
    Emeline Mapes, Executrix, etc., Respondent, v. Hamilton J. Snyder, impleaded, etc., Appellant.
    (Argued November 19, 1874;
    decided January 19, 1875.)
    Plaintiff, after the commencement of this action, married. Upon agreement of the parties made thereafter in open court, an order of reference was entered which contained a provision that her husband might be brought in or her real name be entered if required. On appearance before the referee defendant’s counsel objected to proceeding, because the action had not been revived or continued in such name. The referee decided that he had jurisdiction to proceed, and that plaintiff’s counsel could enter an order of substitution before the trial closed, and an ex parte order was entered and produced. Held, no error; that the action did not abate by the marriage of plaintiff, and the substitution of plaintiff’s newly acquired name was a mere matter of form, which was waived by defendant’s consent to the order of reference; and that if there was any irregularity in the order of substitution entered, it should have been corrected by motion.
    Defendant H. J. S. and wife executed to plaintiff’s testator, O. W. S., a conveyance of lands belonging to the wife without consideration, and for the purpose of defrauding the creditors of H. J. S. 0. W. S. exacted as a condition of reconveyance, a mortgage upon lands of H. J. S., which was given him. In an action to foreclose the same, held, that although the conveyance was not a fraud upon the creditors, as they had no interest in the property conveyed, yet it was a voluntary conveyance; and no fraud having been shown on the part of 0. W. S. in obtaining it, or any valid trust enforceable by the wife, the reconveyance furnished a sufficient consideration to uphold the mortgage.
    
      Appeal from judgment of the General Term of the Supreme Court in the fourth j udicial department, affirming a judgment in favor of plaintiff entered on the report of a referee. (Reported below, 2 N. Y. S. C. [T. & C.], 318.)
    This was an action to foreclose a mortgage executed by defendant Hamilton J. Snyder to Charles W. Snyder, plaintiff’s testator.
    The facts are sufficiently stated in the opinion.
    S. R. Ten Eyck for the appellant.
    The conveyance by Snyder and wife could not operate to defraud his creditors. (Pond v. Berg, 10 Paige, 140-154; Jackson v. Johnson, 7 Cow., 74-95 ; Taylor v. Gould, 10 Barb., 388; Meacham v. Burke, 54 N. Y., 217; Tracy v. Tallmage, 4 Kern., 177; Lomburg v. Purdy, 18 N. Y., 517; Ryan v. Dox, 34 id., 307.) The circumstances under which the conveyances were made and the confidential relation that existed between the parties are such that equity will relieve them although the object in making them was to defraud Snyder’s creditors. (Freelove v. Cole, 41 Barb., 318 ; affirmed, 41 N. Y., 619; Ford v. Harrington, 16 id., 285-291; Sears v. Shaffer, 6 id., 268-272; Nexen v. Nexen, 2 Keyes, 243; Brock v. Barnes, 40 Barb., 529 ; Gale v. Gale, 19 id., 249; Hall v. Shultz, 4 J. R., 240; approved 2 Kern., 109 ; 1 Story’s Eq. Jur., § 187; Boyd v. De La Montguie, 4 N. Y. S. C., 148; Brotherson v. Cousolier, 26 How., 219.) An accord unperformed consisting of mutual promises, and these having a new consideration is binding on the parties and an action will lie for its breach. (Davis v. Spencer, 24 N. Y., 390, 391 ; Billings v. Vanderbeck, 23 Barb., 552; Scott v. Frink, 53 id., 553; 18 N. Y., 395 ; Banker v. Snyder, 5 Barb., 63, 72.) The ease' could not proceed legally until an order of revivor continuing the action in plaintiff’s present name had been made and entered. (Code, § 121; Quackenbush v. Leonard, 10 Paige, 131.)
    
