It is not necessary that the consideration should be paid in specie, but anything representing it, coming from, or in behalf of, the cestui que trust, will be equally available to protect the beneficial interest The cases which declare the unavailability of subsequent payments have reference to such as are made pursuant to arrangements concocted after the conveyance had been made and consummated. Lounsbury v. Purdy, 16 Barb. (N. Y.) 376, affirmed 18 N. Y. 515; Gray v. Jordan, 87 Me. 140, 32 Atl. 793; Gilchrist v. Brown, 165 Pa. 275, 30 Atl. 839; Scawin v. Scawin, 1 Young & Colyer, 65. Or the subsequent payment of the mortgage may be regarded as an enlargement of the trust estate. Perry on Trusts, 205.
Since the complaint has not been attacked for insufficiency at any stage of the proceedings, we must assume that the complaint alleges a cause of action at common law ( Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 178; Buttles v. Smith, 281 N.Y. 226, 237; Homin v. Cleveland Whitehill Co., 281 N.Y. 484, 487) unless section 72 of the Workmen's Compensation Law is held to bar such an action. If the complaint is technically defective, the defect may be cured by amendment, but if, after a decision of the merits of the present appeal to this court, defendant fails to move against the complaint on the ground of its insufficiency, the defect in the pleading may be cured by the evidence upon the trial ( Lounsbury v. Purdy, 18 N.Y. 515; Whittlesey v. Delaney, 73 N.Y. 571; Babbett v. Young, 51 N.Y. 238; Homin v. Cleveland Whitehill Co., supra). Unless barred by constitutional or statutory limitations upon our jurisdiction, I believe the constitutional question raised by the record here should be decided on the merits.
The only title which remained in the trust company was merely formal and was held in trust for the superintendent. ( Matter of Attorney-General v. Atlantic Mutual Life Ins. Co., 100 N.Y. 279; Matter ofAttorney-General v. Continental Life Ins. Co., 28 Hun, 360; affirmed, 93 N.Y. 630; Crane v. O'Connor, 4 Edwards Ch. 409; Lounsbury v. Purdy, 18 N.Y. 515; Matter of Superintendent of Banks, 207 N.Y. 11, 15.) The equitable title to the real estate of the plaintiff having vested in the superintendent of banks at the time that he took possession of the property of the plaintiff, which antedated the recovery of any judgments against the plaintiff now sought to be established as liens upon its real estate, the title in the superintendent was superior to the judgments, which were not liens upon said property under section 1251 of the Code, as the liens therein specified are confined to the real property and chattels real which the judgment debtor has at the time of docketing the judgment.
The payment by the wife of a part of the consideration for the conveyance to the husband does not vest in her any estate in the land. ( Niver v. Crane, 98 N.Y. 40; Lounsbury v. Purdy, 18 N.Y. 515; Garfield v. Hatmaker, 15 N.Y. 477; Sayre v. Townsend, 15 Wend. 649; White v. Carpenter, 2 Paige, 238.) It may be that in cases where an aliquot or some other definite part of the consideration has been advanced, the parties intending that some specific interest shall vest in the person paying it, or in proportion to the sum paid, there might be a resulting trust to that extent. But in this case no such question arises, since the defendant's claim is that she was to have the whole estate in consideration of the sum advanced, and she does not claim that there was any intention to acquire any specific part of the property less than the whole as a tenant in common with her husband.
The objection that there was no demand does not go to the ultimate right of plaintiff but to the present cause of action only, and therefore was not properly raised by a general demurrer, as it could be availed of in abatement only. (Hentsch v. Porter , 10 Cal. 560, 562; 1 Ch. Pl. 446; Coleman v. Woodworth , 28 Cal. 569; Bank v. Howland , 42 Cal. 134.) Demand before suit was proved on the trial, which is all that was required; any defect in alleging a request is cured by the verdict. (Hentsch v. Porter , 10 Cal. 562; Bedell v. Janney, 4 Gilm. 193; Hawley v. Sage , 15 Conn. 52; Estes v. Stokes, 2 Rich. 133; Lounsbury v. Purdy , 18 N.Y. 520, 521; Whittlesey v. Delaney , 73 N.Y. 571; Gould's Pleading, sec. 14, p. 498; Lent v. Padelford , 10 Mass. 230; 6 Am. Dec. 119; 3 Blackst. Com. 394; 2 Strange, 1006; Bogle v. Gordon, 39 Kan. 31; Jones v. Block , 30 Cal. 228.) Where the defendant asserts a claim or right inconsistent with plaintiff's claim, a demand would be unavailing and need not be made, therefore need not be alleged.
