Note on Parties in Partition. Contingent interests. "Every person who by any contingency con- 13 tained in a devise, grant or otherwise, is or may become entitled to a beneficial interest in an undivided share thereof" must be a party, S 1538. See notes in 26 Abb. N. C., 407; 18 id., 297. Executor, etc., and creditor of necessary party. "The executors or administrators and creditors of a deceased person who, if living, should be a party," must be parties and the premises may be sold free from his debts. § 1538 as amended in 1890. If upon the death of one of two or more plaintiffs, or one of two or more defendants pending the action, his interest passed to a third person, the latter may be brought in, § 1588. Creditors. A creditor or other person having a lien or interest which attaches to the entire property may be a party, at plaintiff's election, § 14 1539, and if not is not affected by the judgment. A creditor having a lien on an undivided share or interest may be made a party at plaintiff's election, § 1540, unless the owner of that share is deceased, in which case the creditor must be made a party. Kain v. Larkin, 141 N. Y., 144. 1 KAIN v. LARKIN. New York Court of Appeals, January, 1894. [Reported in 141 N. Y., 144; rev'g 66 Hun, 209, and expl'g 131 N. Y., 300.] 1. Where, upon the trial of the action, the court, without taking any proof, dismissed the complaint upon the ground that it did not state sufficient facts to constitute a cause of action, an appeal presents the single question whether, in law, the complaint was sufficient as a pleading to give the plaintiff a standing before the court sufficient to enable him to make out his case by any proof he could. 2. In such a case, it is sufficiently favorable to the defendants to consider the complaint as before the appellate court upon a general demurrer on the ground of insufficiency. 3. A demurrer for insufficiency cannot be sustained by showing that facts are imperfectly or informally alleged, or that the pleading lacks definiteness and precision, or that material facts are only argumentatively averred. 4. The complaint in a judgment creditor's action held, erroneously dismissed, at the opening of the trial, where it alleged in substance: the rendering of a judgment for plaintiff against one defendant, return of execution thereon unsatisfied, that the judgment is still unpaid, that, after the cause of action accrued, such defendant transferred the property which would be subject to the lien of the judgment to certain co-defendant relatives without consideration, and with intent to hinder, delay and defraud the plaintiff of his claim. Judgment creditor's suit to set aside transfers by the debtor of his property, and to secure satisfaction of an unpaid judg ment. The complaint, after alleging plaintiff's appointment as administratrix of one David Kain, deceased, proceeded: II. That the plaintiff herein in her said representative capacity, in an action in the Supreme Court in Ulster County, duly 2 recovered a judgment in her favor against the defendant, Patrick Larkin, for the sum of $1,518.28, for recovery and costs, less $20, deducted on retaxation of costs, and the judgment roll thereof was duly filed, and the judgment entered and docketed in said Ulster County Clerk's office on the 16th day of October, 1890; that on the 22d day of November, 1890, an execution on said judgment was duly issued and delivered to the sheriff of Kain v. Larkin, 141 N. Y., 144. the county of Ulster, where the said Patrick Larkin then resided 3 and yet resides, and that the said sheriff has duly returned said execution wholly unsatisfied, and that said judgment remains wholly unpaid. III. That the claim and cause of action in said judgment accrued, and the said defendant, Patrick Larkin, became liable therefore to the plaintiff on or about November 21st, 1886. IV. That the said Patrick Larkin at the time said cause of action accrued, and up to the time of the commencement of said action, which was commenced on the 6th day of January, 4 1887, by the service on him of the summons and complaint, was the owner, seized in fee simple, and possessed of real estate of the value of about $3,000, besides other personal property and money in the sum of $1,404.21, deposited in the Ulster County Savings Institution. 5 V. That after the commencement of said action the said Patrick Larkin disposed of his said property as follows, viz.: On the 8th day of January, 1887, he drew out from the said Savings Institution the whole of his money and redeposited $1,200 thereof into the same Savings Institution in the name of Mary Larkin, his wife, then living, who has since died; that on or about January 12th, 1887, said Patrick Larkin executed and acknowledged a mortgage dated back to January 1st, 1887, for the sum of $3,000, given upon said real estate to his brother, Michael Larkin; that, on or about May 1st, 1889, during the pendency of said action, the said Patrick Larkin executed and delivered a quit claim deed of said real estate to his daughter, Maria E. Larkin, a minor, then under the age of twenty-one years, the defendant herein, who resided with him, who was his 6 only heir and next of kin, his aforesaid wife being dead; that thereafter, on or about May 27th, 1889, the said Michael Larkin executed and delivered a satisfaction to said Patrick Larkin of said mortgage; that said conveyances by mortgage and deed were recorded after the said execution in the clerk's office of Ulster County; that an appeal was pending in said action, May 1st, 1889, and had been noticed prior to that date by the plaintiff for argument at General Term, to be held May 7th, 1889, at Albany, N. Y.; that said real estate is described in the Kain v. Larkin, 141 N. Y., 144. 