Angell v. Rosenbury

Christian cy J.:

Rosenbury, the plaintiff below, sued Angelí in an action of trespass, for taking and carrying away certain goods* Rosenbury claimed title under an assignment made to him by one Charles A. Wilbur, June 25th, 1855, ostensibly for the benefit of creditors. Angelí, who was sheriff of Livingston county, had seized the .goods under several writs of attachment at the suit of Wilbur’s creditors. Wilbur, the assignor, appears to have been a merchant doing business at Howell, Livingston county, Michigan, for some time before the assignment, but his stock having run down in December, 1854, to about one hundred and fifty dollars in value, he then thought proper to replenish it by sending his clerk to New York and making purchases, through his agency, to the amount of about six thousand dollars, on six months credit; on which the clerk, who made the purchases, and testifies to them, is not aware that any thing had been paid at the time of the assignment.

Rosenbury, the assignee, was the brother-in-law of Wilbur, residing in Penn Yan, New York, where Wilbur had also resided till 1846 ; and Wilbur says Rosenbury had resided there for fifteen or twenty years, and he 'had known him for that period. His testimony shows an intimate acquaintance and considerable business transactions with him for a considerable portion of that time. Rosenbury had come out, in November or_ December, 1854, and spent the winter at Howell, and left in March or April, 1855; not having, so far as Wilbur knows, any business at that place. He however appears to have taken a friendly interest in Wilbur’s affairs, as we find him during the winter urging one of the witnesses to lend Wilbur more money, saying he was perfectly good, and not, owing much. About the time the six thousand dollars must have become due for [the December purchases, and three or four days before this assignment was executed, Wilbur, ¡according to his own account, was on his way to Detroit to get an assignment prepared, when he unexpectedly, as be says, met Rosenbury on the road in the stage, on the way to Howell, as it would seem. Wilbur went on to Detroit, and seems to have got an assignment prepared; as he says, after his return from Detroit, he “had a new assignment ” — the present one — drawn by Mr. Whipple, which was executed June 25th, 1855.

Rosenbury is made a preferred creditor in the assignment, the amount not stated, but stated to be “for notes and accounts not liquidated,” though it appears from the testimony of Wilbur, who was sworn in his behalf, that Rosenbury had no claim except certain notes which he says amounted tó $'1000 or $8000, perhaps more. These notes, or what were claimed by plaintiff to be such — as subsequently produced under a notice for that purpose from the defendant below — were four, of one thousand dollars each, dated July 19th, 1845, payable to one Glover or bearer, in one, two, three and four years respectively, with annual interest, and one note for seven hundred and fifty dollars, given to Rosenbury March 9th, 1842, payable on demand. Against these notes Wilbur admits he had a large offset, for goods, boarding Rosenbury, &c., and calculated he did not owe much beyond the offset. The notes had never been renewed, nor any thing indorsed on them, nor any receipt given to apply on them. They had never settled, and the amount was not liquidated or known at the time of the assignment, nor even at the time of this trial, in June, 1862, which seems to have been the third, trial of this cause: and it does not appear whether any thing was due, or, if so, how much. Wilbur says he don’t think there was a thousand dollars, and that at the time of the assignment he did not know . whether he owed Rosenbury any thing or not. Rosenbury claimed that he did, and — to use his own words' — he “might have owed him considerable or not.’’ All this came out on his cross examination, at the beginning of which he had testified that the preferred claim of the plaintiff was just; that is, what was due; but he didn’t know how much was due him.

The defendant below, claiming the assignment to be fraudulent as to Wilbur’s creditors, undertook to impeach it by showing that Rosenbury, the assignee, was insolvent. For this purpose he introduced the depositions of several business men of Penn Yan, where Rosenbury resided, and who had known him from 1840 down to about the time of the assignment, all of whom testified fully to his reputation for insolvency during that period. Upon this point as well as the witnesses’ means of knowledge, the depositions were full and clear. But to so much of these depositions as related to his reputation for insolvency, the plaintiff below objected; and the Court,, sustained the objection and excluded the evidence. This is the first question for our consideration.

