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App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

WILLIAM H. ELLIS, Respondent, v. POLLY ELLIS COLE and IDA ELLIS HUTCHES, Appellants.

Contract by which a father conveyed land (subject to a mortgage) and a house and lot in which he had a life estate to his children who agreed to pay him the rents and profits thereof during his life— construed as to the father's right to interest on the proceeds of the house and lot which were used to pay the mortgage.

A man who was the owner of a farm incumbered by a $2,000 mortgage held by third parties and who also had a life interest in a house and lot, of which his two children owned the fee, entered into a contract with such children which provided that the father should deed the farm and his interest in the house and lot to the children, and that the children should pay over to the father all the rents and profits from the property so conveyed during his life, after deducting therefrom the interest on the $2,000 mortgage; that, in case the children should sell the house and lot, the moneys arising from the sale should be applied in payment of the $2,000 mortgage or be invested in a bond and mortgage, the interest accruing therefrom to be paid to the father.

Pursuant to such contract the father deeded the property to the children. Thereafter the children sold the house and lot for $1,900, and after adding thereto $100 of their own money, paid the $2,000 mortgage and procured it to be discharged of record.

Held, that the father was not entitled to the interest or income of the $1,900 for which the house and lot were sold.

APPEAL by the defendants, Polly Ellis Cole and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 18th day of June, 1902, upon the decision of the court rendered after a trial at the Yates Trial Term, a jury having been waived.

C. H. Everts, for the appellants.

H. C. Harpending, for the respondent.

WILLIAMS, J.:

The judgment should be reversed and a new trial granted, with costs to the appellants to abide event.

The action is to recover a sum of money alleged to be owing for interest or income from a fund in defendants' hands. The defendants deny that the plaintiff is entitled to such interest or income. The facts, briefly stated, are as follows:

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. The plaintiff is the father of the defendants. The plaintiff prior to the execution of the contract hereinafter referred to, was the owner of the farm therein mentioned. His wife was the owner of the house and lot mentioned in the contract when she died, and at the time the contract was executed the plaintiff had a life estate therein, and the defendants held the fee thereof. There was a $2,000 mortgage upon the farm when the contract was executed held by other persons. March 5, 1894, a contract was made between these parties wherein it was among other things provided, in brief, that the plaintiff should deed the farm and his interest in the house and lot to defendants, and defendants should pay over to the plaintiff all the rent and profits from the property so conveyed, during his life, after deducting therefrom the interest on the $2,000 mortgage, and, in case the defendants should sell the house and lot, the moneys arising from such sale should be applied in payment of the $2,000 mortgage, or be invested in a bond and mortgage, and the interest accruing therefrom should go to the plaintiff. Pursuant to this agreement the property was deeded to the defendants at the time of making the contract.

April 12, 1895, the defendants sold the house and lot for $1,900, and March 28, 1896, applied this $1,900 upon the $2,000 mortgage, and, adding $100 of their own money, fully satisfied such mortgage and procured it to be discharged of record.

The plaintiff, under this condition of things, claims he is entitled to interest or income from this $1,900 for which the place was sold, from April 1, 1898, to April 1, 1902, $114 per year, in all $456, with interest on each payment from the time it became due. And the trial court awarded judgment for this amount and costs.

The theory upon which the decision is based is that under the contract the plaintiff, upon the sale of the house and lot and the receipt by defendants of the $1,900 therefor, was entitled to the interest or income therefrom, although the defendants applied the same in payment and satisfaction of the $2,000 mortgage.

We do not so construe the contract. So long as the defendants retained all the property the plaintiff was entitled to the whole income therefrom, after deducting the interest on the $2,000 mortgage, that is, the interest on the mortgage was to come out of the plaintiff's income from all the property. When the house and lot App. Div.) FOURTH DEPARTMENT, JULY TERM, 1903. were sold, and the mortgage paid from the proceeds of such sale, then the plaintiff was deprived of the income from the house and lot, but the interest on the mortgage did not have to be paid, so that plaintiff's income was the same as before.

