Statement of case.

Edward T. Bartlett for the appellant. Equity will consider that done which ought to have been done. (1 Story's Eq., 64; 4 Bouvier's Ins., N., 3729; 1 Fonblanque Eq., b. 1, ch. 6, 8, 9, note; Crary v. Leslie, 3 Wheat., 578.) A lien by judgment is always subordinate to a prior equitable lien, whether of record or not, or executed or not. (Finch v. Earl of Winchelsea, 1 P. Wms., 277; Burgh v. Franciss, 5 Bac. Abr., 41; Coote on Mort., 185; Willard's Eq. Ju., 443, 444; Langton v. Horton, 1 Hare, 549; Whitworth v. Gangain, 3 id., 465; Ellis v. Tousley, 1 Paige, 284; Dwight v. Newell, 3 Comst., 187; Moyer v. Hinman, 3 Kern., 188.) Plaintiff, as assignee of the lessor, had a lien in equity upon the property. (Wright v. Wright, 1 Vesey, 409, 411; Beckley v. Newland, 2 P. Wil., 182; Hobson v. Trevor, 2 id., 191; Langton v. Horton, 1 Hare, 549; Case of Ship Warre, 8 Price, 269, n.; Curtis v. Auber, 1 Jac. & Wal., 506; Mitchell v. Winslow, 2 Story, 639; 2 Story Eq. Ju., § 1231, and cases cited; Cross on Liens, ch. 12, pp. 187, 188, 191, 192; Prebble v. Boghurst, 1 Swanstons, 309; Needham v. Smith, 4 Russell, 318; Randall v. Willis, 5 Vesey, 262, 274, 275; Simond v. Hibbert, 1 Russell & Mylne, 719; also, particularly, Seymour v. Canandaigua and Niagara Falls R. R. Co., 25 Barb., 284; Wood v. Lester, 29 id., 145; Field v. The Mayor of New York, 2 Seld., 179; Stover v. Eyclesheimer, 3 Keyes, 620; 41 N. Y., 374; 1 Keyes, 199.) This equitable interest is sufficient to maintain trover. (Van Bokkelin v. Ingersoll, 5 Wend., 315, and cases cited; Hendricks v. Decker, 35 Barb., 298, and cases cited.)

Lyman Tremain for the respondent. The complaint must state all facts which it is necessary for plaintiff to prove in order to make out his cause of action. (Code, § 142; Freeman v. Fulton Fire Ins. Co., 14 Abb., 398; Rodi v. Rutgers Fire Ins. Co., 6 Bosw., 23; Allen v. Patterson, 7 N. Y., 478; Brady v. Ryder, 10 N. Y., 363.) Otherwise it is demurable. (Code, § 144.) And a demurrer following the language of subdivision six is sufficient. (White v. Brown, 14 How., 282;

Opinion of the Court, per ALLEN, J.

Haine v. Baker, 1 Seld., 357; Spear v. Downing, 34 Barb., 523.) The demurrer does not admit conclusions of law. (Hall v. Bartlett, 9 Barb., 297; City of Buffalo v. Holloway, 7 N. Y., 493; Kinnier v. Kinnier, 45 N. Y., 535.) Where allegations are contradictory, the demurrer only admits those the law adjudges to be true. (Freeman v. Frank, 10 Abb., 370.) The clause in the lease under which plaintiff claims, is not available as a mortgage. (2 Bouv. Law Dict., 485; Hill. on Mort.; Butler v. Miller, 1 N. Y. [1 Com., 496, 500]; Brownell v. Hawkins, 4 Barb., 491, 492; Milliman v. Neher, 20 Barb., 37-40; Buskirk v. Cleveland, 41 Barb., 610, 612.) If construed as a mortgage it is void. (Right v. Buckwell, 2 B. & A., 278; Gilbert on Uses, 116, 117; Jones v. Roe, 3 Term, 88; Williams v. Lucas, 2 Cop. Cases, 160; Williams v. M. Ins. Co., 4 Metc., 306; Otis v. Sill, 7 Barb., 102; Munsell v. Carey, 2 Cush., 50; Bernard v. Eaton, 2 Cush., 296; Garden v. McEwen, 19 N. Y., 123; Van Heusen v. Radcliff, 17 N. Y., 480, 482; Condenean v. Smith, 41 Barb., 404; Crynoweth v. Tenny, 10 Wis., 398, 402; Sum v. Thornton, 50 E. C. L., 379; Head v. Goodwin, 37 Me., 182.) It is also void for uncertainty. (Buskirk v. Cleveland, 42 Barb., 619; Winslow v. M. Ins. Co., 4 Metc., 300, 316; Hunt v. Bullock, 23 Ill., 320.) It cannot be sustained as an equitable lien. (Rogers v. Hosacke exrs., 18 Wend., 318; see cases cited on page 334; Otis v. Sill, 8 Barb., 102; Story's Equity, 1249; William v. Lucas, 2 Cop. Cases, 160.) At best it is but an executory contract, binding on the lessee personally, but not following the property. (See cases above cited; also, Stoker v. Holden, 1 Kern., 152; Pendon v. Jackson, 1 Rus., 1, 26, 44 to 50; Carlton v. Leighton, 3 Meriv., 667-672; Mestaer v. Gillespie, 11 Vesey, 635; Jones v. Richardson, 10 Metc., 381; 2 ed., ch. 438, 443; Cooper v. Douglas, 44 Barb., 409, 419; Winslow v. M. Ins. Co., 4 Metc., 306, 316; Crynoweth v. Tenny, 10 Wis., 398.)