While we express no opinion whether insolvency, as a legal status, can be proved by reputation when that is the direct question in issue, we are entirely satisfied that the testimony was admissible in the present case on more than •one ground. First, — though the point can hardly be said to be necessarily involved in the present case — we think it was admissible as tending to show insolvency in fact. The fact of insolvency is one in its own nature, in most cases, hardly susceptible of direct or positive proof. Clear knowledge of the fact must generally be confined to the party whose insolvency is in question — who in the present ease is the plaintiff himself — (and though under our present statute he may be sworn as a witness, we can not hold the defendant bound to resort to that mode of proof more than before the statute, especially as he may be sworn in his own behalf to rebut any proof defendant might introduce). The fact, then, must generally be proved by circumstantial or presumptive evidence — by the proof of other facts from which insolvency is to be inferred. Among the particular facts admissible for the purpose, and thought to be of much weight, and most generally resorted to, is the return of an execution against the party unsatisfied. And yet as an execution does not reach rights in action, nor (in this and most other states) mere trusts; and as the defendant may have any amount of money and even other property so situated as not to be found or reached by the officer, it is easy to see that the defendant in the execution may be (and it is notorious that he often is) a wealthy man in fact, notwithstanding the officer has been entirely unable to find property subject to execution. This is so well understood that the return of an execution unsatisfied would, alone, seldom, if ever, give a man a general reputation for insolvency. Any thing like a common or general reputation for insolvency would not be likely to arise without the observation of numerous other facts, such as the acts and conduct of the party for a considerable length of time, indicating a want of means, and an inability to pay his debts. And as we kpow from common experience that, though men really insolvent often appear to the public for a considerable time as men of property, very few, if any, ever get a general reputation for insolvency who are not insolvent in fact; we think the general reputation of a man as insolvent in the neighborhood in which he resides, and among men whose dealings and interests prompt them to observation and inquiry, is much more satisfactory evidence of insolvency than that of the particular facts most generally relied upon for the purpose; especially where, as in the present case, such has been the unquestioned reputation of the man for a great length of time. It is the deliberate judgment of the community — based upon the observation of a much greater number of facts than it can generally be practicable to introduce in evidence.

But the purpose for which the evidence was introduced in the present case did not require proof of the absolute insolvency of the plaintiff, as a legal status. The evidence was material only so far as it tended to prove a fraudulent intent in making the assignment.

The right of an embarrassed debtor to make an assignment, and to select his own assignee, without, and against, the consent of his creditors, has been finally admitted, in most of the states of the Union; though the propriety of recognizing such a right has often been questioned, and, if the question were a new one, might well be doubted. But to prevent the abuse of the right, and to avoid its being made a convenient engine of fraud, the utmost good faith must be required of the debtor in the selection of the assignee. That selection must be made with reference to the interest of creditors, rather than that of the debtor. Hence, if the assignee be so deficient in age, health, business capacity or standing, pecuniary responsibility or character for integrity, that a prudent man honestly looking to the interest of the creditors alone, would not be likely to select him as a proper person for the performance of the trust; then his selection will furnish an inference more or less strong, according to the circumstances, that the assignor, in making the selection, was actuated by some other motive than the desire to promote the interest of creditors: in other words, an inference of intent to hinder, delay or defraud his creditors. And this inference will be strengthened if the assignee be a clerk or near relative, or a person likely to be easily influenced by the assignor;, as this would tend to raise a presumption that the assignment was intended to be made use of for the assignor’s benefit, or. that there was some secret trust in his behalf, Any thing, therefore, which tends to show that the assignee, in any respect, is not such a person as an honest and prudent man would be likely to select for the position, with reference to the interest of creditors, must, upon principle, be admissible to impeach the good faith of the assignment: (the weight of the evidence would, of' course, depend upon the degree of unfitness shown). In this view it is well settled that the selection by the assignor of a person known to him to be insolvent, is very strong evidence of a fraudulent intent. This is upon the principle that, as the assignee is not by law compellable to give security for the assets, or the faithful performance of the trust, the assignor, in placing the property beyond his own control and that of his creditors, ought to place it in the hands of such person as will be-able to respond to creditors for the waste or wrongful disposition of the assets, or the mal - administration of the trusts. The principle, therefore, is not confined to actual insolvency, but extends to any case where the property or pecuniary means of the assignee are clearly inadequate to-this end, or any state of pecuniary embarassment likely to deprive the creditors of this security. Not that this considei'ation, of itself, is always a controlling one, or decisive of the question of fraud: as the high character of the assignee for integrity and business capacity may sometimes compensate, in a great measure, if not entirely, for his want of pecuniary means, and afford nearly, if not quite as strong assurance to creditors that the fund will be safe in his hands, and that the trusts will be faithfully executed.

