country; and when the delicate business of the guardian required him to exercise his best judgment in the situation in which he was placed. There is no suggestion that the guardian in any manner profited out of this business. It does appear that portions of this money were used to relieve the real estate of the infant from incumbrances, taxes, interest, and charges. There was not an accounting by the guardian before the supreme court in either proceeding, nor is there any suggestion but what the guardian is responsible, and his bond amply sufficient to cover any losses that may come to this infant on account of mismanagement by the guardian of his property or any loss growing out of his negligence. The conclusion of the supreme court was that in equity the plaintiff's land should be charged with this debt, and, in the absence of fraud, that decision was res adjudicata and conclusive, and cannot be interfered with in this action. Actual fraud is not claimed, but from the transaction constructive fraud is alleged, because the court decided wrong upon a question of fact. This is not sufficient, even on a bill for review. Webb v. Pell, 3 Paige, 368. Judge Andrews said in Hyland v. Baxter, 98 N. Y. 614:

The principle of res adjudicata supports the conclusiveness of a judgment when the same matter is subsequently called in question between the parties in a collateral action, whether the question was rightly or wrongly decided, on the principle of quieting contentions and securing the orderly administration of justice."

In Ross v. Wood, 70 N. Y. 10, 11, Judge Allen said:

"The fraud which will justify equitable interference in setting aside judgments and decrees must be actual and positive, and not merely constructive. It must be that which occurs in the very concoction or procuring of the judgment or decree, and something not known to the opposite party at the time, and for not knowing which he is not chargeable with negligence."

And again he said at page 11:

"Equity will not take cognizance on the same ground of the very point of which another court of competent authority in the case has considered and decided.”

And again:

"And the rule should not be relaxed to retry questions deliberately tried and

adjudicated by courts of equity having concurrent jurisdiction of the subjectmatter."

Section 2358, Code Civ. Proc., provides:

"A mortgage *

串 made in good faith as prescribed in this title upon has the same validity and

an application in behalf of the infant

**

effect as if executed by the person in whose behalf it was executed and as if the infant was of full age."

The rule referred to is sustained by the following cases: Smith v. Nelson, 62 N. Y. 286; Stillwell v. Carpenter, 59 N. Y. 423; Ward v. Town of Southfield, 102 N. Y. 287, 6 N. E. 660; Mayor, etc., v. Brady, 115 N. Y. 599, 22 N. E. 237, and cases cited.

It is a principle well established in equity jurisprudence that a trus tee (and it is held that a guardian is such) who, acting in good faith, makes expenditures of the funds of the cestui que trust, for the benefit of the property of the cestui que trust, or to pay off incumbrances or taxes upon the property which, if not paid, might consume the prop

51 N.Y.S.--3

and 85 New York State Reporter.

erty incumbered, or if he does any act in advance of an order of the court which the court would have originally directed, the transaction will be sustained as in the interest of the cestui que trust. Noyes v. Blakeman, 6 N. Y. 567; New v. Nicoll, 73 N. Y. 127, 131. At the latter page the court says:

"When a trustee is authorized to make an expenditure, and he has no trust funds, and the expenditure is necessary for the protection, reparation, or safety of the trust estate, and he is not willing to make himself personally liable, he may, by express agreement, make the expenditure a charge upon the trust estate. In such a case he could, himself, advance the money to make the expenditure, and he would have a lien upon the trust estate, and he can by express contract transfer this lien to any other party who may, upon the faith of the trust estate, make the expenditure."

This the guardian of the plaintiff attempted to do through his arrangement with the bank.

These propositions are amply sustained by Randall v. Dusenbury, 39 N. Y. Super. Ct. 174, affirmed 63 N. Y. 645, and by Perry, Trusts, § 476, where that author says:

"But there are circumstances where a trustee must exercise the discretionary powers of an absolute owner; otherwise great loss might happen to the estate. The exigencies of the moment may demand immediate action. The cestui que trust may be numerous or scattered or under disability. The alternative of applying to the court may be attended with considerable or disproportionate expense, and perhaps delay, so that the opportunity is gone and lost forever. It is therefore evident that it is for the interest of the cestui que trust that the trustee should have a reasonably discretionary power, to be exercised in emergencies, though no such power is given in the instrument of trust. And so it is a rule of equity that a trustee may safely do that without a decree of the court which the court, on a case-made, would order or decree him to do." As to whether the plaintiff (an infant) was bound by the act of his guardian, see Thompson v. Railway Co., 168 U. S. 451, 18 Sup. Ct. 121. It is not necessary to consider whether there could be a recovery in a legal action brought by the bank against the plaintiff upon the note that evidenced the debt due to the bank. It is sufficient, for the purposes of the proceeding that is assailed in this action, that, under the circumstances, there was an equitable obligation from the plaintiff to reimburse the bank for its advances at the request of his guardian in the business of the plaintiff. At least, that question was fairly before the supreme court in that proceeding, and its determination should not be overthrown in this collateral action. The provisions of the Code are broad enough to permit the mortgaging of the plaintiff's real estate to meet his equitable obligations. If, as between him and his guardian, he has been wronged in the proceeding, his redress must be against him in an appropriate proceeding. The cases cited by the learned counsel for the respondent do not aid us. Bank v. Ritchie, 8 Pet. 128, there was a bill of review to set aside a conveyance made in a proceeding in chancery to sell infant's real estate under the laws of Maryland. The bill of review was under the chancery practice, and not a collateral proceeding. A bill of review is in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a decree made upon a former bill. which decree has been signed and enrolled. 2 Barb. Ch. Prac. 90, and cases cited. But there were radical errors in that case apparent upon

