Earle v. Washburn

89 Mass. 95 | Mass. | 1863

Chapman, J.

The deed of John Davis to the tenants conveyed to them an estate in trust. It was expressed to be in trust for the sole use and enjoyment of Zion’s Methodist Society, a religious association of colored persons in Worcester, not then incorporated, and with authority to convey the property to the society whenever they should believe such a step to be judicious and useful. The terms are very similar to those of the deed mentioned in Attorney General v. Federal Street Meeting-House, 3 Gray, 1, which was held to convey an estate in trust. It is manifest in the present case that the grantor did not intend that the legal estate should pass to the society till the trustees should have exercised their judgment in the matter and have actually made a conveyance, and the estate is not to be regarded as a use executed by the statute of uses, unless it appears that the grantor intended it to be executed. Gregory v. Henderson, 4 Taunt. 772. The estate of the cestuis que trust was not liable to be extended on by their creditors. Russell v. Lewis, 2 Pick. 508.

But the society built a house upon it, and were desirous of obtaining credit for a portion of the expense by mortgaging the property. To effect this object, certain deeds were made on the 29th of October 1855. The trustees released to the society; the society executed a mortgage to Howe, and then reconveyed the property, subject to this mortgage, to the trustees, to hold in the same manner as before.

The presiding judge correctly ruled that this transaction was-not fraudulent as to creditors. It could not tend to hinder or delay them in the collection of their debts; for the property was not and had never been subject to the claims of creditors.

It is contended, however, that the legal operation of the transaction was such as to subject the property to these claims. It is said that the conveyance by the tenants to the society, vesting the legal estate, merged the equitable estate in it, and thus extinguished the trust, so that it could not be revived again. It is contended that this is the technical effect of the two estates coming together in the society. But while this is generally the effect, it is not always so. The doctrine is stated in 2 Wash-burn on Real Prop. 203, as follows: “ But there is, after all, a principle recognized by courts of equity which controls their decisions in all questions of merger of the equitable in the legal estate, and that is, that if it is necessary for purposes of justice, or to effect the intent of the donor, that the two estates should be kept distinct, there will be no merger by their merely coming together in one person.” This position is sustained by the citation of numerous authorities. In Gibson v. Crehore, 3 Pick. 475, there cited, the two estates remained permanently in the same person. In this case, the legal estate merely passed through the society to the mortgagee, and their seisin was but momentary. As a part of the same transaction they restored the estate to their grantors, subject to the mortgage. It is contended that by the deed of the society the tenants became seised of a use for the benefit of the society which was immediately executed by the statute of uses, and thus revested the estate in the society. But the deed was made for a valuable consideration, the conveyance to the society being such, and the reconveyance is for the expressed intent that they may hold .the estate upon the same trusts as before. The court are of opinion that the law does not interpose any technical rule to defeat the intent of the parties ; and that as the parties intended to continue the existence of the trust subject to the mortgage, and used appropriate language to effect their intent, the law does not defeat it by executing a use.

The equity of redemption being thus held by the tenants, the levy of the demandant’s execution was not valid.

Exceptions overruled. '