2 N.Y. 394 | NY | 1855
Egan the appellant, the purchaser under the decree of foreclosure, objects to the title on the ground that there are outstanding mortgages; and also, that the conveyance to O’Brien, the mortgagor, was invalid.
One of the mortgages was given about 84, and the other 66 years before the sale. The referee does not find when they became due, nor who has since been in possession; but he states that no evidence was given of payment upon them, or of an acknowledgment of indebtedness thereupon, at any time; and he therefore finds they have been paid and satisfied. Without explanation, the presumption of payment arises from the lapse of time, in favor of a mortgagor in possession, (Ang. on Lim., 492 et seq., and cases there cited; 2 Hill on Mort., ch. 21; 2 Sug. on Ven. & Pur., 361; Matt. on Pres. Evid., 329 et seq., 352 et seq.; 2 R. S., 301, § 48.) It would have been more satisfactory if the referee had found the facts in relation to the possession, &c.; but he has found the mortgages paid and satisfied; and the onus, after this great lapse of time, may be considered to rest upon the purchaser. I think these mortgages constitute no valid objection to the title.
Some eminent jurists in this state have said that land held in trust is inalienable. (See Wood v. Wood, 5 Paige, 600; Hawley v. James, id., 318; S. C., 16 Wend., 61; Coster v. Lorillard, 14 id., 265; Kane v. Gott, 24 id., 641; Irving v. De Kay, 9 Paige, 530; S. C., 5 Den., 646; Van Epps v. Van Epps, 9 Paige, 237.) And §§ 63 and 65 of the article “ Of Uses and Trusts” no doubt have had an important influence in the construction of several wills, which. have taken effect and have come before the court since those sections have been in force. Chief Justice Savage, in the case of Lorillard’s will, remarked in relation to a clause which it was contended authorized a sale of the income at least of trust property, “ the statute is paramount and must control the provisions in the will.” (14 Wend., 304.) And the language of Mr. Justice Nelson and some of the other members of the court was very much to the same effect.
Section 63 inhibits the assignment or disposition of the interest of a person beneficially interested in a trust for the receipt of the rents and profits of lands. And by § 65 every sale, conveyance, or other act of trustees, in contravention of the trust, is declared to be absolutely void, where the trust shall be expressed in the instrument creating the estate. (1 R. S., 730.) In this case, the trustees by the deed creating the trust, are to have, take, collect and receive the rents, issues, profits and other income of the property, for the separate use and benefit of the cestui que trust, and apply the same to her separate use. This is a valid trust within. § 55, and the estate passed to the trustees so long as the execution of the trust should require it. But the same deed also, in express terms, authorizes the trustees
It was said by the chancellor in Hawley v. James (5 Paige, 444, 445), that “the mere exchange of one piece of property for another by a trustee, under a valid power in trust, is not considered as an alienation of the estate or interest of the cestui.que trust, or person 'beneficially interested in the trust estate -and again, “ a mere power to exchange lands, whether such exchange 'is 'made directly, or by means of a sale and -new purchase, is 'not a power to alien the estate, within the -intent and meaning tif the provisions of the Revised Statutes on this subject.” And Mr. Justice Bronson expressed the same opinion when 'the cause came before the court for 'the correction of errors. (16 Wend., 163, 164.) And, consequently, such a power would not obviate the objection as to inalienability, within the rule against-perpetuities. If '-this be so, and it woüld seem that some of the decisions under -the present statute must have involved the very point, -it must be upon the -ground that, notwithstanding the power, the -fund is inalienable. The application tif this principle to this case is necessarily a strong argument,"if not conclusive, in Tavor of the plaintiffs. It is admitted that this instrument would -have conferred-an authority to sell before the Revised Statutes-; and if a sale for the purpose of "reinvesting -in other lands, to be held in trust for the same purposes, is not an alienation within .§§ 63 and 65, and §§ 14 and 15 (1 R. S., 723), then the sale is valid. And the'purchaser is not even bound to see that the money is applied to the purchase tif tither lands.
But if a sale by the plaintiffs be considered simply an alienation, I cannot think it is void as being prohibited by § 63 or § 65. This was an antenuptial agreement; and powers of sale and exchange have been considered usual and proper in marriage settlements. (Sugd. on Pow., 181; Sugd. on Sales, &c., 109; Brewster v. Angel, 1 J. & W., 608; Peak v. Penlington, 2 V. & B., 311; Hill on Trust., 472; Hill v. Hill, 6 Sim., 136.) The want of such power might sometimes be very prejudicial to those having an interest in the trust property. The phraseology of the statute in relation to trusts, and that in regard to powers, are not the same. Uses and trusts, except as there authorized and modified, are abolished; and the statute enumerates and defines the express trusts allowed by law. (1 R. S., 728, §§ 45, 55.) If is also declared that powers, as they then existed by law, were abolished; and that, from thenceforth, the creation, construction and execution of powers should be.governed by article third, “ Of Powers.” (1 R. S., 732, § 73.) And the next section defines a power, and that is followed by a classification of them ; but there is no such particular specification or enumeration of what are lawful, as in the article on trusts. There are powers unconnected with trusts (2 Sugd. on Pow., 187; 1 R. S., 732, 733; and see id., 734, § 96); and powers in the nature of trusts. (2 Sugd. on Pow., 173.) Most or all of the latter are by statute now denominated powers in trust; between which and a trust, or an estate held in trust, the statute recognizes an obvious distinction; although some of the trusts specified in § 55 are more properly mere powers in trust.
No doubt the object of the execution of a power in trust should be for a lawful puipose. As, for instance, if it be to create a perpetuity, the power wonld be invalid. (1 R. S.
The objection, that the deed from Belmont to Larocque gave the latter no authority to grant such a power, is not well taken. The two deeds, for that purpose, might be considered one instrument; and besides, the first provided that the other should be executed immediately after, “ in such manner and upon such trusts, covenants and conditions as” the grantor should “ direct and approve.”
The conveyance by the surviving trustees was good without the appointment of a new trustee in place of Mr. Griffin. Authority was given to the survivors to fill the vacancy, but they were not required to do so ; and it is therefore not necessary to inquire what would have been the rule, if the direction had been positive and imperative.
Denio, Ruggles, Johnson, Marvin and Crippen, Js. were also in favor of affirmance.
Gardiner, Ch. J. and Dean, J., dissented.
Order affirmed.