the face of the decree. A guardian ad litem had been appointed on motion of plaintiff's counsel without bringing the minors into court. The insufficiency of the personal estate was not proved, and the guardian simply put in an answer which was not under oath, admitting the petition. In Ellwood v. Northrup, 106 N. Y. 172, 12 N. E. 590, there was no reference to a referee to inquire into the merits of the application as required by statute, nor was the court informed as to the value and situation of the land, the reason of the sale, the name of the intended purchaser, the price to be paid, and other jurisdictional defects. In Re Valentine, 72 N. Y. 184, there was no reference as required by the statute, and there was no hearing of the parties interested, and no report to the court. It is important to the permanence and security of judicial proceedings that they should be sustained when the court has acted within its jurisdiction, and not permit other actions to assail and destroy those proceedings, except in a clear case and for grave reasons. We are satisfied that the supreme court, in directing the mortgaging of the plaintiff's property, acted within its jurisdiction, and that the decision of the trial court which we are now reviewing was erroneous. The courts in this and in our sister states have, with the greatest strictness, sustained proceedings within the jurisdiction of the court from collateral attacks. In addition to the cases cited, we refer to the following: In Bellamy v. Thornton (Ala.) 15 South. 831, it was held that where a guardian uses his own funds to support his wards, under such circumstances that an order for the sale of their lands would have been granted for such purposes if it had been applied for in advance, a sale of sufficient of such real estate to reimburse him will be ordered. And it was held in Williams v. Pollard (Tex. Civ. App.) 28 S. W. 1020, that where a ward's land is sold on a proper petition to the probate court, and under its decree, it will be presumed the necessary evidence was introduced. In Daughtry v. Thweatt (Ala.) 16 South. 920, it was held that a guardian's sale of land after the court had jurisdiction is not void on collateral attack, on the ground that the order of sale was made without notice to the ward, etc. And in Myers v. McGavock (Neb.) 58 N. W. 522, it was held that a decree of sale could not be attacked collaterally, on the ground that the guardian's appointment was not properly shown, or that notice of the order of confirmation of sale was not properly given. And see, also, Decker v. Fessler (Ind. Sup.) 44 N. E. 657, and Eliason v. Bronnenburg (Ind. Sup.) 46 N. E. 582.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(28 App. Div. 292.)

and 85 New York State Reporter.

ESMOND v. SEELEY et al.

(Supreme Court, Appellate Division, First Department. April 15, 1898.)

1. DIRECTING Verdict.

Plaintiff effected a sale to the defendants, for $100,000, of certain real property owned by one M., and believed to be valuable for its mineral products. He then received from M. an order on defendants to pay plaintiff $10,000, on account of the purchase price, which order they accepted. In an action to recover thereon, the defense was that the actual agreement as to the $10,000 contemplated no cash payment, but merely a credit of the amount to plaintiff's account in a business to be established by the parties on the land. Held, that the evidence was so clear and convincing that no reasonable mind could come to any other conclusion than that the defense was fully established, and that, therefore, the direction of a verdict for defendants was proper.

2. CONTRACT-CONSIDERATION.

It also clearly appeared that while plaintiff represented to defendants, in negotiating the sale, that he was acting as a partner with them, or at least as their agent to buy the land, and that his only interest was an agreed share in the business to be established by him and them, he was in fact representing the owner, under an agreement for a 10 per cent. commission. Held that, as they were entitled to regard the $10,000 as an asset of the partnership, an agreement to pay it to plaintiff, even if made, would have been without consideration.

Appeal from trial term.

Action by Ernest R. Esmond against George H. Seeley and Nathan Seeley. From a judgment on a verdict directed by the court, plaintiff appeals. Affirmed.

