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mary proceedings for that purpose, plaintiff could collect the rents by summary proceedings or otherwise, though defendant had not defaulted.
[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 79.*] 2. LANDLORD AND TENANT (§ 79*) — ASSIGNMENT OF LEASE AS SECURITY — LIABILITIES OF ASSIGNOR-USE OF PROPERTY.
Where defendant secured a loan from plaintiff by assigning to her a lease to defendant of certain premises and subleases, and made plaintiff his attorney to collect the rents and maintain summary proceedings therefor, etc., defendant was impliedly bound to reimburse plaintiff for necessary expenses incurred in proceedings to collect rents, and plaintiff could retain the leases as security for payment of such expenditures after the loan was paid.
[Ed. Note. For other cases, see Landlord and Tenant, Dec. Dig. § 79.*] 3. PLEDGES (§ 44*)-PAYMENT-EFFECT-RELEASE OF COLLATERAL.
Ordinarily payment of the indebtedness releases the collateral security. [Ed. Note. For other cases, see Pledges, Cent. Dig. §§ 103-107; Dec. Dig. § 44.*]
4. ATTORNEY AND CLIENT (§ 189*) — ATTORNEY'S LIEN - PROTECTION AGAINST SETTLEMENT BETWEEN PARTIES.
Where, under an assignment of subleases to secure a loan, with power to institute proceedings to collect the rents, plaintiff was entitled to maintain summary proceedings to collect the rents, she could give her attorney a lien on the leases as security for services rendered in bringing such proceedings, and, the attorney having asserted his intention to retain the leases under his lien for services, the subsequent payment of the loan would not affect his right to do so.
[Ed. Note. For other cases, see Attorney and Client, Dec. Dig. § 189.*] Ingraham and Houghton, JJ., dissenting.
Appeal from Special Term, New York County.
Action by Marie L. Jackson against Henry M. Erkins and others. From an order directing plaintiff's attorney to surrender certain leases assigned to plaintiff as collateral security, plaintiff and her attorney appeal. Reversed, and motion denied.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
Merle I. St. John, for appellants.
LAUGHLIN, J. The order has been made upon the theory that the indebtedness, as collateral security for which the leases were assigned, has been paid; but the plaintiff and her attorney insist that he has a lien on the securities for moneys advanced and for expenses incurred for his client and for his services as attorney and that until such lien is satisfied they have a right to retain the securities.
On the 13th day of February, 1908, the plaintiff loaned to the defendant Erkins $5,000 on the security of a bond, executed by Erkins, conditioned for the repayment of the money one year from that date, and on the further security of a mortgage on certain vacant lots in the county of Westchester and of a mortgage on a leasehold interest which Erkins had in premises at Twenty-Second street and Avenue A, and an assignment of certain subleases of parts of said premises made by the defendant Erkins and of the rents due and to grow due thereunder. On the 24th day of November, 1908, this action was brought
to foreclose the mortgage given as security for the repayment of the money loaned, on account of a default on the part of Erkins in the payment of taxes upon the premises covered by the leasehold. On the 4th day of December, 1908, the plaintiff, through her attorney, received from Erkins payment in full of the indebtedness secured by the mortgages, and at that time he gave the defendant Erkins a receipt for the money, reciting that it was in full payment of the indebtedness, interest, and costs, and that a satisfaction of the mortgage on the leasehold would be delivered at an early date. At the time the money was loaned Erkins delivered to the plaintiff the lease held by him upon which he gave the mortgage and an assignment in writing of subleases. By this writing Erkins not only assigned the leases made by him to his tenants, but he constituted the plaintiff his attorney in fact "to enter into possession of said premises and in my name or otherwise to collect the rent due under the said leases, and in my name or otherwise to institute legal proceedings to recover the rents due and unpaid, and in my name or otherwise to institute summary proceedings against such of said tenants as may default in the performance of the covenants of his lease, and to relet the premises occupied by such defaulting tenant for the best rent obtainable for the balance of the unexpired term of his lease," and it was recited therein that the assignment was given as collateral security for the faithful performance of the covenants contained in the bond and mortgages, and to become void upon the faithful performance of all of said covenants. In June, 1908, a controversy arose between the parties as to who was entitled to collect the rents. The mortgagee insisted that by virtue of the assignment of the leases she was authorized to collect them, and the mortgagor insisted that her right would only accrue upon a default in the payment of the indebtedness as provided in the bond and mortgages. The plaintiff, acting under said assignment, instituted one dispossess proceeding against a tenant and began five actions for the collection of rent long prior to the commencement of the foreclosure action. In these litigations she made certain disbursements and incurred liability to her attorney for other disbursements and expenses for his services. This proceeding and those actions were pending at the time the mortgage was paid. The lease to Erkins and the subleases made by him, which were assigned to the plaintiff, were in the possession of her attorney for the purpose of instituting such summary proceeding and actions for the recovery of rent.
