
    Mary E. Mullin, Individually and as Administratrix, etc., of John P. Mullin, Deceased, and Mollie Oldner, Respondents, v. Bridget Mullin and Mary Nolan, Appellants.
    Second Department,
    May 10, 1907.
    Fraud — transfer of moneys and lands procured by undue influence — pleading — transaction not set aside at suit of heirs of grantor—complaint states, cause of action if fraud shown to be that of grantees — parties — when widow, representative and next of kin may unite in action.
    One who transfers property to defraud creditors will not be aided'by equity to ■ recover. it, and a complaint by his heir's and -next of kin seeking to set aside the transfer which alleges that it was made to avoid payment of liabilities States no cause of action.
    
      But when such complaint in addition to alleging the unlawful purpose shows • that the grantor was of, feeble mind and under iinduQ influence, exercised by the grantees, the transfer, will be construed to be their act and a cause of action is stated. ..
    Persons who procure a transfer of property by undue influence are in equity trustees ex maleficio and will be compélled to account.
    When by undue influence the defendants induced the decedent to transfer moneys and also to have the lands purchased with other moneys conveyed to them under an agreement to hold it in trust, the. widow of the decedent, his representative, heirs and next of kin may unite in one action attacking the entire transaction, although their pecuniary interest may not be the same and although .some, of them may not be entitled to the relief obtained by others.
    ' When one pays the purchase price.of lands the title to which is taken by -others under an agreement to hold them in trust for the purchaser, he being entitled to possession and rents and profits, is vested with the legal title by virtue of sections 72 and 73 of the Real Property Law; moreover, the trust being passive, no title vests in the grantees, but the one paying .the consideration becomes seized.
    Appeal by the defendants, Bridget Mullin .and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens.on the 16th day of August, 1906, upon the decision of the court, rendered after a trial at the Queens County Special Term, overruling the defendants’ demurrers to the amended complaint. ■
    
      Leander B. Faber and G liarles H. Street, for the appellants.
    
      Rudolph Marrks, for the respondents.
   Miller, J.:

The defendants appeal from an interlocutory judgment overruling their demurrers'to the complaint. The complaint attempts to plead two causes óf action, and the defendants demur to the entire complaint, on the ground that causes of action are improperly united, .and to each separate cause of action attempted to be stated on the ground of misjoinder of parties plaintiff and of failure to state facts sufficient to constitute a cause of' action. The plaintiff Mary E. Mullin, who sues individually and as administratrix, is the widow of John P. Mullin, deceased, and the plaintiff Mollie Oldner is the only heir at law and next of kin of said deceased. While the complaint lacks clearness and precision, I think that, indulging in the inferences warranted in testing its sufficiency on a demurrer, it alleges in effect, for the first cause of action, that the defendants by the exercise of undue influence over said John P.'Mullin from time to time, induced him to. deliver to them large sums of money to be. held by them in trust and that they also by like means from time to time induced him to invest portions of said moneys in real estate taking the title in the name of the defendant Bridget Mullin, under an agreement that she would hold it in trust for him, and that during his lifetime he was in absolute possession and control of said real property; that the plaintiffs are in ignorance of the exact sums of money so delivered and of the particular parcels of real property so purchased; that after the death of the said John P. Mullin, the said defendant Bridget Mullin conveyed said real property to the defendant Mary Holán, and that the said defendants refuse to account in any way or recognize the rights of the plaintiffs in said property. It. is also'alleged that one of the purposes of the said Mullin was to avoid the payment of liabilities which might accrue against him.