7 deed to said Maria E. Larkin, which is recorded in Books of Deeds, No. 228, page 448, in Ulster County Clerk's office as follows: [here followed a description of the realty] VI. That these conveyances and transfer of said real estate as aforesaid were made to cover up and conceal the right and title of the defendant Patrick Larkin thereto and in fact without any adequate consideration therefor, with intent to hinder, delay and defraud this plaintiff of her just suit, damages and claim against the said Patrick Larkin. VII. That the written consideration stated in the said quit claim deed of said real estate, dated May 1st,. 1889, from Patrick Larkin to his said daughter, Maria E. Larkin, is in these words: "In consideration of natural love and affection and the sum of one dollar;" that there was a further consideration therefor not written in said conveyance, made orally between parties thereto at the delivery of said deed, to the effect, and agreed to, that said Maria E. Larkin should take care of and furnish support for the said Patrick Larkin during his old age. VIII. That said transfer of said real estate by Patrick Larkin to his said daughter, Maria E. Larkin, and the considerations therefor are fraudulent and void as to this plaintiff, and the same were made and had by the said parties thereto with the intent to hinder, delay and defraud this plaintiff of her just suit, demand, damages and claim against said Patrick Larkin, and to protect and save for his own use and benefit his said real estate during his life, and thereafter for the sole use and benefit of his said daughter and only heir, and to prevent and hinder this 10 plaintiff from collecting and receiving from the proceeds of any sale of said property on execution, or otherwise, the amount due her on her said judgment from said Patrick Larkin. WHEREFORE, the plaintiff demands judgment, that the said conveyance by quit claim deed, dated May 1st, 1889, made by the defendant Patrick Larkin to the said Maria E. Larkin of the said real estate described herein, be adjudged and declared fraudulent and void as to this plaintiff, and that a receiver be appointed of all the property of said Patrick Larkin, to whom Kain v. Larkin, 141 N. Y., 144. the defendants will be directed and required to convey said real 11 estate, and that said receiver be directed to sell the said property and to pay out of the proceeds of said property the judgment of the plaintiff aforesaid, and the costs and expenses of this action, and hold the balance subject to the order of the court, and that such other rule, order or relief may be granted to the plaintiff as may be just in the premises, besides the costs of the action. The Special Term of the Supreme Court dismissed the complaint at the opening of the trial, on the ground that it did not allege facts sufficient to constitute a cause of action. The General Term affirmed the judgment. The Court of Appeals reversed the judgment. 12 O'BRIEN, J. At the trial of this action, upon the defendants' motion, the court, without taking any proof, dismissed the complaint upon the ground that it did not state sufficient facts to constitute a cause of action. To this ruling and direction the plaintiff's counsel excepted. The appeal, therefore, presents but a single question, and that is whether, in law, the complaint 13 was sufficient as a pleading to give the plaintiff a standing before the court sufficient to enable her to make out her case by proof if she could. The learned trial judge, as well as the General Term, have apparently reached this conclusion upon the theory that this court, when the case was here on a former appeal, decided that sufficient facts. had not been averred. (Kain v. Larkin, 131 N. Y., 300.) In this respect we think that the learned courts below have misapprehended the legal effect of that decision. A careful reading of the opinion of this 14 court upon that appeal will show that we reversed the judgment then before us, rendered after a full trial, upon the ground that the facts and circumstances disclosed by the record, as it then appeared, did not sustain the findings and conclusion of the court which set aside, as void, the conveyance and transfer attacked, and not because the complaint was defective. It is true, that in discussing the questions then before us, and in pointing out defects in the proof, it was remarked that certain facts had not been proved nor alleged, but it is nowhere |