(No. 67.) To enforce a claim against husband, and obtain satisfaction out of securities held by wife, arising from a sale of her real estate on which the husband had expended labor and money. SUPREME COURT-DUTCHESS COUNTY. Henry Roe Albro A. Sabine and Mary Jane Sabine his wife. The plaintiff complains of the defendants, and alleges: That, on the 11th day of July, 1856, the plaintiff recovered a judgment in the Supreme Court of the State of New-York, against the defendant, Albro A. Sabine, for the sum of $460.27, which judgment was on said day duly docketed in the office of the clerk of the county of Columbia, which said judgment still remains unpaid and unsatisfied. That afterwards, and before the commencement of this action, the said judgment was duly docketed in the office of the clerk of the county of Dutchess, and an execution was duly issued to the sheriff of said county of Dutchess, which said execution was, before the bringing of this action, returned by said sheriff to the clerk of the county of Columbia, wholly unsatisfied. That nothing has ever been paid or collected upon said judgment, and the whole amount remains due and unpaid. That the said defendant, Albro A. Sabine, hath not any property, or interest in property, not exempt from levy and sale on execution, out of which said judgment can be satisfied, except what is hereinafter alleged to belong to him. That the defendant, Mary Jane Sabine, is the wife of said defendant, Albro A., and was in the month of April, 1855, and said defendants ever since that time lived together as husband and wife. That, on or about the 2d of April, 1855, the defendant, Mary Jane, became vested with title, by purchase from Homer Winchell, to certain real estate, situate in the town of North East, in the county of Dutchess, in the State of New-York, bounded and described as follows: [Describ ing the premises], upon which premises there was, at the time of the said purchase and grant, certain improvements. That, subsequent to said purchase and grant, the said defendant, Albro A., with the knowledge and consent of defendant, Mary Jane, expended large sums of money of his own, and applied a large amount of labor, by himself and his servants, and used and added a large amount of material upon said improvement. That such improvements consisted, in part, of an addition to said house, which addition was of the dimensions of twenty by twenty-four feet, and also other improvements in fences, and by the planting of trees and shrubbery, and by fertilizing the soil and other improvements, amounting in value to the sum of $800, by which the said property was increased in value to that sum. That subsequently, and on or about the 1st day of April, 1856, the said defendant, Mary Jane, sold and conveyed the said premises with all of said improvements to one Leonard A. Chase, and received therefor, in good securities, from said Chase, the sum of $1,400. That the said Mary Jane paid for said property only the sum of $800, and that the increased price received by her for said 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.1 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. 38 (No. 68.) 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.1 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. |