
    Jacob Heyman and Lucy A. Heyman, Respondents, v. John Swift, Appellant, Impleaded with Henry R. R. Coles, Respondent.
    
      Partition suit — a defendant, alleging an equitable right to plaintiff’s interest in the land, need not bring into court the consideration agreed to be given therefor.
    
    In an action of partition, in which it appears that the defendant upon delivering to the plaintiff a number of shares of corporate stock is, in equity, entitled to a conveyance by the plaintiff of the latter’s interest in the premises sought, to . be partitioned, the defendant is not obliged to bring the stock into court and make a tender upon the trial, but the plaintiff's rights will be secured by a provision in the decree that the stock shall be delivered to him upon his conveying to the defendant.
    Appeal by the defendant, John Swift, from an interlocutory judgment of the Supreme Court in’favor of the plaintiffs and the defendant Henry R. R. Coles, entered in the office of the clerk of the county of Hew York on the Yth day of July, 1903, upon the decision of the court rendered after a trial at the Hew York Special Term in a partition action.
    
      L. C. Ferguson, for the appellant.
    
      Maurice Marks, for the plaintiffs, respondents.
   Laughlin, J. :

The action is brought for the partition of two parcels of real estate situated in the city and county of Hew York. On the 9th day of September, 1901, the appellant, who then owned both parcels in fee simple absolute, conveyed an undivided half of each to one John D. Spellman, who in turn conveyed the same to the plaintiffs on the 16th day of September, 1901. The plaintiffs claim an undivided half interest in each parcel, subject to certain liens which are not in controversy, by virtue of this deed from Spellman which is their only title. The appellant denied plaintiffs’ ownership and alleged that the conveyance from Spellman to .the plaintiffs was without consideration, fraudulent and made pursuant to a conspiracy between them to cheat and defraud the appellant; and as a counterclaim he alleges a cause of action for a reconveyance by Spellman of one of the parcels, by virtue of an agreement made prior to the conveyance by Spellman to the plaintiffs, and facts showing that he is either entitled to a reconveyance of the other parcel upon the ground that his conveyance thereof. to Spellman was without consideration and procured by fraud or in trust to raise money thereon by mortgage, which trust was not performed, or to an equitable lien thereon for the sum of $1,500 and demanded judgment for a reconveyance of both parcels and for $10,000 damages.

It appears that Spellman, while he had title, made and executed a sufficient agreement in writing to reconvey one of the parcels to. the appellant in consideration of $100 and 50,000 shares of stock in the Colorado Gold and Silver Mining and Development Company to be delivered upon the organization of said company. The appellant showed that he paid the cash consideration pursuant to this agreement to reconvey, and was ready and willing to perform by delivering the stock as soon as the corporation was organized; that in the meantime and before the organization of the company, Spellman'departed from the State and remained absent, so that á tender could not be made; that by letter and through counsel he tendered the stock to Spellman and to plaintiffs as soon as he obtained it. He also showed that Spellman induced the conveyance of the other parcel upon the representation and agreement that he could and would obtain a loan of $3,000 by giving a mortgage thereon before putting the deed on record and would turn the proceeds thereof over to appellant; that in violation of this agreement he recorded the deed and conveyed to plaintiffs without securing the loan. This and other evidence introduced in behalf of appellant was sufficient to show that Spellman executed the conveyance to the plaintiffs in fraud of the rights of the appellant and with the intention of defeating appellant’s right to a reconveyance of one of the parcels and to an interest in Spellman’s share of the other to the extent of one-half of the proposed loan. Upon proof of these facts it was incumbent upon the plaintiffs to show that they were bona fide purchasers for value. They did not testify nor was Spellman examined as a witness. The only consideration recited in the deeds from Spellman to the plaintiffs is one dollar; and there is no evidence of any other consideration passing between him and the plaintiffs. The plaintiffs claimed to be tenants in common of both parcels with appellant.. The' appellant shows that he is in equity, entitled to a conveyance of one of the parcels, and either to a conveyance or to a vendor’s lien upon the other for $1,500 and interest thereon from the time the loan should have been procured.

Of course the appellant will not be entitled to a reconveyance ■unless he is prepared to perform the contract on his part by delivering the stock. The appellant does not allege a-tender of the stock to the respondents ; but he does allege readiness and ability to perform and that a tender was prevented by the continued absence 'of Spellman from the State. He, however, proved upon the trial, without objection, an actual tender to the plaintiffs, and no question as to the sufficiency of the tender or pleading was raised upon the trial. This being a suit in equity the appellant was not obliged to bring the stock into court and make a tender upon the trial; but the right of the plaintiffs to the stock will be secured by a provision in the decree for delivery thereof to them upon their conveying to. appellant. (3 Pom. Eq. Juris. § 1407 and note ; Crary v. Smith, 2 N. Y. 60, 65 , Stevenson v. Maxwell, Id. 408, 415 ; Freeson v. Bissell, 63 id. 168 ; Thomson v. Smith, Id. 301 ; Powell v. Linde Co., 49 App. Div. 286, and cases cited.)

It follows, therefore, that the interlocutory judgment which adjudges that the parties are tenants in common'of both parcels as alleged in the complaint, is erroneous and must be reversed and a new trial granted, with costs to appellant to' abide the event.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred; Ingraham, J., concurred in result.

Judgment reversed, new trial granted, costs to appellant to abide event.. • - -  