The inquiry, therefore, is not so much whether the assignee is strictly, in a legal sense, insolvent, but what is. the state of his property and his pecuniary standing? 4nd upon principle, as well as authority, we think this may be proved by reputation. See State v. Cochran, 1 Dev. 63 ; Hard v. Brown, 18 Vt. 87; also Heywood v. Reed, 4 Gray, 574.

Decisions have been cited to the contrary where the question arose somewhat as it does here. But we think the decisions above cited are founded upon the better reasons. In Alabama proof of insolvency by reputation is rejected, on the ground that insolvency is a legal condition— a conclusion of law from particular facts — and yet in the cases in which it was so held, it is not easy to see how it was any more a conclusion of law from particular facts, than fraud in the present case, or character in ordinary cases, is a conclusion of law from the particular facts which go to establish the general resultant fact of fraud, or character. But, while the courts of Alabama reject proof of insolvency by reputation, yet, with a singular inconsistency, as it seems to me, they allow the particular facts from which insolvency is to be inferred, to be proved by reputation; which, I think, is much more objectionable, both upon principle and authority.

But second., I think reputation of insolvency is admissible in cases like the present, independent of its tendency to prove insolvency or a less degree of pecuniary embarassment in fact. It is well settled that an assignment made by a debtor for the purpose of inducing a compromise on more favorable terms than he could otherwise obtain, is fraudulent. «Now, whatever may be the condition of an assignee as to solvency, as known to himself: creditors have not his means of knowledge, and they must judge of the fact as it appears to the public — in other words, mainly by reputation. It is upon this they must generally form their judgment, and decide upon their course, whether it is best to run the risk of a suit, or to assent to such compromise as the debtor may choose to offer. And if the assignee has a confirmed reputation for insolvency, we can not fail to see, that all prudent creditors would be much more likely in ordinary cases to consent to a compromise on the debtor’s own terms, than if the assignee were reputed to be solvent, and able to respond for mal. versation or breach of trust. In this view we can not resist the conclusion, that, if the assignor has knowingly assigned to a person having the reputation of insolvency, this fact would have a tendency to show that the assignment was made for the purpose of inducing a compromise, even though the assignor believed him solvent in fact (and there was certainly enough in the case to authorise the jury to infer a knowledge on the part of Wilbur of this reputation of Rosenbury); and this tendency would be greater or less, according to the character or fitness of the assignee in other respects, and the other circumstances of the case. But its tendency to prove that such was the purpose of the assignment would be very strong, when, as in this case, the assignor and assignee are shown to have acted together in their endeavors to procure a compromise-, after the assignment was made. We think, therefore, the Court erred in excluding the depositions referred to.

