2 Barb. 381 | N.Y. Sup. Ct. | 1848
The assignment of Cadmus, which the bill seeks to set aside, is declared to have been made “to provide for the payment of his debts.” It conveys all his real and personal estate to Clark and Fish, two of the defendants, upon trust, “ to manage and improve, sell, assign, dispose of, and convey, collect, recover and receive, and convert into money, all and singular the assigned and transferred' premises, and every part and parcel thereof, at such time or times and in such manner and form and upon such terms and conditions as they may deem most beneficial and expedient, and, until a sale of the said estate can be effected, in trust to mortgage the same or any part thereof, for the purpose of paying any mortgages or other incumbrances thereupon—and the moneys arising from the trust estate, after paying the expenses and disbursements attending the execution of this trust to pay,” &c.—in satisfaction of the debts of the assignor.
It appears that at the time of executing this assignment Cadmus was the owner of a considerable real estate lying in the city of Brooklyn, which was heavily incumbered with mortgages; some of which were about to be foreclosed, and
What was the intention of Cadmus in making this assignment ? I am asked by the plaintiff’s counsel to find that his intention was to create an illegal trust, or to convey his estate with a view to delay, hinder or prevent creditors; and to draw this conclusion from the language of the instrument of assignment alone. The plaintiffs insist that this instrument confers upon the trustees authority to manage and improve the real estate of the assignor in such manner, as they may deem most beneficial and expedient, in order to enhance its value for the benefit of the assignors; and authorizes them to incur expenses and disbursements for that purpose, and to reimburse themselves for the same out of the proceeds of the assigned property, and to retain such property in their possession for the purpose of making erections and improvements, to the manifest delay, hinderance and prevention of creditors. Or in another aspect, that it creates a trust for other purposes than to sell or mortgage, contrary to statute.
This construction of the instrument of assignment is based upon the words “ to manage and improve,” which are embraced in the clause declaring the trusts, attempted to be created by the instrument.
But I am unable to give these words so broad an effect, when used in the connection in which they stand. They are employed in respect to real and personal property, the former heavily incumbered and threatened with mortgage sales; and there is nothing else in the instrument which indicates that there was any delay or disbursement contemplated for the purpose of building upon, improving, or repairing the real estate assigned. It seems to me these words would be satisfied by construing the instrument of assignment to authorize the trustees to control and administer the assigned property, to meliorate the same by their careful and prud.ent management, and to sell it at such time and in such manner as would be most
As I read that instrument, it is, in effect, an assignment of real and personal property in trust to pay the debts of the assignor ; and for that purpose it gives the control and management of the assigned property to the assignees until its sale can be beneficially effected. It directs such sale, without stipulating for any delay, and it devotes the proceeds to the payment of just debts, and is, I think, valid in law.
There must be a decree accordingly, and the bill against the defendants Clark and Fish must be dismissed with costs. And as against. Cadmus, the usual reference must be had for the appointment of a receiver of his estate.