposition of the proceeds” of a sale of the land of a lunatic. lunatic.
    Argued before Learned, P. J., and Landon and Putnam, JJ.
    
      Winslow C. Watson, (Richard L. Hand, of counsel,) for appellant. Riley & Conway, for respondent.
    
      
       As to the enforceability of contracts between husband and wife, see Harrell v. Harrell, (Ind.) 19 N. E. Rep. 621, and note; Galusha v. Galusha, (N. Y.) 22 N. E. Rep. 1114; Freiler v. Kear, (Pa.) 17 Atl. Rep. 668, and note.
    
   Learned, P. J.

The complaint alleges the death of Jane Baker, wife of Theodorus P., and the appointment of plaintiff as her administrator; the finding of Theodorus P. to be a lunatic in proper proceedings; and the appointment of Morehouse as his committee, and the permission to sue. It alleges that Jane, in her life-time, lent to Theodorus P. $1,800, which has not been paid, and the consequent indebtedness of him to her, and that the committee disputes the claim. This makes the first count. The second, repeating the aforesaid appointments, etc., and the authority to sue, and the loan of the money, alleges the giving of a mortgage on land by Theodoras P. to Jane, (or a deed as a mortgage,) and a bond to secure the said money, with an agreement that it should be a first lien, and all prior liens should be removed. It alleges that after her death said committee, by virtue of statutory proceedings, sold the said land, and received $2,200 therefor; that the committee disputes the existence and validity of plaintiff’s lien, and refuses to pay. The plaintiff asks that her claim may be established and paid out of the avails. The defendants demur on the ground of an improper joinder of causes of action; also on the ground that the complaint does not state a cause of action, and that the second count does not state a cause of action.

Under section 167 of the old Code, as amended 1863, chapter 392, the court of appeals decided in Burroughs v. Tostevan, 75 N. Y. 567, that an action to enforce a lien could not be united with an action to recover a debt, except in the case of mortgage. The language of the present section 484, as enacted in 1876, was different. It omitted the reference to actions for foreclosure of mortgages, and substituted other words, “exceptas otherwise prescribed by law.” It required, also, that the issues should not require different modes of trial. This last provision was stricken out in 1877. So that there is no requirement that causes requiring different modes of trial may not be united. Now, in the present case, we have a cause of action against a debtor for money loaned; and we have also a cause of action against his committee in lunacy, who is alleged to be in possession of moneys on which this debt is an equitable lien. This is not an action to foreclose an equity of redemption. The money is in the hands of the committee, and there is no equity of redemption to be barred. There is simply the question whether the plaintiff is equitably entitled to have this money applied to her debt. The action for the enforcement of a lien, referred to in Burroughs v. Tostevan, is an action by which some specific real or personal property, subject to a lien, is tobe sold to satisfy the same. Nothing of that kind is to be done here, and therefore the remarks in that case do not apply. Although we speak of this claim as an equitable lien on the money, all that is meant is that the court should direct the committee to pay this debt in preference to other claims out of moneys lying in his hands. We think, therefore, that there is no misjoinder of causes of action under section 484, Code Civil Proc.

It is further insisted that the complaint shows no cause of action, because it does not appear that the lien of the mortgage has been lost; that the sale of the land by the committee must have been subject to the mortgage. Section 2358, Id. But the complaint does not show that the mortgage was on record. Therefore the purchaser may have taken free therefrom, while the committee, representing the mortgagor, may be equitably bound to apply so much of the avails as may be needed to pay off the debt.

It is further objected that these avails must be disposed of under the order of the court, (section 2361,) and that, therefore, this action will not lie. But the judgment of the court in this action will be as authoritative as an order. Furthermore, if the plaintiff’s views are correct, the part of the avails needed to pay off this claim are not strictly the property of the lunatic, although it is now in the hands of his committee. If the plaintiff is correct, that part of the avails ought not to be applied, under section 2361, to the benefit of the lunatic.

It is further urged that the second count is not good—First, for the reason above given; second, because the transaction was between husband and wife, and therefore void. The latter ground we think is answered by the fact that the alleged loan was made in 1876. If Jane Baker did loan the money, then it was her separate property, and she had a right to recover it. The judgment interlocutory is affirmed, with costs, with leave to defendants, in 20 days after notice, to withdraw demurrer on payment of costs, and to answer over. All concur.  