SUIT. CREDITORS' N. Y. SUPREME COURT. GENERAL plaintiffs were separate judgment TERM. THIRD DEPT. creditors of the latter; that the plaintiff, Bradley, had a judgment Charlotte Tabor et al., applts., v. against both of the Wetmores, and K. E. Bunnell et al., respts. Decided September, 1880. Although individuals having separate judg ments against the debtor may join as plain that the plaintiff, Tabor, had a judgment against R. G. Wetmore alone. There was no averment in the tiffs in a creditor's suit, they must show a complaint that execution on the right in common to the relief demanded; they judgments, or on either of them, must all have judgments against the party had been issued to the county defendant charged with the fraud, and the wherein the defendants, or either of fraud must be such as affects them all. them, resided. A complaint in a creditor's action alleged that and returned unsatisfied. Wm. Youmans, for applts. Held, That different and independent causes of action were improperly united in the complaint, and it was, therefore, defective. That the complaint in a creditor's suit, to be good on demurrer, must show a common right in favor of all the plaintiffs, not in one particular item or part of the claim, but in the entire subject matter. Appeal from a judgment entered That, although individuals credupon an order made by Justice Mur-itors, having separate judgments ray, sustaining a demurrer to the against the debtor, may join as complaint. plaintiffs in a creditor's suit, yet the The action was in the nature of a uniting creditors must show a right creditor's bill, to set aside two con- in common to the relief demanded. veyances made to the defendant, They must all have judgments Bunnell; one made by the defend- against the party defendant ants R. G. Wetmore and Ada L. charged with the fraud, and the Wetmore; the other by the latter fraud alleged against the party must alone; also, a land contract between be such as affects them all in R. G. Wetmore and the defendant, common. J. D. Curtis; also, a chattel mort- That, in such an action, it is essengage made by R. G. Wetmore to tial that the complaint should show Bunnell. The complaint charged that the plaintiff has exhausted his that each of these conveyances was remedy at law. Hence, it should contain an averment that execution suit was brought by order of the court. has been issued to the proper The complaint prayed to have the county, and returned unsatisfied. Judgment affirmed, with costs. Opinion by Bockes, J.; Learned, P. J., and Martin, J., concurring. RECEIVER. transfers adjudged void, the deed cancelled of record, and the property restored, and for an accounting and judgment for the rents and profits, and that a receiver be appointed, Barnes being insolvent. The defendant, although denying in gen N. Y. SUPREME COURT. GENERAL eral terms that he obtained the TERM. THIRD DEPT. Sarah Mitchell, a lunatic, by John W. Mitchell, committee, &c., respt., v. Edward G. Barnes, impleaded, &c., applt. Decided September, 1880. In an action to set aside transfers of property on the ground that they were obtained from plaintiff, a lunatic, by fraud and coercion, and without consideration, the answer did not deny want of consideration, or that the grantor was of unsound mind or incapable of managing her affairs. Held, a proper case for the appointment of a receiver pendente lite. conveyances by duress, undue in- Wm. N. Noble, for applt. Held, that a cause for the equitable relief demanded was made by the averments of the complaint, and that the facts alleged therein being substantially undenied, it was a proper case for the appointment of a receiver. Order affirmed, with $10 costs and disbursements. Appeal from an order made at a Special Term appointing a receiver of property, real and personal, the subject of controversy in this action. The property was alleged to have concurring. been obtained by fraud and coer Opinion by Bockes, J.; Martin, J., LIABILITY FOR INVESTMENTS. N. Y. SUPREME COURT. GENERAL cion and without consideration by TRUSTEES. years continuously (a period over- A James Ormiston, applt., v. Horatio Decided September, 1880. trustee is not allowed to invest in bonds and mortgages out of the state without express authority from the court or by the instrument creating the trust. Appeal from a decree of the surrogate of Otsego County, upon a proceeding by petition to compel a to the parties entitled thereto," &c. trustee to pay to the cestui que trust Said Olcott failed to pay the