      D. Morris for the respondent.
    The grantor is estopped from alleging or proving that the deed to Charles W. Snyder was executed without consideration. (McCrea v. Purmart, 16 Wend., 460; Stackpole v. Robbins, 47 Barb., 212; Wood v. Chapin, 13 N. Y., 509-517; Mosley v. Mosley, 15 id., 334; Sweet v. Tinslar, 52 Barb., 271; Mapes v. Snyder, 2 N. Y. S. C., 318.) An accord without a satisfaction is a nullity. (Mitchel v. Hawley, 4 Den., 414; Garvey v. Jarvis, 54 Barb., 179 ; Brand v. Brand, 49 id., 346.) The deeds in evidence, being absolute and unconditional, the grantors cannot, in the absence of fraud or mistake, prove by parol that the grants were in trust. (Sturtevant v. Sturtevant, 20 N. Y., 39; Swick v. Sears, 1 Hill, 17.) The referee was right in holding he had jurisdiction to proceed in the action, and that plaintiff’s counsel could produce an order of substitution at any time before the trial closed. (Quackenbush v. Leonard, 10 Paige, 131; 1 Barb. Ch. Pr., 676; Code, § 121.)
   Rapallo, J.

This action was brought by Emeline Snyder, the widow and executrix of Charles W. Snyder, deceased, to foreclose a mortgage made to her deceased husband, by the defendant Hamilton J. Snyder. After issue joined and before trial plaintiff intermarried with one Marvin Mapes. At a Circuit Court and Special Term held in Seneca county on the 27tli of September, 1869, it was, upon the agreement of the attorneys for the respective parties made in open court, ordered that the action be referred to the Hon. John E. Seely to hear and determine, and that the husband of the plaintiff might be made a party to the action without motion, if required by the practice of the court, and the real name of the plaintiff entered if required.

At the first appearance of the parties before the referee the defendants’ counsel objected to the referee proceeding with the’ trial stating that since the action was commenced the plaintiff had intermarried with Marvin Mapes and that the action had not been revived or continued in her present name. The order of reference was thereupon read and the referee held that he had jurisdiction to proceed with the hearing upon the case as it then stood, and that the plaintiff’s counsel could produce the order of substitution at any time before the trial closed. An order was afterward produced, entered ex parte on the 21st of June, 1870, substituting the name of Emeline Mapes as plaintiff in place of Emeline Snyder.

We think that the ruling of the referee was correct. The action had not abated by the marriage of the plaintiff. Mo point is made as to the necessity of making her husband a party, and the substitution of her newly acquired name was a mere matter of form, to which the defendant consented on the making of the order of reference. The court below could have directed the entry of the formal order nunepro tune at any time before judgment, and if there was any irregularity in the order actually entered, it should have been corrected by motion.

The objection that there was no evidence of the marriage of the plaintiff to Mr. Mapes, is frivolous. This marriage Avas expressly admitted by the defendants’ counsel in making the objection to the action proceeding in the name of Emeline Snyder. He stated the fact of the marriage as the ground of his objection and the referee had the right to act upon this admission. The fact was conceded by both parties.

The material question is, whether there was any consideration for the mortgage. The referee finds in substance that the recital therein that it was given for the purchase-money of the mortgaged premises was not true, but that the real consideration was the reconveyance by Charles W. to Sardinaette, the wife of Hamilton J. of an undivided interest in a farm, which she and her husband had conveyed to Charles W. in 1839, with intent to hinder, delay and defraud the creditors of Hamilton J. The counsel for the defendant is probably right in his argument that this conveyance was not a fraud upon the creditors of Hamilton J., for the reason that it does not appear that he had any interest.in the farm Avhieh his creditors could have reached. But nevertheless it was a voluntary conveyance and no fact is found showing any fraud on the part of Charles W. in obtaining it or any valid trust which Sardinaette could have enforced. However mean it may have been on the part of Charles W. to exact any terms for his reconveyance of the farm, the defendant having acquiesced in his exaction we cannot say that the mortgage which he gave was invalid in law.

We can find no sufficient ground for reversing the judgment. It must therefore be affirmed with costs payable out of the proceeds of sale of the mortgaged premises.

All concur, except Folger, J., not sitting.

Judgment affirmed.  