Schenck v. Furst ( 1910 )

Miller, J.:

The only serious question in this case is whether there is a misjoinder of causes of action. The plaintiff Bemsen Schenck, as heir at law of Minnie Ten Eyck Schenck, brings this action to partition real property of which she died seized and possessed. She left a will by the terms of which she devised and bequeathed all her property to her husband, Bemsen Schenck. She was survived by said husband and by three sons — the plaintiff, Bemsen Schenck, Jr., Beginald H. Schenck and Bemsen Langdon Schenck; two of them, the plaintiff and Bemsen Langdon Schenck, were born after the will was made, and were neither mentioned in the will nor provided for by it, or by any settlement. The said Bemsen Langdon Schenck died, leaving the plaintiff and said Beginald IT. Schenck his only heirs at law. The husband, Bemsen Schenck, undertook to convey the property to said Bobert Boyd. The latter conveyed to Elise Boyd, and she conveyed to Iiermine Furst and took back a mortgage for $24,000, and iiermine Furst conveyed to Alfred Furst. So that, upon the plaintiff’s showing, he is entitled’ to an undivided three-sixths, subject to the inchoate right of dower of his wife; the defendant Reginald H. Schenck is entitled to an undivided one-sixth,-subject to the inchoate right of dower of his wife, and the defendant Alfred Furst is entitled to an undivided two-sixths, subject to the mortgage hereinbefore referred to, and one other, and to the inchoate right of dower of his wife. The plaintiffs allege that the said Robert Boyd and the defendants Elise Boyd, Hermine Furst and Alfred Furst, each during stated terms, collected and have retained all the rents, issues and profits of the premises sought to be partitioned; and the plaintiffs ask that Elise Boyd, individually and as administratrix of Robert Boyd, Hermine Furst and Alfred Furst be required to account.

The appellant asserts that it is improper to join an action for rents against a former owner of an undivided share with an action to partition the real property. Section 1589 of the Code of Civil Procedure provides: “Nothing contained in this article prevents the court from adjusting, in the interlocutory or final judgment, or otherwise, as the case requires, the rights of one or more of the parties, as against any other party or parties, by reason of the receipt, by the latter, of more than his or their proper proportion of the rents or profits of a share, or part of a share.” That section plainly contemplates that there may be an adjustment of rents, even though all the parties are not interested in the question. Elise Boyd, individually, Hermine Furst and Alfred Furst were neces-' sary parties; and it is, therefore, unquestioned that the plaintiff could properly call them, or any one of them, to account in this action for rents collected. But it is claimed that Elise Boyd, as administratrix of Robert Boyd, is neither a necessary nor a’ proper party; that the cause of action against her for rents collected by her intestate is independent of the action to partition the property, and that there is, therefore, a misjoinder.

At first blush there seems to be force in the appellant’s contention. Section 484 of the Code of Civil Procedure provides: “ The plaintiff may unite in the same complaint, two-or more causes of action, whether they are such as were- formerly denominated legal or equitable, or both, where they are brought to recover as follows: * * * 9'. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. -x- * -x- But ^ must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section ; that they are consistent with each other ; and, except as otherwise prescribed by law, that they affect all the parties to the action ; and it must appear upon the face of the complaint, that they do not require different places of trial.” The subject of the action in this case is the real property, and the claim for rent certainly arises out of a transaction connected with that subject. The plaintiff’s right to maintain an action to partition the real property, as well as his right to maintain an action to compel Elise Boyd, as administratrix of Robert Boyd, to account for the rents collected by the latter, depends upon whether he was born after 'the making of the will of Minnie Ten Eyck Schenck and whether he was mentioned in said will or in any manner provided for in it or by any settlement. The defendants are all interested in that question. Indeed, that is the important question in the case which will determine the rights of all.

The statute should be so construed as to prevent multiplicity of • suits whenever such a construction is permissible. We think that this case_ plainly falls within section 484 of the Code of Civil Procedure, and that there was no misjoinder. We have considered, but do not deem it necessary to discuss herein, the other points made by the appellant'.

The judgment should be affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment affirmed, with costs', with leave to defendant to withdraw demurrer and to answer on payment of costs.