The next error assigned is the rejection of the question put to the witness, Hinrnan, asking him to state any reason or circumstance which led him to give particular attention to the four notes. To understand the nature of this objection it is necessary to see how the question arose. Hinrnan had already testified that, in August, 1855, he was applied to by the plaintiff and Wilbur to aid in getting a compromise with the New York 'creditors. He told them that, to enable him to do so, they must make a statement of their matters; and they showed him four notes, as the basis of the plaintiff’s claim. In this stage-of the trial, as it would seem, while Hinrnan was still under examination as a witness, the plaintiff, under a notice from the defendant to produce the notes, produced the five notes which I have already described. The witness, after looking at the notes, testified, “I can not state whether the notes now produced are the same which were shown me by the plaintiff or not. If they are, I was mistaken in the date. My recollection is, that the four $1000 notes shown me were dated June 15th, 1842. The same notes were soon afterwards shown me at the office of Harmon. The $750 note has the same appearance as the note just shown me. The other four differ in my recollection in the appearance of the paper and date. Those first shown me were clean. These are more dilapidated and worn. I gave the four notes particular attention as to their appearance, the ink, and the edges.” He was then asked, on the part of the defendant, “ Will you state any reason or circumstance which led you to do so ? ” This was objected to, but the grounds are not stated, and the question was rejected.

We think the rejection of this question was erroneous It was very important, in determining the credit to be given to the witness’s recollection, to know whether any or what reason existed at the time to induce the witness to give particular attention to the appearance of the notes. The value of his recollection would depend entirely upon the degree of attention with which he observed the facts, and the reasons which operated upon his mind to excite that attention, and to fix the facts in his memory. He should therefore have been allowed to state any facts which had that effect, whether relevant to the issue or not. The rejection of the question was unfair both to the defendant and the witness. We see nothing objectionable in the form or substance of the question. It was not leading: and the generality of its form was in some measure necessary to avoid suggesting any particular answer.

The next error assigned is the admission of the deposition of Olmsted, the register of deeds of Potter county, Pennsylvania, testifying to the contents of certain deeds to the plaintiff, Rosenbury, there recorded. This evidence was offered to rebut the evidence on the part of the defendant tending to prove the insolvency of the plaintiff, or his want of property. No deed nor any copy of a deed was proved or attached, nor was any offered in evidence. The testimony is claimed to be admissible on the ground that the question of Rosenbury’s title was only collateral to the issue. But the question upon this testimony is not one of reputed ownership, but simply whether the contents of the deed or of the record could be proved by parol. We understand the rule to be well settled that, when the contents of a deed or other writing are to be proved, though only collateral to the issue, the rule is the same as when the matter is directly in issue: and the same ground must be laid for the introduction of parol evidence : — Cow. & Hill, Notes to Phil. Ev. (Ed. of 1839) note 452 pp. 1210 to 1212. Same work by Edwards, vol. 2 pp. 512 to 514; 1 Greenl. Ev. §§ 88, 89.

But as the deposition was taken upon written interrogatories under a commission, and there was a cross interrogatory upon the part of the defendant which called for and elicited evidence of the same nature, and it does not appear whether the interrogatories were agreed upon, or whether, if so, it was with or without the reservation of exceptions ; or whether, if settled by the Judge, any objection was made by the defendant; it is urged that it must, on error, be presumed that no objection was made, and the putting of the cross interrogatory was a waiver of any objections to the evidence elicited by the direct interrogatory.

Though it is for the plaintiff in error to show by his bill that error has been committed, we do not think it was necessary for him to set forth the negative fact, that he had not agreed to the direct interrogatories, as framed, or that he had not consented to waive any objections, unless something appears in the bill to indicate that he had done so; and nothing of this kind appears here. There is nothing in the bill to indicate that the deposition was taken or the interrogatories settled by agreement, or in any other than the usual and legal way pointed out by the statute and rules of Court: and the presumption must be that the deposition was taken and the interrogatories settled in this way, until something appears in the bill to indicate the contrary. If the objection had been waived by agreement, so important a fact, so decisive against the objection, and which must have been so directly before the mind of the Judge in deciding upon the objection and in settling the bill, we can not suppose would have been omitted without imputing to the Judge a want of ordinary intelligence, as well as of candor and fairness. We must therefore treat it as a deposition taken under the statute and rules of court.