" The motion at the close of the evidence was not based upon the facts alleged, but on "the facts proved." Even, therefore, if it was necessary to specifically allege that the money was received by the defendants, as agents, in a fiduciary capacity, advantage could not be taken of the omission for the first time upon appeal. ( Lounsbury v. Purdy, 18 N.Y. 515; Cowing v. Altman, 79 id. 167; Knapp v. Simon, 96 id. 284.) If the point had been raised, a formal amendment might have been allowed. But, assuming that the question was properly raised, we do not think that it called for a reversal of the judgment rendered by the trial court, because it is sufficient to set forth the facts showing that the money was received in a fiduciary capacity, without copying the words of the statute, which would be pleading a mere conclusion of law. It was clearly the intention of the legislature by its last amendment of section 549, to require a plaintiff, intending to arrest the defendant, to predicate his action upon some ground of wrongdoing mentioned in the statute, as a substantive part of the cause of action, so that he could defend himself before a jury and recover costs if such defense was successful.
The estate of a bare trustee of a dry legal title cannot be sold under execution so as to pass the rights of the beneficiary. (Elliott v. Armstrong, 2 Blackf. 208; Bostick v. Keizer, 4 J. J. Marsh. 600; 20 Am. Dec. 237; Hill on Trustees, 269, 273, 275; Lounsbury v. Purdy, 11 Barb. 490; Beaver v. Filson , 8 Pa. St. 334; Osterman v. Baldwin, 6 Wall. 122.) The estate of the trustee ceased when the purposes of the trust ceased, and the beneficiary assumed control and use of the property.
On the argument there was some discussion of the point, whether the objection that there was a variance between the allegation and the evidence offered by the plaintiff, if it had been well founded, could have been made for the first time after the defendant had introduced testimony to rebut the evidence offered by the plaintiff without objection on the part of the former. It would seem that the practice of the courts in New York differs from ours, also, in this respect, 18 N.Y. 515; 20 N.Y. 62. The practice there permitted must be made consistent with the sections of The Code cited above, on the ground that a party, by failing to object to evidence introduced by his adversary, and offering rebutting testimony, waives his right to take advantage of the defect in the (67) pleadings at a later stage in the trial.
(1 R.S. 728, ยงยง 51, 53.) We do not see that this statute has any application to the case in hand. It does not appear that the testator consented to an unconditional and absolute conveyance to his son, nor but that he supposed the purpose or "convenience" to be served would be expressed in it ( Lounsbury v. Purdy, 18 N.Y. 515), and no presumption can be indulged in to support a defense which in any view is without merit, for the defendant's apprehension that it may hereafter be vexed for the same money by John Crosby Brown, the party moving in the reduction proceedings, is not well founded. He paid no money; he is one of the parties plaintiff here, suing in the right of his testator, and rests his case upon allegations wholly inconsistent with any personal claim.
Accordingly the interpretation put upon these clauses in the courts of New York, where they are the same, is that such defects as would be remediable by amendment that does not change substantially the claim or defense, will not sustain an application to dismiss the action. Loundsbury v. Purdy, 18 N.Y. 515. In Hoffheimer v. Campbell, 59 N.Y. 269, Chief Justice Church uses this language: "If the objection had been taken at the trial the complaint might have been amended or the additional facts supplied. It is a general rule in the trial of actions that defects which, if pointed out, may have been supplied or avoided, will not be assailable on the appeal."