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property, and the increased value, was owing to the aforesaid improvements and labor made and done and money expended and laid out by said defendant, Albro A., in manner aforesaid.
Plaintiff further alleges, that the said defendant, Albro A., has no other property or interest out of which the demand of plaintiff can be satisfied, except his interest on said moneys or securities received by said defendant, Mary Jane, on the sale of said property; that said Mary Jane, as plaintiff is informed and believes, claims to be the sole owner of said securities and any moneys received thereon.
That said securities were in two promissory notes, one for the sum of $500, and the other for the sum of $900, the former of which notes, as plaintiff is informed and believes, has been paid to said Mary Jane, and the last is unpaid.
The plaintiff alleges, that he is apprehensive that he may wholly lose his demand against said defendant, Albro A., unless the said defendant, Mary Jane, be restrained from collecting the money due or to become due on said note last described, except so far as it exceeds the amount of plaintiff's claim against the defendant, Albro A., and the amount of his costs of suit.
Wherefore plaintiff prays that it may be adjudged and decreed that the defendant, Albro A., did expend labor and that of his servants, and did outlay his money and furnish materials, all for the improvement of, and upon, said property aforesaid ; that the same was greatly improved and increased in value thereby, and that the value of such improvements belonged to said defendant, Albro A., and that the defendant, Mary Jane, be adjudged and decreed to pay over to plaintiff the amount of the said judgment, with costs of this suit, out of any money she may receive or may have received from such sale, over and above the purchase price paid by her for said property on said purchase, or upon the securities aforesaid, and that said defendant, Mary Jane, be wholly restrained from receiving, collecting, meddling with or in any manner interfering with any of said securities of the moneys due or to become due thereon, over and above the amount so as aforesaid paid by her to said Winchel, until the further order of this court, or for such further or such other order as to this court shall seem meet and proper, with costs of action.
D. S. COWLES,
Hudson, N. Y.
The foregoing precedent is one of a somewhat novel character, and I insert it without expressing any opinion whether the statement of facts which it contains are such as to entitle the plaintiff to the relief which he seeks, or, indeed, to any relief. The counsel whose name is signed to it, and by whom it was drawn, in kindly furnishing me with a copy, expresses confidence that the action would lie, and that the relief sought might be obtained.
To compel husband and wife to execute a lien on the wife's
separate real estate, to secure a sum of money loaned to aid in the purchase of such real estate.'
SUPREME COURT-ULSTER COUNTY.
John P. Marquat and Lewis Marquat
agt. Peter Marquat and Elizabeth his wife.
The complaint of the abovenamed plaintiffs respectfully shows to the court, that the said defendant Elizabeth, who is one of the daughters and heirs-at-law of Benjamin Ten Broeck, late of the town of Kingston, deceased, as such was seized in fee of one undivided fourth part of all that farm whereof her father died seized in fee, situated in the town of Kingston, in the said connty of Ulster, described and bounded as follows: [Describing the premises.]
That the said defendants, either alone or in connection
1 The complaint in this case contains no cause of action for the equitable remedy demanded in the prayer for relief. A recovery, however, was allowed against the defendant, Peter Marquat, for the money loaned, and the complaint dismissed as to the wife. This judgment, reversed by the Supreme Court (see 7 How., 417), was subsequently affirmed by the Court of Appeals. (2 Kernan, 336.) I have inserted the complaint for the purpose of showing how far the courts have gone in the construction of section 275 of the Code. Even in a complaint like this, professedly framed for equitable relief, if the plaintiff, on the trial, fails to prove a case entitling him to the relief specifically demanded, but proves that the defendant is liable to him for money, he may recover. As to cases in which an equitable lien for the purchase money of real estate is created, and will be decreed in similar circumstances, see opinion of Justice PARKER on the decision of the case at Special Term, 7 How., 418.
with one David P. Marquat, as these plaintiffs are informed and believe, being desirous of purchasing the rights of the coheirs of the said defendant, Elizabeth, to wit, Margaret Ten Broeck, Sarah C. Ten Broeck and Maria Ten Broeck, in the above described lands, entered into a contract in writing for the purchase and sale of the respective rights of the said Margaret, Sarah C. and Maria, and also of the dower right of their mother, Elizabeth Warren, which was to be consummated on the 1st day of May, 1849, by a deed, on the payment to the said grantors of the sum of $1,500 at the same time.
That shortly before the time for the said performance, these plaintiffs, who are the brothers of the said defendant, Peter Marquat, were informed by the said defendants that all the money they could raise by a mortgage on the said premises was the sum of $1,200, and that unless these plaintiffs would assist them to raise the sum of $300, the said purchase, which they considered a very advantageous one, would have to fall through, and that if these plaintiffs would assist them to raise the said sum of $300, they should be secured by a lien on the said farm subsequent to the mortgage for $1,200 abovementioned.
That these plaintiffs thereupon assisted the said defendants to the said sum of $300, and which was paid upon the aforesaid purchase.
That these plaintiffs, relying upon the integrity of the defendants, did not trouble themselves in the examination of the title deeds, but they are informed and believe that on or about the 30th day of April, 1849, the said Margaret Ten Broeck and Sarah C. Ten Broeck and Maria Ten Broeck, of the town of Kingston, together with Elizabeth Warren, widow, by deed bearing date the 7th of April, 1849, in consideration of the sum of $1,500, conveyed to David P. Marquat and to the said defendant, Elizabeth Marquat, three undivided fourth parts of the lands hereinabove set forth and described.
That, as these plaintiffs are informed and believe, and so charge the truth to be, the said David P. Marquat did not advance or pay any of the said purchase moneys.
That on the said 30th day of April, 1849, as these plaintiffs are informed and believe, the said David P. Marquat and Sarah his wife, and the said defendants, made and executed their mortgage to one Elijah Dubois upon the whole of the said above described lands to secure the payment of the sum of $1,200, by means whereof the balance of the purchase moneys was raised and the aforesaid purchase completed.
That, as the plaintiffs are informed and believe, the said David P. Marquat, and Sarah his wife, on the 15th of January, 1851, sold and conveyed their right, title and interest in and to said lands to the said defendant, Elizabeth Marquat.
That on the said last mentioned day the said defendants executed to the said Elijah Dubois a further mortgage of $150 upon all aforesaid lands.
That the said defendant, Elizabeth, is now the owner in fee of all the aforesaid lands, subject only to the said mortgages to the said Elijah Dubois.
These plaintiffs further say, that the said defendants, although often requested, have refused and still do refuse in any way to secure these plaintiffs for the moneys so advanced by them in the purchase of the said lands.
That the said Peter Marquat has not any property in his own right, and that unless the aforesaid original understanding is carried out these plaintiffs will be remediless in the premises.
These plaintiffs further say, they always have been willing to take a lien upon the aforesaid lands for the