By reference to Comp. L. § 4257, it will be seen that ‘‘ any objection to the competency or credibility of a witness so examined, or to the competency or relevancy of any question put to him, may be made in the same manner, and with the like effect, as if such witness were personally examined at such trial.” See also in connection, Ibid. § 4248. This, we think, reserves to the party the right to make his objection for the first time at the trial, though he may have been present when the interroga* tories were settled, and may have put cross interrogatories upon the same matter: and that the putting of such cross interrogatory is no waiver of the objection to the direct interrogatory to which it relates. Such has been the course of decision in the state of New York under a statute substantially like ours. See Fleming v. Hollenback, 7 Barb. 273; Morse v. Cloyes, 11 Barb. 100; Commercial Bank of Penn. v. Union Bank, 11 N. Y. 203. The same practice seems to exist in Ohio and in South Carolina, and, as I infer, without any special provision of statute. See Cowan v. Ladd, 2 Ohio N. S. 322; Ellis v. McBryde, 9 Rich. 269: and 'by statute in Massachusetts in cases where the depositions are not taken on written interrogatories, though both parties are present at the taking : • — ■ Atlantic & Marine Fire Ins. Co. v. Fitzpatrick, 2 Gray, 279; Heywood v. Reed, 4 Gray, 574; Palmer v. Crook, 7 Gray, 418: and see Lord v. Moore, 37 Me. 208. It is true our statute does not, like those of Massachusetts and New York, expressly reserve the right to object to the answer. But we think the right to object to the question on the trial, must also extend to the answer: and if it be said that the right to object to the answer must depend upon the question being objectionable, still, though the interrogatory does not here appear, it must be presumed to have called for the answer the witness gave it: — Francis v. Ocean Ins. Co., 6 Cow. 415. If the direct interrogatory and the answer to it be rejected, as incompetent, the cross interrogatory and answer, being dependent upon it, must also be rejected: — Ellis v. McBryde, supra; Fleming v. Hollenback, 7 Barb. 273. (The last case was overruled in Cope v. Sibley, 12 Barb. 521, upon another point, but not upon any question involved in the present case.) We think therefore the deposition of Olmstead, so far as it purported to state the contents of the deeds mentioned, was erroneously admitted. {¡¡$ The next error assigned is the refusal of the Court to charge, that, “if the jury should find that Rosenbury made statements before the assignment that Wilbur was not indebted to any considerable extent, that the setting up of the notes held by Rosenbury, as just claims in the assignment, would be. strong badges of fraud.” The language of this request has been criticised by the counsel for the defendant in error. Its grammatical accuracy will hardly be insisted upon, and perhaps it is open to the criticism that it does not, abstractly considered, express the idea intended to be conveyed. But we think it fair to construe a request of this kind as it must have been understood by the Court, and by the jury had the charge been given as requested. For this purpose it should be construed with reference to the evidence in the case upon the subjects to which it alludes. When considered in this light, though it may fall short of expressing the whole proposition intended, we think it was a sufficiently intelligible expression of a proposition which the defendant was entitled to have embodied in the charge. Saxton had testified that, in the winter previous to the assignment, plaintiff in Wilbur’s store had asked the witness why he did not lend Wilbur more money, saying Wilbur was perfectly good and not owing much. Hinman testified that, at the first interview with plaintiff and Wilbur, in August, 1855, they both fixed the amount due plaintiff (meaning, as the former portion of his testimony shows, upon the notes), at nine thousand dollars; and that at a subsequent interview at Harmon’s office, plaintiff stated his claim at the same sum. This was stated as the amount of the plaintiff’s preferred claim, under the assignment, and to enable Hinman to effect a compromise with the New York creditors; and must of course have been intended to be communicated to these creditors as an inducement to a compromise. When the request is construed with reference to this evidence, to which we think it must have been understood by the Court and jury to relate, it must, we think, be understood as a request to charge, that, if the jury should find the plaintiff had made the statements testified to by Saxton, then the setting up of the notes as just claims in or under the assignment (the difference in the propositions will not materially alter the sense) in the manner stated by Hinman, would, if found true, be “a strong badge,” or a strong indication or evidence, of fraud (for this is the sense in which “badges of fraud” are used): see Burrell on Assignments, 433, 434.

