
    Mary Seiferd, Respondent, v. William G. Mulligan, Appellant, Impleaded with Agnes K. Mulligan.
    
      Complaint to set aside a deed obtained by fraud — the attorney who acted in the transaction is a proper pa/rty only where it is shown that if not a party the costs of the action would not be collectible.
    
    A complaint set forth an agreement, entered into between the plaintiff and the defendants in the action and others, to purchase real estate with moneys contributed by the parties to the agreement, to resell the- same and divide the profits; that pursuant thereto certain property was conveyed to the plaintiff, and that the defendants William G. Mulligan and Agnes K. Mulligan, who, in their capacity as a firm of attorneys, had been retained by the plaintiff to represent her in the transaction, with intent to take undue and fraudulent advantage of the plaintiff’s confidence in them as attorneys, obtained, without consideration, the plaintiff’s signature to a deed conveying the property to Agnes K. Mulligan ; that the deed purported to be acknowledged before the-defendant William G. Mulligan, but that the plaintiff did not execute or acknowledge it with knowledge of its contents, and that she did not deliver it or cause it to be delivered, nor convey or intend to convey the property to the defendant• Agnes • K. Mulligan.
    
      Judgment was demanded that the deed be set aside as void and that the plaintiff be adjudged to hold the title to the real estate in trust for herself and the other .contributors.
    
      Held, that William K. Mulligan was not a proper party to the action;
    That the rule that a party through whose instrumentality a fraud has been committed may be made a party to an action to set aside an instrument, to which he was not a party, obtained through such fraud, was founded upon the right of the complainant to have some one who should be answerable for the costs, . and that in justification of the joinder of such a person as a defendant'some fact should be stated taking the case out of' the ordinary rule prescribing that the defendants shall be those who are interested in the subject-matter of the action or who are necessary to the determination of the issues therein, while in the present case the complaint did not demand costs against either defendant, and the defendant Agnes K. Mulligan was before the court, of full age and able to respond to.any judgment for costs.
    
      Semble, that if the defendant William K. Mulligan was a necessary defendant as one of the beneficiaries under the agreement alleged in the complaint, the complaint was demurrable owing to the failure to make the other beneficiaries parties.
    Patterson, J., dissented.
    Appeal by the defendant, William G. Mulligan, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1898, upon the decision of the court rendered after a trial at the New York Special Term, overruling the said defend-, ant’s demurrer to the plaintiff’s amended complaint, and also (as stated in the notice of appeal) from the order directing said judgment to be entered.
    
      C. Donohue, for the appellant:
    
      Maurice Meyer, for the respondent.
   Ingraham, J.:

This appellant demurred to the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action against him, and from the judgment overruling that demurrer he appeals. The complaint alleges that the defendants, representing themselves to be attorneys and counselors at law and duly admitted and practicing as partners in the courts of this State^ were retained and employed by the plaintiff in their professional capacity and acted for the plaintiff as such, with reference to, the transaction set forth in the complaint, and that prior to August 22, 1896, the plaintiff, the defendants and others entered into an agreement for the purpose of contributing the moneys necessary to purchase certain real property specifically described in the complaint, which was . purchased and conveyed to the plaintiff, the said property to be subsequently sold and the parties to the agreement reimbursed for the contributions made for its purchase, and the gains and profits thereof to be divided among the parties to such agreement in proportion to their contributions towards such purchase ; that the said property was conveyed to the plaintiff by a deed “ absolute in form,” and that subsequently the defendants Mulligan obtained from the plaintiff, without any consideration therefor, her signature to an instrument in writing purporting on its face to be an absolute conveyance .in fee simple with full covenants of seizin and warranty, which conveyed the property to the defendant Agnes 3L Mulligan, and that the said defendant Agnes K. Mulligan claims to be the absolute and sole owner in fee and in possession of said property ; that said deed purports to have been acknowledged before the defendant William G. Mulligan, as a notary public; that the plaintiff did not sign or execute the said instrument purporting to be a deed of conveyance with any knowledge of its contents whatever, and did not at any time deliver the same or cause it to be delivered to the defendant Agnes K. Mulligan, or to* any person for her behalf or on her account;' that she did not acknowledge the execution of said deed before the said William G. Mulligan with any knowledge whatever of its contents, and that she never conveyed or intended to convey to the defendant, Agnes K. Mulligan the real property described, or any part thereof or any interest therein; that the said defendants Mulligan, acting as. plaintiff’s attorneys and counsel and legal advisers, with intent and with the preconcerted design of obtaining title to the property, and in violation, of the trust and confidence reposed in them by the plaintiff,'and.with the design to take undue and fraudulent advantage of the plaintiff’s confidence in them as attorneys, counsel and legal advisers to her, procured her signature to the instrument purporting to be an absolute conveyance. And the plaintiff demands judgment that the instrument in writing purporting to be a conveyance in fee of the real property described in the complaint be vacated, set aside and annulled as fraudulent and void, and that the plaintiff be adjudged to hold the title to the real property described in the amended complaint under the agreement, in trust for herself and for the benefit of all other persons, who have contributed to its purchase, according to their respective rights and interests therein, and for such other and further judgment, decree or order in the premises as to the court may -seem just.

