Green's Administrator v. Green

Elliott, J.

It is insisted by the appellant that the court below erred in overruling the demurrers to the second and fourth paragraphs of the answer. These rulings present the only questions in the case.

The second paragraph of the answer is clearly bach The conveyance of the land and transfer of the personal property by John to George Green, and the agreement of the latter to the former, are pai-ts of a single transaction, and, taken together, make George Green the trustee of an ex *280 press trust. He is given the use of the property, real and personal, for the period of ten years, for the support and «education of his brothers Emery and Allen, and. for the ■support of his sisters Martha and Eliza, so far as may be necessary in addition to their labor, and at the expiration of the ten years the real estate and the proceeds of the personal property are required to be equally divided between said George, the brothers and sisters named, and Marvin Green, being one-sixth of the whole to each.

The suit referred to in the second paragraph of the answer, it is alleged, was instituted by Henry and Amos Green, who are also sons of said John Green, but were not provided for in said trust. The suit was not prosecuted to final judgment, and the trust was not set aside. The answer alleges that the appellant compromised it with said Henry and Amos, by purchasing the interest claimed by them in the real estate, and by surrendering up the personal property to the administrator of John Green. In other words, upon a claim being made by Henry and Amos that the conveyances were void, because their father was of unsound mind when he executed them, George, the trustee, purchased the interest claimed by them in the land, and surrendered the personal property to the administrator, but still holds on to the trust and retains the possession, under it, of the whole of the real estate. This he cannot do, and at the same time refuse any aid in the support of the brothers and sisters entitled thereto under the agreement. The answer under consideration claims that, by reason of the facts alleged, there is an entire failure of the consideration for the agreement, and it is pleaded in bar of the action; but it cannot be said that there is an entire failure of the consideration whilst he retains the possession and use of the land under the trust.

It may be that if Allen’s guardian had received his distributive share of the proceeds of the personal property, equity would require that the interest of it should have been applied to Allen’s support, and to that extent relieve *281 the trustee. But this question is not before us, and therefore we decide nothing in reference to it. Nor do we now hold that the fact of the surrender of the personal property td the administrator may not be set up as a partial defense to the action.

We simply decide that the paragraph does not show a -full defense in bar of the action. We decide nothing more.

We think the fourth paragraph is good. The appellee was only bound, by the terms of the trust, to furnish whatever might be necessary for Allen’s suppoz’t, &c., over the pz’oduct of his own labor; and the agz’eement evidently conteznplates that the children named should live with the appellee, make his house, on the premises, their homes, and there Z’eceive the necessary aid in their support; and the ' guardian could not remove Allen from the homestead and care of the appellee, and against his will, and charge the latter with his support elsewhere. It is alleged in the answer that the appellee was ready and willing to support Allen as required by the agreement, at his own house on the premises, but that he was removed therefrom by the guardian, against the will and without the consent of the appellee. If these allegations are true, as the demurrer admits them to be, the appellee was absolved from the obligation to support Allen during the time he remained away.

For the error of the court in overruling the demurrer to the second paragraph of the answer, the judgment is reversed, with costs, and the cause remanded, with directions to the court below to sustain the demurrer to the second paragraph of the answer and for further proceedings.

A demurrer to the coznplaint was overruled. The appellee assigned this ruling as a cross error, which was overlooked in preparing the foregoing opinion. The attention of the court is called to the omission in a petition for a rehearing on that account.

The causes for demurz’er wez-e stated to be:

“First. That the complaint does not state facts sufficient to constitute a cause of action.

D. JE. Palmer, for appellant. J. A. Woodhull and W Cr. Croxton, for appellee.

“Second. That the facts stated do not entitle the plaintiff to a foreclosure of the mortgage.

“Third. That there is a defect of parties defendants; that the other parties interested in the trust and mortgage should have been made parties defendants.”

The complaint is clearly sufficient to entitle the plaintiff below to a personal judgment, which is a sufficient answer to the first cause of demurrer.

As the complaint contains but a single paragraph, and is sufficient to support a personal judgment against the defendant, the objection to that part of it claiming a foreclosure of the mortgage could only be properly raised by a motion to strike it out, for the reason that in such cases a demurrer cannot be filed to a part of the paragraph. But we think, if the facts alleged in the complaint be true, that they are sufficient to entitle the plaintiff to a foreclosure of the mortgage. Such foreclosure, however, would not authorize such a sale of the land as would affect the rights and interest of the other parties interested in the trust.

The defendant is one of the final beneficiaries of the trusty and that interest, at least, is liable to be sold on a foreclosure of the mortgage.

The other beneficiaries could not be prejudiced in their rights by such a foreclosurey and hence were not necessary parties.

The petition for a rehearing is overruled.