The complaint, which was verified on May 27, 1894, alleges that in May, 1888, the plaintiff negotiated for one Mallory a sale to the defendants, who were copartners, of a tract of land in Mystic, Conn., for the sum of $100,000; that the said Mallory agreed to pay him for such services the sum of $10,000, and paid the same by giving to the plaintiff a written order for said sum of $10,000, directed to the defendants, and thereby required them to pay the plaintiff that sum, and deduct it from the purchase price of the premises; that the defendants duly accepted the said order in writing, and agreed to pay the plaintiff the said sum, part in cash, and the balance in four annual payments; and that no part thereof has been paid except the sum of $450. The defendants, by their answer, admit that the plaintiff called the defendants' attention to the land, and undertook to act for them in the transaction, and that they agreed to purchase it for $100,000; that, before undertaking to make the purchase, the plaintiff agreed to act as agent for Mallory in the sale of the land; that for his services in effecting such sale Mallory was to pay him the sum of $10,000 out of the purchase price, and that on the day on which the contract for the purchase was signed Mallory gave the plaintiff a written order for that sum addressed to the defendants, requesting them to pay it to the plaintiff, and deduct the same from the purchase price of the premises. They deny that at the time of the purchase. or at any time prior thereto, the defendants had any notice or knowledge that the plaintiff had undertaken to act for or as agent of Mallory, or that in soliciting them to purchase he was acting in the interest or as the agent of Mallory, or that he was to receive any compensation from him; and they aver that they then understood and believed that the plaintiff was acting in respect to such purchase sclely for himself and for them. "They deny that they ever agreed to pay the same, or any part thereof, except by applying the same in part payment for a share or interest which the plaintiff was to have in the business for which they purchased said premises, as hereinafter set forth." They further allege that the plaintiff, concealing the fact from them that he had undertaken to act for or as the agent of Mallory, and that Mallory had agreed to allow and pay him a commission, represented that he had an option good for 90 days for the pur

chase of the property at the price of $100,000, and that it could not be purchased for less; that the property was very valuable; that large profits could be realized, developing and working certain mineral deposits found therein, and marketing the product; that he solicited them to furnish the funds and execute the obligations necessary to buy the property, allow him an interest in the purchase and a share in the anticipated profits, and consent to his being employed to develop and work the property; that, believing the statements and representations made by the plaintiff, they agreed to furnish the money and obligations necessary to purchase the property, and that it should be worked under the management of the plaintiff, and for his and their joint benefit; that he should receive one-fourth of the profits, and they the other three-fourths, and that the plaintiff should be allowed to draw from the funds of the business a stipulated sum per annum in anticipation of his share of the profits; that, in pursuance of this arrangement, the plaintiff proceeded and conducted the negotations which led up to the purchase of the property; that after the execution of the contract, and before the title passed, the plaintiff informed them that he was to receive out of the purchase price the sum of $10,000 as a commission allowed him by Mallory for services in effecting a sale of the property; that they thereupon promptly proposed to rescind their agreement to allow the plaintiff an interest in the purchase and in the profits of the business, and notified him that he could not receive such commission and also have such interest, and that he must choose between the two; that it was finally agreed that the plaintiff should forego the payment of such commissions in cash, but should receive credit therefor in the books of the business as a contribution by him to the capital account, and that the same should be allowed as a payment on account for his one-fourth interest in the business; that thereupon, in pursuance of said agreement, the plaintiff surrendered the order to the defendants, and upon the opening of the books of the business, which was conducted under the name of the "Lantern Hill Silex Works," the plaintiff received credit therein for said sum of $10,000, in accordance with said agreement. Testimony in support of this defense was given, and at the end of the case a motion made for the direction of a verdict in the defendants' favor was granted, and from the judgment thereupon entered this appeal is taken.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

P. A. Eckerson, for appellant.

Howard Horton, for respondents.

O'BRIEN, J. The first question presented is as to whether the plaintiff's motion for judgment upon the pleadings, made at the opening of the case, should have been granted. In support of such motion, the cases of Fleischman v. Stern, 90 N. Y. 110; Beard v. Tilghman, 66 Hun, 16, 20 N. Y. Supp. 736; and Douglass v. Insurance Co., 138 N. Y. 209, 33 N. E. 938,-were urged upon the court below, and are brought to our attention, as authority for the rule that an affirmative defense, though inconsistent with the allegations of the complaint, when not coupled with or accompanied by a denial of such allegations, raises no issue. While not dissenting from this statement of the rule when applied to the construction of pleadings, we think it has no application to the case at bar; for it will be noticed that the material averment in the complaint constituting the right of action against the defendants was that of nonpayment, and that this is expressly controverted in the answer and payment pleaded. The complaint alleged that the $10,000 "should be paid out of the purchase price in equal installments by the defendants," and that the defendants agreed to pay the same "as follows, viz. $2,000 cash down, and the balance in four annual equal payments." But the answer denies that the payment