Jackson ex dem. Pintard v. Bodle

20 Johns. 184 | N.Y. Sup. Ct. | 1822

Spencer, Ch, J.

delivered the opinion of the Court.

The plaintiff’s right to recover depends entirely on the effect of the discharge to John Pintará, and the assignment made to Cummings and Baldwin, under the insolvent proceedings in Mew-Jersey ; for it does not admit of a doubt, that the assignment, under the bankrupt act, by the commissioners of bankruptcy, to Moore and Farquhar, the assignees of Pintará, passed all the estate and interest of Pintará in the premises. The act repealing the bankrupt act, contained savings and provisos in favour of such cases as were then pending ; and this case was then pending.

The question is, whether, under the facts proved in this case, the Mew-Jersey assignees can, now, for the first time, after the lapse of more than twenty years, assent to the trust, and take under a deed, when, during all that period, they have never acted, nor accepted the trust conferred on them by the assignment of the 22d of May, 1798 ? I am of opinion that they cannot. It is necessary to the validity of a deed, that there he a grantee willing to accept it. It is a contract, a parting with property by the grantor, and an acceptance thereof by the grantee. An acceptance will be presumed, from the beneficial nature of the transaction, where the grant is not absolute. The presumption is not so strong, that the grantee accepts the deed, where he derives no benefit under it, but is subjected to a duty, or the performance of a mere trust. The non-existence of any oath# on the part of the assignees, to execute the trust, and the lapse of so many years, without having executed it, coupled with the declarations of one of the two surviving trustees, in the presence of the other, without any dissent on his part, that they had nothing to do with the trust, that they had never qualified, had no concern with the property, and never intended to act, make out the fact, that they never agreed to accept the trust, and, consequently, never assented to the deed. In Jackson, ex dem. M‘Crea, v. Dunlap, (1 Johns. Cas. 114.) and in Jackson v. Phipps, (12 Johns. Rep. 422.) the principle is distinctly advanced, that it is essential to the legal operation of a deed, that the grantee assent to receive it, and that there could be no delivery without an acceptance.

Without examining the other points in the case, this is decisive against the plaintitf’s right of recovery.

Judgment for the defendant..