Of course it is unnecessary to discues the proposition that a person who transfers his property to defraud his creditors cannot have the aid of equity to get it back, and that allegation would be fatal to the complaint were it not for the allegation that said Mullin was of feeble mind and under the influence and control of the defendants, and that'the transactions alleged were the result of such undue influence and control. • The unlawful purpose was, therefore, that of the defendants and not of said Mullin. By the transaction alleged in the complaint the defendants became, at least trustees ex maleficio of the moneys intrusted tó their- keeping. Equity will, therefore, compel them to account, but it is clear that, as to the money obtained by the defendants, no one but the personal representative of the deceased has any such legal or equitable interest in the subject of the action as entitles him to be joined as a party plaintiff witliin section 446 of the Code of Civil Procedure (Havana City Railway Co. v. Ceballos, 49 App. Div. 263), and as -to the • real property, equity, treating the entire transaction as void by reason of the undue influence practiced, might construct a trust and compel the defendants to account to the personal representatives of the deceased as trustees ex maleficio of the money used in its purchase. It is claimed by the respondents that the' deceased was seized of an estate of inheritance in said real property, and that, therefore, the widow is entitled to dower by virtue of section 170 of the Real Property ■ Law (Laws of 1896, chap. 547), and while 'the appellants contend that the widow was not entitled to dower, they seem to- assume that the heir is a proper person to maintain the- action so far as it concerns the real. property. If that assumption is correct, it must follow that the deceased ■was seized óf an estate of inheritance and that,the widow is entidied to dower;,and .a possible theory can' be suggested for claiming that the absolute title vested in the deceased upon the' conveyance to the defendant Bridget: Mullin,, pursuant to an agreement to hold the title .in trust, which we áre .not-to assume was, void ' . for not being in writing. While no trust could result from the ‘ payment of the purchase money, the conveyance pursuant to said agreement would operate to vest' .the legal title in the.person entitled to the possession and the rents and profits, pursuant to sections '72 and 73 of the Real Property Law. The trust, agreed upon being passive, no title ".vested in said defendant, but the said John P. Mullin became seized of the legal title. (Wendt v. Walsh, 164 N. Y. 154.) I suppose the party defrauded, i.- e., the one' upon whom the undue influence was practiced, could elect ' whether lie ■would avoid the entire transaction and hold the defendants as . trustees ex maleficio, or whether • lie would .affirm it and insist that the legal title to the real property purchased had vested in him. If this be so, the commencement of an action by his. personal representative, next of kin and heir at law,, in which the claim -.of title is asserted; must be treated as an election on their part so to claim; and it is unnecessary now .' to determine who would have the right of election, as all' of the parties who could possibly exercise it are plaintiffs. It will , thus be seen that upon the theory of the complaint the widow and the heir are concerned in the real property, and. the personal representative in the' personal property,., and it remains, to be considered whether more than one cause of action is alleged, and if so, whether all of the parties are affected.' While different. . transactions, are alleged, they appear at .least inferentially to' ber parts of the same general’ scheme. It is claimed that pursuant to agreement and as the result -of the exercise of undue influence the defendants hold certain moneys as trustees, for which they must account to the personal- representatives; ■ that they also have the record title to certain real estate purchased with a portion of said trust moneys, the fee of which pursuant to statute is vested in the heir of the cestui que trust subject to the widow’s dower, and that the plaintiffs need a discovery and an accounting to ascertain the precise sums of money so obtained by the defendants and the precise portions thereof invested in real estate. While it is true that different persons are interested in each species of property, it does not necessarily follow that, they are not interested in' the subject of the action and in obtaining the judgment demanded. (See Code ■Civ. Proc. § 446.) It is evident that the question to be litigated is whether said money and real property were obtained by the defendants by means of undue influence exerted over said John P. Mullin and pursuant to an agreement to hold it in trust. In this question the parties are all equally interested. The main object of the action is.for a discovery and accounting. In this the plaintiffs are equally interested! The fact that their pecuniary interest may not be the same or' that some may not be interested in the incidental relief obtained by others, does not prevent all being interested in the subject of the action and in obtaining the judgment demanded. (Simar v. Canaday, 53 N. Y. 298.). As incidental to the general purpose of the suit, if the plaintiffs are successful, the court may order the defendants to pay over to the personal representatives of the deceased whatever sums of money are found upon the accounting to be in their hands, and it may likewise clear up the record title to the real property which it is claimed is vested in the heir subject to the widow’s dower, but this relief, is only incidental to the main purpose of the suit and will be granted because equity will see to -it that-there is a complete determination in this suit of all of the matters of difference between the parties in any way involved in the controversy. If said Mullin were alive lie could certainly obtain a complete determination in one suit of all the matters alleged, and the language' of Judge Gray, speaking for the court in Shepard v. Manhattan R. Co. (117 N. Y. 442,450), is quite applicable to this case: “ If this intestate had been living he could only have maintained one action, and neither’ the authorities nor .principle suggest a reason why, upon his death, those upon whom his' property interests' have thereby devolved, and who, in their combined personalities, represent him, and who have a com-. mon interest in holding the defendants liable for their acts, should be obliged to bring separate suits.” I think the case of Bradley v. Bradley (165 N. Y. 183) furnishes ample authority for joining the plaintiffs in this case. In addition to the authorities cited by Judge Landón .in that case, I also cite Mahler v. Schmidt (43 Hun, 512) as particularly applicable to this case.

If I am right in asserting that upon the facts alleged in the complaint the said Mullin could have élected to hold the defendants as trustees ex maleficio of the moneys used in the purchase of the real property or to claim the absolute title to- said real property, there is good reason why the personal representative, the widow and the heir, should all be parties to the action, and' I think that, treating the complaint with liberality as I have, it is found to allege a state of facts showing that the plaintiffs are all interested in the central point likely to be in controversy and in the judgment asked for, and it follows, therefore, that the demurrer to the first cause of action was properly overruled. ■

By the second cause of action the pleader undoubtedly undertook to state a cause of action relating to the same real property referred to in the first cause of action. I quote the material alle^ gation of this cause of action: That the said John P. ■ Mullin, deceased,, was on and before the 17th day of October, 1904, seized in fee simple and in lawful possession of certain real property hereinafter more particularly and specifically described, which the Said deceased purchased and paid for from time to time during his lifetime^ but for the purpose of avoiding the payment of liabilities which might accrue against him in business or otherwise, and being of feeble mind and under the influence of the. defendants above named, was induced by said defendants to take the deeds for such real property in the name of the defendant, Bridget Mullin.” The part quote'd falls short of alleging undue influence, and the ■ allegation that the transaction was for the purpose of avoiding the payment of liabilities presents an insuperable objection to the sufficiency of this part óf' the complaint as stating facts sufficient to ' constitute a cause of action in favor of any one.

The interlocutory judgment should lie modified to the extent of sustaining the demurrer to the second cause of action, and as modified affirmed, without costs.

Hiesohbbeg, P. J., Woodwabd, Jenks and Hookee, JJ., concurred.

Interlocutory judgment modified to the extent of sustaining the demurrer to the second cause of action, and as so modified affirmed, without costs.  