We do not think this request fairly open to the objection urged, that it required the jury to assume that Wilbur was not much indebted in fact, if Rosenbuiy should be found to have so stated. If this fact (that he was not much indebted) were established, then the setting up of the notes in the manner and to the amount stated by Hinman, would, if found true, not only be a badge, or evidence of fraud; but would of itself constitute fraud. The request, however, only asks for a charge that it would be evidence of fraud. Nor do we understand the request as requiring the jury to assume that the notes were in fact “ set up ’’. The language is “ the setting up the notes would be ” (not was or is) strong badges of fraud: leaving, as we think, the jury to determine whether they were thus set up. The request would have been more logical in form had it been that the statement of Rosenbury referred to, and the subsequent setting up of the notes— should the jury find both these facts — would be strong badges (or evidence) of fraud. But such, we think, was the effect of the request; as both facts were left to the jury, and the latter fact was not asked to be treated as evidence of fraud without the finding of the former.

The statement of Rosenbury alluded to would tend strongly to show that Wilbur could not have been indebted to him in the amount of nine thousand dollars upon the notes, the amount at which the testimony of Hinman tended to show they were set up by both the assignor and the assignee. The request does not require the jury to assume that, if set up, they must have been set up for more than was due, but this is what the evidence of Rosenbury’s statements and of the setting up of the notes for nine thousand dollars as stated by Hinman tended to show.

If, however, the bill states all the evidence upon the point of Wilbur’s indebtedness to Rosenbury, it was the duty of the Court and jury to assume that there was not nine thousand dollars due on the notes, and that if set up as stated by Hinman the notes were set up for more than was due. It appeared from the plaintiff’s own showing (for the testimony of Wilbur on cross examination must be treated as evidence on the part of the plaintiff), that not more than one thousand dollars, if anything, was due. And so far as the bill shows, this fact was undisputed. If, therefore, the record shows all the evidence upon the point, the defendant, had he asked it, would have been entitled to a charge that the setting up of the notes as stated by Hinman, would, if found true, be strong evidence of fraud, whether the jury should find Rosenbury had made the statement in reference to Wilbur’s indebtedness alluded to or riot. We think, therefore, the defendant was entitled to the charge asked.

Did the charge given in answer to the request cure the error of its rejection? This charge was “that, if the jury 'find that plaintiff stated, before the assignment, that Wilbur was not indebted to any considerable extent; then, in deciding whether the transaction was fraudulent or not, they should take into consideration the fact that the plaintiff set up the notes as just claims in the assignment, as well as all other facts in the case.” This charge certainly exhibits an extreme of delicate forbearance entirely uncalled for by the case, or the question of fraud involved: since, with apparently studious care, it avoids telling the jury that the setting up of the notes under the circumstances stated would be evidence of fraud, or whether its tendency would be to prove the transaction fair or fraudulent. Perhaps the charge may not violate any principle of law in any rule which it lays down. And the setting up the notes in the manner and to the amount supposed would so palpably indicate fraud, that a jury would not, under ordinary circumstances, be in any danger of misapprehending the effect of the evidence. But such a charge coming immediately upon the refusal of the Court to charge that such conduct would be evidence of fraud, was certainly calculated to make them doubt whether such was its tendency, or whether in law it was-to be regarded as having any decided tendency one way or the other.

It is further assigned as error, that the Court refused to charge, “that if the jury find that Wilbur was solvent, or believed himself to be so, when he made the assignment; then the necessary effect was to hinder, delay and defraud creditors, and the assignment is void.”

