
    James Darragh, Appellant, v. Margaret Rowe and Louise Rowe, Individually and as Executrices, etc., of John Stothers, Deceased, and Richard D. Williams, Defendants, Impleaded with Harry M. Goldberg, Respondent.
    First Department,.
    December, 1905.
    Demurrer—when plaintiff claiming title against fraudulent grantee cannot demur to answer of third person claiming rights as against. ■ such'fraudulent grantee. ,
    When a plaintiff claims title to and right to the possession of lands as heir as: ■against an alleged fraudulent grantee.and bis Successors in title, he cannot.assert an equitable'lien on other'lands which the fraudulent grantee has purchased with the proceeds of the lands claimed by the plaintiff. Hence, his. complaint, ds against á vendee of' .the lands purchased by the fraudulent, grantee with the proceeds, of a sale of the lands claimed by the plaintiff, states, no cause of action against such vendee and no demurrer lies by the plaintiff to-the answer of such- vendee, wherein he sets out the nature of his claim to the, lands purchased. ■
    When such vendee has been made a party defendant he has a right to. set out- in his answer his equitable right to the lands purchased by the fraudulent grantee-with the proceeds of the lands held under the fraudulent deed, both as against, the. plaintiff and. his vendor’s devisee. Hence, ,no demurrer by. the plaintiff' lies to such answer. ',
    Appeal by the plaintiff, James Darragh, from an interlocutory judgment of the Supreme Court in favor of the defendant Goldberg,,' entered' in the office of the clerk of the county of Hew York on the 18th day of July, 1905, itpon the decision of .the court, rendered after a trial at the Hew'York Special. Term, overruling the plaintiff’s demurrer to the answer of the defendant Goldberg.
    
      
      J. Wilson Bryant, for the appellant.
    
      Julius H. Cohn, for the respondent.
   Clarke, J.:

The complaint alleges that Mary J. Stothers, the mother of the plaintiff, was seized in fee simple and was the lawful owner of a certain piece of property in the borough of The Bronx on One Hundred and Fiftieth street, and also another parcel situated on One Hundred and Forty-second street; that said Mary J. Stothers died intestate February 10,1902; that John Stothers, the husband of said Mary J. Stothers, and tile stepfather of plaintiff, died December 13,1904, leaving a last will and testament under which letters testamentary were issued to the defendants Margaret and Louise Rowe, his daughters; that after the death óf Mary J. Stothers, and on February 26, 1902, there was recorded in the register’s office what purported to be a deed from Mary J. Stothers to John Stothers bearing date April 4, 1890, purporting to. have been acknowledged on April 4,1890, conveying the said premises; that the said Mary J. Stothers did not make, sign, execute or deliver said'alleged deed and no consideration was paid therefor; that Mary J. Stothers did convey by deed of March 16, 1898, the property on One Hundred and Fiftieth street, but never conveyed the property on One Hundred and Forty-second street, and died seized and possessed of the same, and that plaintiff is justly entitled to his share of said premises as an heir at law of said Mary J. Stothers, his mother; that defendant Williams claims to have purchased said premises from John Stothers in November, 1902, but that said Williams’ claim is subject to the rights of plaintiff and subordinate thereto; that the moneys received by said John Stothers from said Williams were used to purchase the premises bought by said John Stothers from Harvey J. Conkey, from whom he received a deed dated and recorded May 21,1903, to a piece of property on One Hundred and Forty-third street ; that said John Stothers at the time he invested said fund in said lot knew that he was dealing with the money belonging to Mary J. Stothers, deceased, and such investment was made for the use and benefit of the said Mary J. Stothers and her heirs, and the plaintiff as such heir is entitled to his share thereof, and has an interest and property right in said premises by reason of 'said investment; that, defendant Goldberg claims an interest in such last-mentioned premises by reason of an assignment of a contract for. the sale of the same made by John Stothers with one May Shiff, who has assigned same to said defendant, but that such interest and claim of the defendant Goldberg is' subordinate to the rights and interest, of the plaim tiff, and demanded that the alleged deed dated April4,1890, recorded February 26, 1902, be declared null and void and be canceled ; that Mary J. Stothers be adjudged to have died seized of the premises in One Hundred and Forty-second street; that plaintiff as heir at law be entitled to the premises in •■question and reinvested with the title in fee simple absolute; that ■ it be adjudged that. John Stothers invested the proceeds of said premises in the purchase of the lot in One Hundred and Forty-third street for the benefit of Mary J. Stothers, and that lie holds the same in trust for plaintiff, and that the said title to said lot be impressed with a trust accordingly for the benefit of the plaintiff. In short, he asks that the allegedhogus deed be set aside and the conveyance under it, and he be reinvested with the title to the One Hundred and Forty-second street lot, and also that the proceeds of the lot be followed into the One Hundred and Forty-third street lot, and a trust therefor impressed thereon.

