Annett v. Terry

11 Citing cases

  1. Brownell v. Snyder

    122 App. Div. 246 (N.Y. App. Div. 1907)   Cited 5 times
    In Brownell v. Snyder (122 App. Div. 246), relied upon by the learned court at Special Term (67 Misc. Rep. 267), the liability of a surety on an undertaking given on appeal in an action followed the affirmance of the judgment, and, of course, he could resist liability on the ground of fraud and collusion resulting in the affirmance.

    In a later case it is held that "fraud vitiates a judgment, as well as every contract tainted by it," and such fraud may be shown collaterally by sureties. ( Annett v. Terry, 35 N.Y. 256, 260.) "Fraud and imposition invalidate a judgment as they do all acts, and may be alleged, whenever the party seeks to avail himself of the results of his own fraudulent conduct by setting up the judgment the fruits of his fraud."

  2. Dickerman v. Northern Trust Company

    176 U.S. 181 (1900)   Cited 140 times   2 Legal Analyses
    In Dickerman v. Northern Trust Company, 176 U.S. 181, 20 S. Ct. 311, 314, 44 L. Ed. 423, it appeared that a bondholder had brought suit upon six coupons, and that the action was brought directly or indirectly by the legal firm who were also counsel for the defendant company, and it further appeared that the president of the company, prior to filing the suit, had been in consultation with the attorneys of the trustees about foreclosing the mortgage and taking possession of the property.

    So, also, in cases where a surety attacks a judgment against his principal upon the ground that it was obtained for the purpose of defrauding him, it must be made to appear either that no debt existed against the principal, or that the amount was grossly exaggerated for the purpose of defrauding the surety. Parkhurst v. Sumner, 23 Vt. 538; Annett v. Terry, 35 N.Y. 256; Dougherty's Estate, 9 Watts S. 189; Thompson's Appeal, 57 Penn. St. 175; Willard v. Whitney, 49 Me. 235; Pierce v. Jackson, 6 Mass. 242; Great Falls Mfg. Co. v. Worster, 45 N.H. 110; Berger v. Williams, 4 McLean, 577; Feaster v. Woodfill, 23 Ind. 493. So, too, it has been held that a person may purchase stock in a corporation for the very purpose of bringing a stockholder's suit, and that the law will not inquire into the motive which actuated his purchase. Bloxam v. Met. Railway, L.R. 3 Ch. App. 337; Seaton v. Grant, L.R. 2 Ch. App. 459; Elkins v. Camden Atlantic Railroad, 36 N.J. Eq. 5.

  3. Thomson v. American Surety Co.

    170 N.Y. 109 (N.Y. 1902)   Cited 9 times
    In Thomson v. American Surety Co. (170 N.Y. 109) the surety of a testamentary trustee was held not liable for the funds of the trust estate which were not actually in the hands of the trustee at the time he became surety upon the trustee's official bond, but which had been lost or misappropriated by the trustee while serving as such prior to that time, and the trustee's default and liability to the estate had been previously determined by a judgment against him fixing its amount.

    These are cases involving guardians', administrators' and other bonds, where the duty of the principal, guaranteed by the surety, was to account before a court of competent jurisdiction for the money or property that came to his hands by virtue of the trust. In such cases the surety is bound by the judgment recovered, and no defense is open to him unless he can show fraud or collusion. ( Annett v. Terry, 35 N.Y. 256; Scofield v. Churchill, 72 N.Y. 565.) The additional claim is made by the appellant that even if this judgment is not evidence of the amount of damages to which the plaintiff was entitled by reason of the alleged breach, nevertheless he should recover the costs that were recovered by him in that action.