The question is whether any cause of action was. alleged against the defendant William G. Mulligan. There is no allegation in the complaint that he acquired any title or interest in the property by this conveyance, and no" fact is alleged to make him a necessary or proper.party to the action for the purpose of insuring to the plaintiff a good .title to the .property in case she obtains a judgment declaring the conveyance to be fraudulent and void. Nor is this defendant appellant a proper party as one of those for whose benefit, under the agreement alleged, the plaintiff was to hold the property, as the other beneficiaries are not made parties. If this appellant as a beneficiary were a. necessary party, then the demurrer should have been sustained upon the other ground stated, viz., that tliere was a defect of parties defendant in not making all the beneficiaries parties. It was held by the court below, however, that this appellant was a proper party under the principle stated in Brady v. McCosker (1 N. Y. 214); Huggins v. King (3 Barb. 619); Hammond v. Hudson River Iron & Machine Co. (20 id. 386), and Pritchard v. Palmer (88 Hun, 412).

In these cases it was held-that where persons are fraudulently charged with obtaining a conveyance of property, or a will, or other instrument, in favor of an infant or absentee, from whom costs cannot be collected, upon- filing a bill in equity to set aside such conveyance or ■ instrument, it is proper to make the persons who conceived and carried the fraud into execution parties to charge them with costs in the event of the plaintiff not being able to recover costs against the persons for whose immediate benefit the fraudulent instrument- was obtained. But in all these cases some special facts were alleged to show that the persons thus sought to" be charged with costs actually procured the execution of the instrument sought to be set aside, while the person in. whose favor or -for whose .benefit the fraud was perpetrated was either an infant or an absentee, or that for some reason a judgment for costs would be ineffectual. These cases seem to be founded upon a decision of the lord chancellor in Bowles v. Stewart (1 Schoales & L. 209). That was a case to set aside a release and the dismissal of a bill in equity, upon the ground that they had been obtained by fraud. The person in whose favor the release was given was a resident of England, while the action was pending in the Irish Court of Chancery; and the plaintiff, in addition to the person in-whose favor the release was given, made parties defendant his solicitor, a resident of Ireland, and another person, who were charged with having conspired to procure from the plaintiff a release of. his claim. The solicitor claimed that he was improperly made a' party, as he was simply acting in his capacity as solicitor; but Lord Redesdale held that he was properly made a party, as “ he was an acting party in the transaction and properly brought to a hearing, and ought to he chargeable with the costs, so far as they relate to the release, in case they cannot be recovered of ” the other defendant. In Brady v. McCosker (supra) the plaintiff filed-a bill to have declared void a will in favor of. the defendants Maria L. and J. R. Brady, claiming that the execution of such will was fraudulent and improperly procured by the defendant J. T. Brady, and that the same was null and void. Maria L. Brady was an infant, and it was alleged in the bill that the defendant J. T. Brady was the one guilty of the fraud. The Court of Appeals held that there was no misjoinder of parties, as J. T. Brady was a proper party to the bill for the reasons suggested by the chancellor, and cited Bowles v. Stewart (supra). The opinion of the chancellor is found in 1 Barbour’s Chancery, 343. The chancellor there said : The defendant J. T. Brady being charged with fraud and collusion in obtaining that will, in favor of an infant, who could not be properly charged with the costs of the proceedings to set it aside, appears also to have been a proper though not a necessary party to the suit. For he • might be personally charged with costs in case the complainant should succeed. His demurrer to the whole of the original bill does not, therefore, appear to have been well taken.”

The origin of the rule that a person through whose instrumentality a fraud has been committed may be’ made a party to an action to set aside an instrument obtained through such fraud, seems to have been founded upon the right of the complainant to have some one who was answerable-for the costs; and thus,-where the fraudulent scheme was to vest the title to property, or to obtain some advantage for a person against whom costs cannot be collected,' as an infant or an absentee, then thoe one responsible for the fraud may be made a party defendant for the purpose of casting such person with, the costs, in case such costs cannot be collected from the person who is to- benefit by the fraud. But to make such a person a proper party, we think some fact should be alleged taking the case out of the ordinary rule that the proper parties defendant are those who have or claim an interest in the subject-matter of the action . adverse to the plaintiff, or who are necessary for the complete determination or settlement of the questions involved. To hold otherwise would allow a plaintiff to make parties all those who, as attorneys or agents, aided in obtaining the execution of an instrument by fraud, although they obtained no property or advantage by the fraud, and no relief was asked as against them.

The subject of parties to an action' is regulated by article 1, title 2, chapter 5 of the Code of Civil Procedure. By section.447 it is provided that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary, party défendant for the complete determination or settlement of a question involved therein. This appellant would not be a proper party defendant within this section. We think, therefore, that the complaint fails to allege the facts which constitute a cause of action against him. The person to whom the property was transferred was before the court, was of full' age and, so far as appears, able to respond to any judgment awarded against her for costs. The allegations are that the fraud- by which the execution of the deed was procured was the joint act of these two defendants, the deed conveying the property to one. The only relief asked is that the deed be declared void, and that it'be declared that the legal title to the property was vested in the plaintiff. It is riot alleged that the plaintiff sustained any damage by reason of the fraud committed; and no relief of any kind is asked, against the appellant, the complaint even failing to ask for costs against either defendant. We think, therefore, that, upon the facts as stated in the complaint, no cause of action is alleged. against this defendant.

The judgment must, therefore, be reversed, with costs in this court and in the court below, with leave to the plaintiff to amend her complaint within twenty days upon payment of such costs.

Yah Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Patterson, J., dissented.

Judgment reversed, with costs in this court and in the court below, with leave to the plaintiff to amend her complaint within twenty days-upon payment of such costs.  