Feil v. Feil

John M. Kellogg, P. J.: Charles P. Feil gave the original mortgages in violation of the plaintiffs’ rights and, after the judgment reforming the deed by establishing the plaintiffs’ life estate in the property, it was his legal duty to pay the interest on the mortgage and to preserve the life estate from suffering by it. The defendant Bennink and Feil’s wife were parties to the action for reformation and knew the facts. The complaint shows that in order to defeat the judgment and to deprive the plaintiffs of their life estate, the three defendants conspired together to foreclose the mortgage, purchase the property by the defendant Feil, he to take the deed in his wife’s name. Upon demurrer a complaint need not be a model. “ It is the general rule, however, that a complaint when challenged for insufficiency is to be liberally construed and that the pleader is to be deemed to have alleged not only the facts set forth but those also to be implied therefrom by reasonable and fair intendment.” (Peterson v. Eighmie, 175 App. Div. 113, 115; Ellsworth v. Agricultural Society, 99 id. 119.) The defendant who owed the debt and was charged with the duty of paying it and protecting the plaintiffs, caused the mortgage to be forcelosed for the purpose of defrauding the life tenants and defeating the judgment of reformation. [842] The mortgage could not have been foreclosed without his default, and the default must be deemed to have been made intentionally, fraudulently and unlawfully. It is a mistake to say that he was doing no wrong. ' He was using the other defendants as his instruments, to their knowledge, to bring about an unjust result. When he caused the mortgage to be foreclosed and purchased the property for himself, he had not made any real progress, for the law would treat the property as still subject to the life estate. • He could not by his voluntary act bring about the foreclosure and buy in the property freed from the life estate. The taking of the deed in his wife’s name and mortgaging it to Bennink did not aid him, as they knew the facts and stand in his shoes. Plaintiffs are not questioning the foreclosure proceedings other than the fact that Feil, after he bid in the property, caused it to be deeded to his wife for him and to be mortgaged to Bennink. The allegation of conspiracy perhaps is not very material; the gravaman of the charge is that the remainderman, the person who gave and who solely was obliged to pay the mortgage and protect the life estate, unlawfully and fraudulently made default and caused it to be foreclosed and bid in the property himself for the sole purpose of defrauding the plaintiffs and evading the judgment of the court. In carrying out the fraudulent purpose, he deeded it to his wife and mortgaged it to Bennink, both of whom knew the facts. The real relief sought by the plaintiffs is not to destroy the foreclosure, but to impress upon the property the life estate. I favor a reversal, with costs, and the direction of a judgment that the property is subject to the plaintiffs’ life estate, with costs, with the privilege to the defendants upon the payment of the costs to withdraw the demurrer and answer within twenty days. All concur, except Woodward, J., dissenting with an opinion, in which Kiley, J., concurs.