Closius v. Reiners

Bradley, J.:

The action is apparently one at law to recover damages.' It is difficult to see in. the allegations of the complaint any support for it on that theory. It seems to have been contemplated when the judgment was confessed that the plaintiff’s life estate would be sold on the execution. The action is not founded upon any undertaking of the defendant to pay any sum to the plaintiff, but she seeks to charge him upon his representations, which she alleges were false, that he would protect her interest on the sale ; that he ivould see that her life estate would be based on a valuation of $20,000, and that at the sale she would receive a fair market price. Those representations were not false as to any fact existing when they were made, but had relation solely to future events within their contemplation, and the alleged fraud was in the supposed purpose of the defendant not to thus enable the plaintiff to take the benefits which he represented that she would through his instrumentality derive from the sale of her life estate upon the execution issued upon the judgment confessed by her. This state of facts might in equity enable her to obtain relief by way of a vacation of the sale or a redemption of the property from it, or if, pursuant to the sale, the property had passed beyond the defendant’s control, to require him to render an account for it in such manner and to such extent as the equities of the plaintiff, in view of the representations made by the defendant to her, should require, as those alleged tend to show that the relation he assumed to the plaintiff was in some sense fiduciary.

Such, however, is not the purpose of the action, as represented by the complaint, nor does the complaint contain all the allegations requisite to its support for that purpose, nor are all the necessary parties before the court for such, equitable relief. The purchase was made by the defendant and his associate partner or partners of the firm of H. & H. Reiners; and to an action by the plaintiff for relief founded on such facts the defendant’s partners are necessary parties, since they joined with him in the purchase. It may be observed that they made the purchase in satisfaction of a precedent debt due from the plaintiff to the firm, and they cannot, as against the plaintiff, derive any advantage from title taken through the fraudulent conduct of the defendant, not available to him. It is not alleged that the defendant represented or promised that he would purchase the property on the execution sale, or that it would be bid off at such sale for any specific sum, or for an amount sufficient to cover the value of the plaintiff’s life estate on the basis of valuation mentioned in the complaint; but it is alleged that he represented “that he would see that her life estate would be based on that valuation, and that on the sale she would receive á fair market price for her life interest.” • The alleged representation that the plaintiff would derive such benefit from the sale must be deemed to have-been on the assumption, and.subject to the condition, that the purchase would result in title to such life estate, perfected by conveyance made pursuant t-o the sale upon the execution. The sale alone: vested no title in the purchaser, nor is it alleged that any title was-derived from the sale.

It is unnecessary to inquire-whether the inference of such fact, would, as matter of evidence, arise upon proof of the facts alleged.' No such inference is permitted in the pleading; nor can it be assumed that the plaintiff has been divested of the possession ¿nd enjoyment of the property.

It is not important for the purposes of the present case whether,, by the allegation that the sale was not properly advertised, the plaintiff intended to charge that it was insufficient for want of- legality or otherwise, as, in either view, it cannot aid the plaintiff here, however much it may be available as a fact for. equitable relief; and for the purposes of this action, the fact that the defendant exacted and included in the note made by the plaintiff a bonus in excess of the-legal rate of interest is not available. The plaintiff does hot seek to set aside the judgment or the sale of the property founded upon it, but the allegations of her complaint proceed for relief in affirmance of both. As before suggested, the alleged representations-relating to events in contemplation, and being promissory only, constitute no support to the action as brought, and for the relief sough t-by it. (Farrington v. Bullard, 40 Barb. 512, and cases there cited.)

The interlocutory judgment should be reversed and the demurrer-sustained, with leave to the plaintiff to amend her complaint on payment of costs.

All concurred.

Interlocutory judgment reversed and demurrer sustained, with costs of the demurrer and of this appeal, with leave to the plaintiff to amend the complaint on payment of costs within twenty days after service of notice of the entry of this'order.