ALLEN, J. The demurrer is general to the complaint, and if in either count a sufficient cause of action is alleged the

Opinion of the Court, per ALLEN, J.

demurrer should have been overruled. The court below take no notice in assigning their reasons for the judgment given of the second cause of action. If the allegations in that count were not as definite and certain as they might or should have been, the remedy was not by demurrer, but by application under section 160 of the Code, that they be made definite and certain by amendment.

It is not intended to intimate that the count is objectionable in this respect. That question is not before us. The nature of the charge is very obvious from the allegations, although they are brief and very general. The plaintiff avers that he had a good and valid lien in writing, upon a large quantity of household furniture of the value of $15,000, to secure the payment of $10,500, which was well known to the defendant, and that the latter in violation of his rights, and without the consent of the plaintiff, sold and converted the same to its own use, by means whereof the plaintiff was deprived of his lien and lost its debt. These facts if properly pleaded, and no objection is taken to the form of the complaint, constitute a good cause of action.

The defendant, without claim or color of title, destroying or converting to its own use chattels in which the plaintiff had a special property, is liable at the suit of the latter for the value of his special property, the damages actually sustained by him.

The complaint does therefore state facts sufficient to constitute a cause of action, and the defendant should have been put to an answer. If the facts alleged as a first cause of action were sufficient to sustain an action, either at law or for equitable relief, the demurrer should have been overruled for that reason. The relief demanded by no means necessarily characterizes the action or limits the plaintiff in respect to the remedy which he may have. If there be no answer, the relief granted cannot exceed that which the plaintiff shall have demanded in his complaint. (Code, § 275.) But the fact that after the allegation of the facts relied upon the plaintiff has demanded judgment for a sum of money by way

Opinion of the Court, per ALLEN, J.

of damages does not preclude the recovery of the same amount upon the same state of facts by way of equitable relief. The relief in the two cases would be precisely the same; the difference would be formal and technical. If every fact necessary to the action is stated, the plaintiff may even, when no answer is put in, have any relief to which the facts entitle him consistent with that demanded in the complaint. (Brady v. Aldrich, 40 N. Y., 504.) The concluding paragraph in the statement of the first cause of action following the allegations as to the title of the plaintiff and interest in the property, and the sale and conversion thereof by the defendant, and the amount received by him for the same, is to the effect that the defendant has in his possession the sum of $10,117.81, avails of the sale of the furniture, which justly belongs to the plaintiff under his lien or title as set forth, and unlawfully withholds the same from the plaintiff, to his great damage. Now, whether the rights of the plaintiff to the money are based upon a legal title to the property sold, upon which an action upon the case for a conversion or for money had and received would lie, or upon an equity entitling the plaintiff to pursue the money as his, in conscience and equity, as against the defendant, is not material. That would only affect the form of the trial; the relief to which he would be entitled in either case would be the same, to wit, a judgment for the money illegally withheld, which is the judgment demanded in the action.

Very likely the action cannot be maintained as a commonlaw action of trover, although it is not necessary to pass upon that question. That action can only be brought by one having the legal title, either as a special or a general owner, one having the legal right to the possession.

In asserting a cause of action at law, the plaintiff must establish a legal right to the possession of the property and show a disturbance of that right, and cannot go beyond or behind the written agreement in which the parties have deliberately set down their agreement and all the terms and conditions which either deemed material. All prior negotia

Opinion of the Court, per ALLEN, J.

tions are merged in the written lease and covenant of the parties, and parol proof of any prior or simultaneous negotiations or agreements of the parties, or of any secret understanding, would be inadmissible. (Lincoln v. Crandell, 21 W. R., 101; La Farge v. Rickert, 5 id., 187; 1 Greenlf. Ev., § 275; Warren v. Wheeler, 8 Met., 97; Pollen v. Le Roy, 30 N. Y., 549; Halliday v. Hart, id., 474.)

The circumstances under which the agreement was made may be referred to in aid of the interpretation of the instru ment, if its terms are ambiguous or uncertain, but the rule excludes all evidence of the language employed by the parties in making the contract, other than as set down in the writing itself. The lease and agreement does not in terms import a present grant or pledge to take effect as the property shall be placed in the hotel and thus come within the description of the grant, but is rather a covenant to create a lien upon it by a proper instrument when it shall have been brought upon the premises, or at least after the lessee and covenanter shall have procured it.

The lessee covenants to pay the rent as it shall become due, and add, "a lien to be given by the said lessees to said lessor to secure the payment thereof on all the furniture that shall be placed in said hotel by said lessees." The parties evidently contemplated some further and other act, or deed, to complete and perfect the security. (Grosvenor v. Allen, Clark, 275; Jackson v. Moncrief, 5 W. R., 26; Andrews v. Durant, 1 Kern., 35; Decker v Furniss, 14 N. Y., 611.)

It was a covenant, however, which a court of equity would specifically perform against the covenanters. As soon as the lessees had furnished the hotel and placed the furniture therein, the lessor could have required of them security in proper form upon the property, and had they refused upon request to give the lien agreed upon, a specific performance would have been decreed. A contract for the sale of chattels will not ordinarily be specifically performed, for the reason that the party can have adequate compensation at law, but the reason does not apply to an agreement for a lien or security SICKELS-VOL. IV.

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