The loss of income from the house and lot was offset by not having any interest to pay on the mortgage. This is the fair and reasonable construction of the contract, and we do not see how any other intention can be drawn from it.

These views lead us to reverse the judgment and direct a new trial, with costs to appellants to abide event.

All concurred.

Judgment reversed and new trial granted, with costs to the appellants to abide event.

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Cases

DETERMINED IN THE

SECOND DEPARTMENT

IN THE

APPELLATE DIVISION,

July, 1903.

FRANCES Hart, Respondent, v. JAMES C. Hart and Others,

Appellants, Impleaded with Others.

Partition the action is not pending against a defendant named therein until the

summons is served on him an action for partition may be brought by one who is a party defendant, but not as yet served, inanother partition suit, in which certain of the defendants have been already served the action is not barred by such other suit, although the plaintiff in the action had knowledge thereof.

Jessie B. Crawford brought an action to partition certain premises, and, on Octo

ber 21 and 22, 1901, served the summons therein upon all of the defendants but Charles C. Hart. October twenty-third the summons served on one of the defendants was sent to Frances Hart, who was a daughter of Charles C. Hart. Frances Hart thereupon consulted an attorney, and thereafter, on the same day, Charles C. Hart, with krowledge of the contents of the summons, executed to the said Frances Hart a conveyance of his interest in the premises. On October twenty-fifth Frances Hart, through the attorney before mentioned, filed a summons and complaint and lis pendens in an action to par. tition the premises and recorded the lis pendens. She also served some of the defendants on that day. On October twenty-sixth Jessie B. Crawford served the summons in the action brought by her upon Charles C. Hart. October twenty-eighth Jessie B. Crawford filed her complaint and lis pendens and recorded the latter instrument. November second Frances Hart completed the service of the summons and complaint in the action brought by her. November ninth an ex parte order was made in the action brought by Jessie B. Crawford, bringing in Frances Hart and other persons as parties defendant, and permitting the filing of an amended complaint and lis pendens and the service of a supplemental summons. November thirteenth a summons, issued

in the action brought by Jessie B. Crawford, was served on Frances Hart. Held, that Frances Hart was entitled to maintain the action brought by her;

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903.
That the action brought by Jessie B. Crawford was not pending against the said

Frances Hart or against Charles C. Hart until they, respectively, had been

served with process; That the knowledge possessed by Charles C. Hart at the time he conveyed his

interest in the premises in question to Frances Hart, of the summons in the action brought by Jessie B. Crawford, did not constitute a legal impediment to the conveyance.

APPEAL by the defendants, James C. Hart and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, directing a sale in partition.

Edgar T. Brackett, for the appellants.

Albert C. Aubery, for the respondent.

PER CURIAM:

This is an action for partition. October 21, 1901, Jessie B. Crawford, in an action for partition of the same premises, served a sammons on James C. Hart and Nellie Hart at Saratoga Springs, and on October 22d she similarly served Eunice Hart at Ballston Spa, and attempted but failed to serve Charles C. Hart, the sole remaining defendant. On October 23, 1901, the summons served on Eunice Hart was sent through the mails by a sister of Frances Hart to Frances, who received it on that day. On October 23d Frances Hart handed the summons to an attorney at law, and on that day and thereafter, Charles C. Hart, knowing the contents of the summons, executed and delivered a deed to his daughter, the said Frances Hart, of a one-fourth interest of the premises in question, which deed was recorded on October 23, 1901. On October 25, 1901, Frances Hart, this plaintiff, by the said attorney, filed her summons and complaint and lis pendens in this action, recorded her lis pendens, and served the defendants Charles C. Hart, Kate M. Boyce, George W. Boyce, George Jewell, Mary Colyer and John McCoy. On October 26th Frances Hart also served James C. Hart, Jessie B. Crawford and Frank Crawford between nine A. M. and twelve m., at Saratoga Springs, N. Y., and at one P. M. of that day served Eunice Hart at Ballston Spa. On October 26th,

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