  4. Treweek v. Howard

    105 Cal. 434 (Cal. 1895)   Cited 22 times

    The sureties upon an executor's bond can impeach and avoid the decree of distribution fraudulently procured by the executor. (Annett v. Terry , 35 N.Y. 259; Douglass v. Howland, 24 Wend. 35; Baggott v. Boulger, 2 Duer, 160; Hayes v. Seaver, 7 Greenl. 237; Tracy v. Goodwin, 5 Allen, 411; Heard v. Lodge, 20 Pick. 58; 32 Am. Dec. 197; Irwin v. Backus , 25 Cal. 219; 85 Am. Dec. 125; McClellan v. Downey , 63 Cal. 522; Schofield v. Churchill , 72 N.Y. 565; Casoni v. Jerome , 58 N.Y. 316; Gerould v. Wilson , 81 N.Y. 578; Harrison v. Clark , 87 N.Y. 576; Chaquette v. Ortet , 60 Cal. 595; Braiden v. Mercer, 44 Ohio St. 339; Brandt on Suretyship, 532.) The jurisdiction of courts of equity to set aside decrees for fraud, particularly applicable to decrees of probate courts.

  5. Douglass v. Ferris

    138 N.Y. 192 (N.Y. 1893)   Cited 42 times
    In Douglass v. Ferris, 138 N.Y. 192, 33 N.E. 1041, 34 Am. St. Rep. 435, the sureties on a guardian's bond were held not to be discharged by reason of a fraudulent settlement.

    Upon principle and authority there cannot, I think, be any doubt that if the guardian had accounted before the surrogate in the usual way, and a decree had been entered, free from fraud, adjudging that he owed the plaintiff a designated sum, that decree would have bound the sureties. This is upon the principle that by their contract they are privy to the proceedings against their principal and when he is concluded they, in the absence of fraud or collusion, are concluded also. ( Douglass v. Howland, 24 Wend. 35; Jackson v. Griswold, 4 Hill, 522; Annett v. Terry, 35 N.Y. 256; Baggott v. Boulger, 2 Duer, 160; Rockfeller v. Donnelly, 8 Cow. 637; Girvin v. Hickman, 21 Hun, 316; Casoni v. Jerome, 58 N.Y. 315; Harrison v. Clark, 87 id. 575; Thayer v. Clark, 48 Barb. 243; S.C. affd., 41 N.Y. 620; 4 Abb. Ct. App. Dec. 391; Herman on Estoppel, etc., 173, 174; Dodge v. St. John, 96 N.Y. 260; M. Church v. Barker, 18 id. 463.) The plaintiff was obliged to bring an action to set aside the decree of the surrogate, which operated to discharge the guardian, and also to set aside the fraudulent transaction upon which this decree was based.

  6. Wright v. Card

    19 A. 709 (R.I. 1890)   Cited 2 times

    We do not think the second ground is tenable. There are cases which hold that even for fraud a judgment cannot be collaterally impeached at law by any person who is a party to it, but the rule does not extend to third persons, who cannot proceed directly to have the judgment set aside. It is always competent for such a person, when the attempt is made in an action at law to charge or affect him by such judgment, to show in the same action by plea or proof that the judgment is void as against him because procured by fraud or collusion. Great Falls Manufacturing Co. v. Worster, 45 N.H. 110; Annett v. Terry, 35 N.Y. 256; Sidensparker v. Sidensparker, 52 Me. 481; 83 Amer. Decis. 527; DeArmond v. Adams, 25 Ind. 455; Downs v. Fuller, 2 Metc. 135; Fermor's Case, 3 Rep. 77. And that the matter of the fourth plea, if well pleaded, may amount to fraud, see Hentig v. Sweet, 27 Kan. 172; Murphy v. Smith, 86 Mo. 333; Bigelow on Fraud, p. 90. We think the first objection is better taken. It is not clear to us that the plea in its specific allegations shows anything more than that the plaintiff took the judgment against Howard after making the agreement set forth, in violation thereof. It is true that the plea avers also that the plaintiff took the judgment after inducing Howard to abscond, but it does not aver that he induced him to abscond for any purpose connected with the suit in replevin, or that Howard left the State by reason of the agreement when but for the agreement he would not have left, and that the plaintiff, knowing this, and with intent to defraud him, took advantage of his absence to procure th

  7. Conner v. Reeves

    103 N.Y. 527 (N.Y. 1886)   Cited 46 times
    In Conner v. Reeves (103 N.Y. 527) an execution had been issued to Connor, then the sheriff of New York, and a bond of indemnity was executed by the plaintiff in the execution and two sureties conditioned to save harmless the sheriff from all liability or judgments that might be recovered against him by reason of selling certain chattels by virtue of the execution.