We think this charge was properly refused. We can see no good reason to hold that the mere fact of the solvency or insolvency of the assignor, or his belief of the one or the other, must necessarily render the assignment void. Without any fraudulent intent in ■ either case it would be valid: and with a fraudulent intent it would be void in both cases alike. Nor will the fact that the assignment is made by an embarrassed debtor, whether solvent or insolvent, to prevent a sacrifice of his property, necessarily, and of itself, render it void. It will depend upon the purpose with which the sacrifice is sought to be avoided. If for the sole purpose of giving his creditors the benefit of his property, which, in case of a sacrifice, they would not be likely to obtain to the same extent, then, whether solvent or insolvent, this is an honest purpose, and should not invalidate the assignment. But if the sacrifice is sought to be avoided for the purpose of enabling the assignor to reap a greater benefit by securing a larger surplus, or retaining the control or use of the property, or in any other way, or for the purpose of compelling a compromise; then the purpose is fraudulent, and the assignment is void. See Ogden v. Peters, 15 Barb. 560 ; same case on appeal, 21 N. Y. 23 ; Rohenbaugh v Hubbel, cited, 15 Barb. 560.

But the fact of the solvency or insolvency of the assignor, or his belief of the one or the other, may not be wholly immaterial. A person believing himself solvent might be more likely to seek to avoid a sacrifice for the purpose of securing a surplus to himself, than one y^ho believed himself to be insolvent, as the inducement to this end might perhaps be stronger: and therefore it might require less evidence in such a case to authorize the inference of such an intent, than if he believed himself insolvent. But this may admit of doubt.

The only remaining exception is, the refusal of the Court to charge “that the assignment conveys only a life estate in the real estate therein mentioned; and if the jury believe that Wilbur intended to reserve the remainder to himself) the assignment is void.”

The assignment “grants, bargains, sells, releases, assigns and sets over to the said John J. Rosenbury, and to his assigns forever” (omitting the word heirs), all and singular the lands, tenements and hereditaments, real estate and chattels real (as well as his personal property, notes, accounts, &c). The habendum is, “to the said John J. Rosenbury, and to his assigns, in trust however, and to and for the uses, intents'and purposes following: that is to say, the said John J. Rosenbury shall take possession of the said property, and shall with all convenient dili. gence, sell and dispose of the same, either at public or private sale, to such persons, &c., collect debts &c., and convert the same into money,” &c. And it is further provided that said Rosenbury, with the avails and proceeds of said sales and collections, shall first pay and discharge the costs and expenses attending the due execution of this assignment, and the carrying into effect the said trusts, with a reasonable compensation for his own services: and the residue of the avails and proceeds of said sales and collections shall constitute a fund to be used and applied by said Rosenbury for and towards the payment of the debts owing by said Wilbur: which debts he shall pay and discharge in the order “therein set forth.” Nothing is expressly reserved to the assignor except what may remain after the payment of all his debts of every kind. And the assignor covenants with the assignee “and his assigns,” that “ he will, .when thereto required, make and cause to be made such further arrangements, deeds and conveyances as shall be necessary to carry into full effect this indenture, and the intention of- the parties to the same.”

This, therefore, is a conveyance in trust for the sale of the land and real estate (as' well as of the personal property), and for the payment of debts from the proceeds. In such a case we do not think the word “heirs ” is necessary to convey a fee. When a conveyance of land is made in trust for such a purpose, we think the trustee must be held to take an estate as large as znay be necessary for the purposes of his trust, whether the conveyance contained words of inheritance or not: — 2 Washb. on Real Property, pp. 186, 187, §§ 43 and 44; 4 Kent, 304; Farquharson v. Eichelberger, 15 Md. 63; Spessard v. Rhorer, 9 Gill, 261. There is certainly nothing in the instrument indicating an intent that the sale to be made by the assignee was to be of any particular estate or interest less than the whole. We are therefore satisfied that this request was properly refused. But for the several errors upon other points, the judgment must be reversed, with costs of this Court to the plaintiff in error; and a new trial must be granted.

Martin Cii. J. and Manning J. concurred. Campbell J. did not sit in this case.

Case Details

Case Name: Angell v. Rosenbury

Court Name: Michigan Supreme Court

Date Published: Jan 8, 1864

Citation: 12 Mich. 241

Court Abbreviation: Mich.