As we view the assignment, the plaintiff was right in her contention that she was authorized to collect all of the rents, and her rights in that regard did not depend upon a default in the payment of the indebtedness accrued by the bond and mortgages.. Having the right to institute the proceeding and actions for the recovery of the possession of the premises leased and of the rent due, she was authorized to give her attorney a lien thereon as security for the services which he rendered at her instance in bringing such proceeding and actions. The right to the possession of those securities and the right to that lien were not affected by the payment of the mortgage. Before the money was received in payment of the mortgage indebtedness, the attorney
for the plaintiff asserted his intention of retaining these securities by virtue of a lien for his services and disbursements and to indemnify his client against the disbursements which she had incurred and the liability which she had incurred to him in instituting the summary proceeding and the actions for rent. Ordinarily, of course, the payment of an indebtedness releases the collateral; but here there was, if not a duty, at least, a right, to act under the assignment of the leases, and there was an implied obligation on the part of the assignor to reimburse the plaintiff for the expenses necessarily incurred by her in bringing proceedings or actions under the assignment of the leases. Therefore, as we view it, the defendant Erkins was not, at the time the motion was made, entitled to a return of the securities, and the motion should have been denied.
It follows that the order should be reversed, with $10 costs and disbursements, and motion denied, with $10 costs.
CLARKE and SCOTT, JJ., concur.
INGRAHAM, J. (dissenting). I think this order should be affirmed. If the plaintiff had any right to hold these leases or the claims. against the subtenants to secure her for any liability or disbursements. incurred in enforcing the claims against the subtenants, that right should have been asserted before she accepted payment of the mortgage and a satisfaction piece and release given. By receipting in full for the payment of the mortgage, the lien of the mortgage became satisfied, and her right to hold the mortgaged premises, or any part thereof, was terminated.
Nor do I think that, as against the mortgagor, the attorney for the mortgagee acquired a lien upon the mortgaged property for any claim that he might have against the plaintiff for services rendered in the action to recover rent from the sublessees. The plaintiff's attorney could not maintain an action against the respondent for the services rendered on the retainer of the plaintiff to collect these rents. The lien is not here asserted as against the plaintiff, she having by the receipt of the amount due on the mortgage discharged the lien, but as against the mortgagor, who had no relation of any kind with the plaintiff's attorney. The foundation of a lien for professional services must necessarily depend upon an enforceable claim against the person who owns the property upon which a lien is claimed.
I think, therefore, the order was properly granted, and should be affirmed.
HOUGHTON, J., concurs.
DOSCHER v. WYCKOFF et al.
(Supreme Court, Appellate Division, Second Department. April 23, 1909.)
1. WILLS (§ 684*)-CONSTRUCTION-TRUSTS-VALIDITY.
Testator gave his wife the income of his estate, and provided that on her death or remarriage the property should go to his children. He gave all his property to his wife and his brother, who were appointed executors, in trust to pay legacies, with power to sell real estate. Held to create a valid trust under the statute of uses and trusts (1 Rev. St. [1st Ed.] pt. 2, c. 1, tit. 2, § 55, subd. 3), authorizing trustees to receive the rents of land and apply them to the support of any person for life, etc., and the wife was entitled to the profits of the estate until her death or remarriage.
[Ed. Note. For other cases, see Wills, Cent. Dig. § 1615; Dec. Dig. § 684.*]
2. WILLS (8 634*)-CONSTRUCTION-ESTATE DEVISED-VESTED REMAINDER. Testator gave his wife the income of his estate, and provided that on her death or remarriage the property should go to his children and the issue of any deceased child. He gave all his property to his wife and his brother, who were appointed executors, in trust to pay legacies, with power to sell the real estate. Testator died, leaving his wife and a son. Held, that the son took a vested estate in remainder, subject to defeat by his death during the life of the wife, since, while his death, before the wife, leaving issue, was a contingency on which a remainder might vest in his issue, it was not an event on which the vesting in him depended; the provision of the statute of uses and trusts (1 Rev. St. [1st Ed.] pt. 2, c. 1, tit. 2, art. 2, § 60) that every express trust valid in its creation shall vest the whole estate in the trustee, subject only to the execution of the trust, only meaning the entire estate necessary to make the trust effective.