The defendant Goldberg answered; as- a separate defense and also as a partial defense, and also by way of counterclaim and affirmative relief he alleged that on the 20th of October, '1904, John'Stothers was the owner in fee simple and held the legal title of the premises described in the 8th paragraph of the complaint, that is, the premises on One Hundred - and Forty-third street, purchased from Oonkey May 21, 1903, -and was in the actual possession thereof; that May Shiff believed said Stothers to be the owner at law and in equity of said prpmises, and on said day agreed with him in writing for the purchase thereof for $4,000, and paid him $250 as part of the. purchase price, and thereafter, for a valuable consideration, assigned the said contract to this defendant'; that said May Shiff was an innocent purchaser, and in good faith and for valuable consideration entered into said contract with Stothers, and defendant likewise wasmn innocent purchaser of the assignment thereof, without any knowledge, express or implied, of any of the facts recited in the complaint, and without any knowledge of the source of the funds or money with which Stothers had purchased the premises ; that both said Shiff and defendant paid the $250 .in good faith, and incurred damages and expenses in the examination of-the title, and are ready.and willing to complete the purchase and pay the balance of the price, and that defendant is the true owner in equity of the said premises, and that his rights and-equities are superior and paramount to those'of the plaintiff. For a further separate defense and counterclaim against the plaintiff and the defendant’s codefendants Eowe, individually and as executrices of Stothers, the defendant repeats the foregoing allegations and continues : That on the day set for closing the title, December 2, 1904, he attended at the place for closing the same ready to, and did offer to, comply with the contract, and duly tendered the balance of the .purchase price, and- that said Stothers refused to perform; that thereafter, and on December 18, 1904, said Stothers died, leaving a last will and testament, which was duly probated; said defendants Eowe. were appointed executrices with full power of sale; that by said will said Stothers gave, devised and bequeathed all of his property, real, personal and mixed, to the defendants Eowe equally; that the defendant has always been ready to perform, and has offered so to do, but said defendants Eowe, though demanded, have on their part refused to perform; that-the residue of said purchase. money has been ready and unproductive since December 2, 1904, and defendant has suffered damage in the loss of interest and income; that the real value.of said premises on the 2d of December, 1904, was'and now is about $2,500 in excess of the purchase price as fixed, and the defendant could have since resold for an amount of $2,000 in excess, and has been damaged in the sum of $2,500 by the refusal of John Stothers, his heirs and executrices, to complete said contract of purchase and sale, and has been further damaged in that he has incurred liabilities and expense in searching the title. Defendant demanded judgment dismissing the complaint as against him, and that the ultimate rights of the defendants as between themselves be determined; that the defendants Eowe, or any other party to this action adjudged to have the ownership of the premises, be required to specifically perform the contract of sale, or if such relief cannot be had, that this defendant be adjudged to have an equitable lien upon" the said premises, superior to the lien or equity of any other party to this action, for his payments, expenses and damages aforesaid, including the value of this contract, or that if no equitable relief can be had, that he have a money judgment against the defendants Eowe,, and. such other relief as may be just and equitable. .

The plaintiff demurred to the several affirmative defenses interposed. as counterclaims. The demurrer1 was overruled, and from, the interlocutory judgment entered thereon plaintiff appeals.