interthe interest of a trust fund for the est or income due April 1, 1879, exyear ending April 1, 1879, and to cept the sum of $200 paid during hold the trustee personally respon- the year 1878, leaving about $400 sible for such interest. Robert due at that date, payment of which Ormiston died, leaving a will, which was demanded and refused. Therewas duly admitted to probate by upon James Ormiston presented a the surrogate of Otsego County, on petition to the surrogate, praying the 4th day of December, 1842, for an order that said trustee should wherein he devised his residuary show cause why he should not pay estate, both real and personal, to to the petitioner the amount so due William M. Oliver, Oliver A. Morse for interest. The answer to said and Horatio J. Olcott, executors and petition stated, in substance, that trustees therein named, in trust, as said Oliver A. Morse, in his lifetime to the interest and income arising had sole charge of the trust funds, therefrom, for the benefit of his son, and mingled the same with his own. James Ormiston, the appellant, and That after the death of said Morse, his wife, during their lives, and dur- Olcott, in the exercise of his discreing the life of the survivor of them, tion, took a bond of parties in Toledo, and at their decease the same was Ohio, and a mortgage on lots in that to be paid to the grand-children of city and state, payment of which the testator. Letters testamentary was guaranteed by Anna Morse, sole were granted to said Oliver, Morse legatee of Oliver A. Morse, who was and Olcott, and they took upon solvent, and his estate perfectly rethemselves the execution of the sponsible. The surrogate found that trust. Oliver died in the year 1863 the mortgagors had become insolvand Morse in the year 1870. On ent, and that the trustee, in consethe petition of said Olcott, sole sur- quence of not having received any viving trustee, for an accounting, the interest from them, had not been surrogate made a decree, reciting able to pay over to the petitioner "that there still remains in the the interest or income due April 1, hands of said executor and trustee, 1879, and that Olcott had not been the sum of $11,071.09, which said guilty of any such wrong doing or sum the said executor and trustee is neglect of duty as rendered him hereby ordered and directed to re- personally liable. The prayer of the tain and properly invest in good petition was therefore denied. securities, and pay the interest aris- H. Sturges, for applt. ing therefrom, annually, on the 1st S. A. Bowen, for respt. of April in each year, to James and Held, That a trustee is not allowed Agnes Ormiston, according to the to invest in bonds and mortgages provisions of said last will and tes- upon property out of the state tament; and after the decease of without express authority from the said James and Agnes Ormiston, he court or by the instrument creating is directed to pay said principal sum the trust. And that, treating the ac Vol. 10.-No. 24. ceptance of the Ohio bond and mort- described in the complaint formed gage as practically an investment the westerly part. He left him surmade by Olcott, the surviving trus-viving his widow, Nancy Gibbs, six tee, it was unauthorized. Decree reversed, with costs, and the prayer of the petition granted. Per curiam opinion. Learned, P, J., and Bockes and Westbrook, JJ., concurring. EJECTMENT. DOWER. TEN- children and one grandchild, Henry G. Webster, the son of a deceased daughter. Elias T. Gibbs was one of the children, and is still living. He is the father of the two plaintiffs, and of the defendant, Barzilla Gibbs, by his wife, at that time Sarah L. Gibbs. These three were their only children. On the 23d of No N. Y. SUPREME COURT. GENERALvember, 1857, said Henry G. Web TERM. THIRD DEPT. ster quit-claimed all his interest in said land to said Sarah L. Gibbs. Byron Gibbs et al., respts. v. Ed- In April, 1860, the heirs agreed mund S. Esty et al., applts. Decided September, 1880. Plaintiffs' ancestor died intestate, leaving a widow, six children and a grandchild, the son of a decased daughter, surviving. The latter sold his interest in the land to S., the wife of G., one of the intestate's sons. The heirs set apart sixty-six acres, with the homestead building, to the widow as her dower, and quit claimed the balance to each other. S. died before the widow. After the death of both S. and the widow, G. sold the land, including said sixty-six acres, to defendants' grantor. In an action of ejectment to recover