[Ed. Note. For other cases, see Wills, Cent. Dig. § 1488; Dec. Dig. § 634.*]
3. TRUSTS (§ 191*) — SALE OF TRUST PROPERTY - Power of Sale BY TRUSTEE"GENERAL POWER IN TRUST."
Testator gave his wife the income of his estate, and provided that on her death or remarriage the property should go to his children. He gave all the property to his wife and his brother, who were appointed executors, in trust to pay legacies, with power to sell. The land devised was unimproved. The wife and brother qualified. Subsequently the latter died, and the wife, as sole surviving executrix and trustee, conveyed the land in fee; the deed reciting that she executed it by virtue of the power in the will. Held that, as the power of sale was a "general power in trust," within 1 Rev. St. (1st Ed.) pt. 2, c. 1, tit. 2, art. 3, § 94, defining a general power in trust, the sale was valid, since the estate conveyed was not only the estate held by the trustee, but the estate in remainder, over which the trustee as such had no power.
[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 243; Dec. Dig. § 191.*
For other definitions, see Words and Phrases, vol. 4, p. 3076.]
4. TRUSTS (§ 191*)-SALE OF TRUST PROPERTY-VALIDITY.
Where the power of sale given to an executrix and trustee is given for other purposes than for the purposes of the trust created for the executrix and trustee, and other persons will be benefited by the execution of the power of sale, the fact that the executrix and trustee may derive a benefit from the sale will not deprive her of the right to execute the power. For other cases, see Trusts, Cent. Dig. § 243; Dec. Dig. §
[Ed. Note. 191.*]
*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
5. TRUSTS (§ 202*)-SALE oF TRUST PROPERTY-VALIDITY-OBLIGATION OF PUB
Testator gave his wife the income of his estate, and provided that on her death or remarriage the property should go to his children. He gave all his property to his wife and his brother, who were appointed executors, in trust to pay legacies, with power to sell the real estate. The wife, as sole surviving executrix and trustee, conveyed the land in fee. Held that, under 1 Rev. St. (1st Ed.) pt. 2, c. 1, tit. 2, art. 2, § 66, providing that no person who shall in good faith pay money to a trustee shall be responsible for the proper application of the money, etc., the purchaser, to sustain the validity of the sale, was not required to show that he inquired into the necessity or expediency of the sale or the application of the proceeds.
[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 272; Dec. Dig. § 202.*]
6. QUIETING TITLE (§ 52*)-COMPLAINT-Judgment.
The fact that a complaint containing sufficient allegations to sustain the action as one to determine claims to real property under Code Civ. Proc. §§ 1638, 1639, contains other allegations not necessary to such a form of action, and contains a prayer for relief in part inappropriate, does not prevent the court from rendering a judgment in accordance with the requirements of section 1645.
[Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 99; Dec. Dig. § 52.*]
Appeal from Special Term, Kings County.
Action by Claus Doscher against Maria Wyckoff, individually and as surviving executrix and trustee of Henry L. Wyckoff, deceased, and another. From a judgment for plaintiff (113 N. Y. Supp. 655), defendants appeal. Affirmed.
Henry L. Wyckoff died on the 28th day of January, 1879. He was seised of an estate in fee simple in an undivided five-sixteenths of a farm in the then town of New Lots, which afterward became part of the city of Brooklyn. This estate was subject to an outstanding life estate in his mother, Sarah Wyckoff, who was in the actual possession thereof. He left him surviving his widow, the defendant Maria Wyckoff, and one child, the defendant Abraham Vanderveer Wyckoff. He left a will which was duly proved and which provided as follows:
"First. I give to my wife, Maria Wyckoff, in lieu of dower the use and income of all my real and personal property to be paid to her by my executors so long as she shall remain my widow.
"Second. On the death or remarriage of my wife, I give all my property real and personal which I may own or be entitled to or interested in at my decease in equal portions to my children then living and the issue of such as may have died, such issue to take the share the parent would take if living.
"Third. I give and devise all my real and personal estate of whatever nature or kind to my wife, Maria Wyckoff, the executrix and to my brother, Jacob S. Wyckoff, the executor of this my last will and testament hereinafter nominated and appointed, in trust for the payment of my just debts and the legacies hereinbefore specified with full, absolute and complete power and authority to such of them as may qualify and to the survivor of them to grant, sell, convey, mortgage, lease or exchange, all or any part or parts of my real estate, at public or private sale at such time or times and upon such terms and in such manner as to them shall seem meet."
Both Maria Wyckoff and Jacob S. Wyckoff qualified as executors, but no account of their proceedings as such has ever been filed. Jacob S. Wyckoff died in the year 1881. On the 29th of January, 1890, all of the owners of the said farm entered into a contract to sell the same to Edward F. Linton for a price exceeding $200,000. In this contract Maria Wyckoff described herself as the sole surviving executor and trustee under the last will and testament of Henry L. Wyckoff, deceased. About the 1st day of May, 1890, she executed