GOODRICH, P. J. The action is brought for the foreclosure of a mechanic’s lien against premises formerly owned by the defendant Thomas B. King, and thereafter conveyed by him to one H. C. Bailey, who conveyed them to the defendant Mary T. C. King, the wife of Thomas. The demurrers raise the question whether Bailey is a necessary party. The primary object of a suit of this character is to enforce a lien against the premises. All persons having an interest therein, and only such, are necessary parties.
The complaint alleges that, after the plaintiff’s work was performed, the defendants, with the fraudulent intent to embarrass, hinder, and delay the plaintiff in the collection of the money due to her, conveyed the premises to Bailey, and that he on the same day reconveyed them to the wife, and that such conveyances are fraudulent and void as against the plaintiff, and constitute no bar or defense to her lien.
The prayer for judgment is that the plaintiff be adjudged to have a valid lien on the premises, and that the same be sold, and, if it shall be adjudged that the plaintiff' has no lien, that she shall have a judgment against the defendants personally. As the demurrers are to the entire complaint, they cannot be sustained, provided there is any cause of action in the complaint against either of the defendants.
There is such a cause of action as against the husband, even if there is no lien upon 697 the premises, as the statute in express terms provides that in such an action, if the plaintiff fail to establish a valid lien, he may nevertheless recover a judgment against the parties for such sums as may appear to be due to Mm, and which he might recover in an action upon a contract against such party. 3 Rev. St. (9th Ed.) p. 2643, § 15.
The Code of Civil Procedure (section 447) provides that any person may be made defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party for the complete determination or settlement. of a question involved therein. The question is not whether a person charged with a fraud resulting in injury to the plaintiff, and against whom a judgment is demanded, must be made a party; nor whether such a person could not, on his motion, be made a party to protect himself.
The question is simply whether Bailey has, or claims to have, any interest in the controversy, or in a personal judgment against either of the defendants. It is clear that as he'has devested himself of the title by his conveyance to the wife, and no personal claim is made against him, he cannot be said to have any interest in the premises, and the controversy is solely whether the plaintiff has a lien on them.
The complaint does not specifically allege that Bailey was guilty of fraud in the conveyance to the wife, although it does allege that the conveyances were made without consideration, and are fraudulent and void as against the plaintiff. The learned justice at special term sustained the demurrers on the authority of Martin v. Walker, 12 Hun, 46, and Bank v. Yuengling, 58 Hun, 474, 12 N. Y. Supp. 762.
As these cases are clearly distinguished in the concurring opinion of Mr. Justice GULLEY, I do not consider it needful to refer to them. The interlocutory judgments should be reversed, and judgments directed for the plaintiff on the demurrers, with costs, with leave to the defendants to withdraw demurrers and serve answers on payment of the costs of one demurrer and of this appeal. All concur.
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