    But at the same time to hold that a judgment entered by consent of the parties, and without notice to or approval by the sureties, is, in the absence of proof of fraud or collusion, conclusive against them, would open the door to the perpetration of secret frauds and subject sureties to a most hazardous responsibility, and to the discretion and judgment of a third person, which might seriously imperil them. A judgment by default has been held to be covered by an indemnity against judgments. ( Lee v. Clark, 1 Hill, 56; Aberdeen v. Blackmar, 6 id. 324; Annett v. Terry, 35 N.Y. 256.) But where default is made the plaintiff must give proof to entitle him to judgment.

  8. Hood v. Hood

    85 N.Y. 561 (N.Y. 1881)   Cited 28 times
    In Hood v. Hood (85 N.Y. 561) the real estate again was devised to the executors in trust to sell and hold and distribute the proceeds as money.

    The statutes of this State having provided for the cases in which actions may be brought upon the bond of an executor or administrator, and having regulated the prior steps for instituting such actions, the mere fact of so prescribing would seem to deny the right, except upon compliance with the statutory regulations. ( Annett v. Kerr, 2 Rob. 556, 564, and 35 N.Y. 256. ) The bond in question was taken by an officer of limited jurisdiction, in pursuance of special statutory provisions, and it would seem to follow that where the same statutes prescribe the mode of its enforcement, no other can be pursued. The same rules apply to bonds of executors, as to bonds of administrators, for the statute under which the bond in question was taken declares that it shall be the like bond as that of an administrator, and the statutes regulating actions on such bonds, in terms apply to bonds of executors and administrators.

  9. Smith v. Fidelity and Deposit Co. of Maryland

    130 Cal.App. 45 (Cal. Ct. App. 1933)   Cited 12 times
    In Smith v. Fidelity Deposit Co., 130 Cal.App. 45, 56 [ 19 P.2d 1018], the court said: "'It would seem that the agreement came within the terms of the statute, which says that all transactions between the trustee and his beneficiary during the existence of a trust are presumed to be entered into by the latter without sufficient consideration and under undue influence.'"

    We quote from the opinion as follows: "Upon principle and authority there cannot be any doubt that if the guardian had accounted before the Surrogate in the usual way, and a decree had been entered, free from fraud, adjudging that he owed the plaintiff a designated sum, that decree would have bound the sureties. This is upon the principle that by their contract they are privy to the proceedings against their principal, and, when he is concluded, they, in the absence of fraud or collusion, are concluded also. (Citing Douglass v. Howland, 24 Wend. [N.Y.] 35; Jackson v. Griswold, 4 Hill [N.Y.], 522; Annett v. Terry, 35 N.Y. 256; Baggott v. Boulger, 2 Duer [N.Y.], 160; Rockfeller v. Donnelly, 8 Cow. [N.Y.] 637; Girvin v. Hickman, 21 Hun [N.Y.], 316; Casoni v. Jerome, 58 N.Y. 315; Harrison v. Clark, 87 N.Y. 575; Thayer v. Clark, 48 Barb. [N.Y.] 243.)"

  10. Steinert v. Van Aken

    165 App. Div. 206 (N.Y. App. Div. 1914)   Cited 4 times

    The only possible answer to this would be, I think, that the false representations were not material; but it cannot be said that a false representation to one subjecting himself to liability to the extent of $20,000 to the creditors and next of kin that the assets were only $10,000, when they were over $20,000 — which required a bond for $40,000 (See Code Civ. Proc. § 2664) — and that the person making the representation would be entitled to the surplus, which would be only $1,000, is not material as between the persons thus subjected to liability and the person making the representation. Fraud vitiates any contract. ( Annett v. Terry, 35 N.Y. 256; Roessle v. Lancaster, 119 App. Div. 368.) The bond bound the defendants of course in favor of creditors and the next of kin who were not guilty of fraud but not in favor of Wallace who perpetrated the fraud.