The plaintiff having made Goldberg a party defendant, and having alleged that he “ claims an interest ” in the premises, Goldberg-had the right to set up the facts upon which his claim was based, and, as all the parties in- interest were before the court, to ask for affirmative relief. It is conceded that so far as the defendants. Eowe are concerned the answer is good. Plaintiff claims that as lie claims title as heir through his mother, he is not concerned or answerable for any of the acts of John Stothers, his stepfather, through ■ wffiom Goldberg- gets his. claim. The difficulty is that the property on One Hundred and Forty-third street upon which Goldberg asserts a claim was never the property of Mrs. Stothers, plaintiff’s mother., 'It was bought by John Stothers upwards of a year-after Mrs. Stothers’ death. The claim of plaintiff is that he can trace into this property the money obtained by John Stothers. from the fraudulent sale of the One Hundred and Forty-second street property in ¡November, 1902,. which property did belong-to his mother. There are two answers to the demurrer. First, he asks in the same complaint to have - set aside the deed to-Williams of the One Hundred and Forty-second street property, and to have the title adjudged to he in' him, and at the same, time -to trace the proceeds of that sale into the One Hundred and Forty-third- street lot, and have his lien declared on that. That-is, to eat his cake and have it too. If he should succeed in liavingthe sale set aside, how could he pursue the proceeds as well?' Second, if this were an action brought by Goldberg, inasmuch as-the plaintiff asserts a claim to this property it would be entirely proper to make him a party defendant, and so Goldberg having-"been made a party defendant, it is entirely proper for him to setup-the nature of liis claim. -He asks no judgment against plaintiff;, all that lie asks is that his equities be declared as superior to his. The plaintiff having chosen to bring am equitable, action.,. it was. quite-proper that .all the parties interested and who would be affected by the judgment should be brought in, and being brought in that the exact nature of their respective claims should be set forth, although no substantial recovery could be obtained either for or against them. It is not essential in such a case that all the parties should be interested in the same way or affected alike by the judgment demanded.

There is another ground for sustaining the demurrer, which seems to be conclusive. The complaint states no cause of equitable .action as against Goldberg. His claim is through John Stothers, who held the legal title to the One Hundred and Forty-third street property and with whom Goldberg’s assignor made the contract to purchase. Plaintiff’s claim is as heir, of his mother upon the ground that the deed which purported to convey her One Hundred and Forty-second street property was fraudulent. If so, she died seized of that property, and the grantee under said fraudulent deed never acquired title, as the plaintiff himself alleges in his complaint, and the plaintiff can f ollow-the land, as, too, he attempts to do in this complaint.

Said the Court of Appeals in Marden v. Dorthy (160 N. Y. 56): “ It is legally impossible for any one to become a bona fide purchaser of real estate, or a purchaser at all, from one who never had any title. * * * It is equally impossible to construct an estoppel against the real owner upon a forged instrument placed upon record without the authority of any one. * * * Void things are as no things. * * * It Iras always been supposed that real property could not be thé subject of larceny, but this, is evidently a mistake if it be true’ * * * that the false papers * * * are to be given such legal effect as to divest the plaintiff, of her property and convey it to the defendants.” In the same case Judge Haight said: The Recording Act, as I understand the authorities, never was intended' to be a protection to innocent purchasers against theft, forgery, fraud or duress.” I do not understand that it has ever been held that the proceeds of land, the legal title to which has never been divested from the true ■owner, and which may be recovered by ejectment, may be followed. When the laud ea'nnot be followed for the reason that a title, not void but merely voidable, has passed into the hands of a bona fide purchaser for value, the proceeds may be followed into the hands of the fraudulent grantee or those who stand in no better position.

Under the allegations of this complaint ■—-.taken to be true upon demurrer-—the title never passed from Mrs., Stothérs, her alleged deed was bogus, John Stothers never acquired title, and could not. convey to Williams. If that be so, no cause of action is stated against Goldberg and so plaintiff’s demurrer to his- answer is bad.

The judgment is' affirmed, with- costs,' with leave to plaintiff to reply upon complying with the terms imposed below and the payment of the costs in this court within ten days.

O’Brien, P. J., Patterson, McLaughlin and Houghton, JJ.,. concurred.

Judgment affirmed, with costs, with leave to .plaintiff to reply on the terms stated in opinion. 
      
      See 1 R. S. 756, § 1, revised in Real Prop. Law (Laws ol 1896, chap. 547), §341.—[Rep. z
     