S's interest in said sixty-six acres, Held, that S. had not at any time during her life such an actual seizin in fact as entitled her husband on her death to hold it as tenant by the curtesy. upon a division, among themselves, of the land, after first assigning to the widow, for her dower, the north half of the 132 acres, including the homestead buildings. The remainder they quit-claimed to each other, in several parcels. The widow had, from the death of her husband up to this time, occupied the homestead buildings conjointly with the whole farm. She subsequently occupied said buildings and the sixtysix acres assigned to her as her dower, and had the exclusive possession and enjoyment thereof as her dower, continuously, until her death. Sarah L. Gibbs died intestate November 2, 1866, and Nancy Gibbs, the widow, died in April, 1870. After his wife's death, and after the death of the widow, Elias T. Gibbs (in 1875), sold by warranty deed the 132 acres (including the widow's dower of sixty-six acres) to the Wileys, and they, in 1576, in like manner sold to the defendant, Esty. The sixty-six acres was al Appeal by the defendants from a judgment entered upon the decision of the court after trial without a jury. The action was ejectment, brought to recover two-thirds of an undivided seventh interest in about sixty-six acres of land. On the 5th of March, 1857, Garrett G. Gibbs, the grandfather of the plaintiffs, died intestate, seized in fee and possessed of a farm of about ways treated and described by the 200 acres, of which the 132 acres heirs and the widow and particu larly by Elias T. Gibbs, as the ant thereto, until her decease, was widow's rightful dower. legal and valid as an assignment of dower. That after such assignment the seizin of the heirs and of those claiming under them was defeated The only defense insisted on by the defendants, upon the trial, was that Elias T. Gibbs had a right, as tenant by the curtesy, to his wife, Sarah L.'s, interest in said sixty-six ab initio; and the dowress was in acres, which was an undivided possession of the seizin of her husseventh, and which descended, at band as of the time when that her death, to her three children, seizin was first acquired. the plaintiffs, and the defendant, Barzilla Gibbs. Judgment affirmed, with costs. Opinion by Bockes. J.; Learned, P. J., and Follett, J., concurring. The justice who tried the cause at the circuit held and decided that Elias T. Gibbs had no tenancy by the curtesy, because Sarah L., his wife, did not have actual seizin N. and possession. And he ordered. judgment for the plaintiffs for the recovery of the undivided twothirds of one-seventh of sixty-six acres, with $66.56 damages and costs. P. G. Ellsworth, for applts. Smith Brothers, for respts. Held, That Sarah L. Gibbs had not, at any time during her life, such an actual seizin in fact and in deed of the premises in controversy as entitled her husband, on her decease, to hold the same as tenant by the curtesy. That during all the time after the death of Garrett G. Gibbs, until the decease of his widow, the latter had the actual, whole and exclusive possession of the premises, and neither Sarah L. Gibbs, nor her grantor, Webster, had more than a seizin in law. FIRE INSURANCE. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Thomas Doran, respt., v. The Franklin Fire Insurance Co., applt. Decided September, 1880. The policy in suit provided, that if the insured should have any other insurance on the property, without the consent of the company, it should be void. There was a prior policy on the property, issued by another company, which provided that if the insured should have or thereafter make any other contract of insurance without the consent of the company, it should become void. Held, that there was not a double insurance; that the former policy, by its own terms, became void on the issuing of the policy in suit, and that a compromise under the former policy, made after it became void, did not give vitality to it, Appeal from an order made at a Special Term denying the defendant's motion for a new trial, and also from a judgment entered upon a verdict in favor of the plaintiff. That the setting off and assign- The action was upon a policy of ment of dower to the widow, with insurance, to recover a loss susthe consent and by the agreement tained by fire. The defense was of all parties interested, and her other insurance upon the property actual occupation under and pursu- in violation of certain provisions in |