3 Johns. Ch. 435 | New York Court of Chancery | 1818
The cause stood over for consideration until this day.
The great object of the bill is to set aside the deed of trust of the 2d of December, 1799, from Mark 8/ Speyer to John Murray, and the deed of the 21st of Jlpril, 1800, from Speyer to Murray.
1. The trust deed was made to* secure the German creditors several of whom made a loan to Mark fy Speyer, upon the condition that they should be secured by lands in the United States.
One of the objections to this deed is, that it was made upon a condition which has since been fulfilled, which was the discharge of Speyer from the partnership debts, This condition is repeatedly expressed in the deed. The lands mentioned in it were conveyed in trust, for the security and payment of European creditors, until the debts were paid, or Speyer should be “ otherwise exonerated, acquitted, and discharged therefrom.” The manner in which Speyer was to be discharged is afterwards mentioned. It was to be done by the act of the creditors, transferring their demands from the house of Mark 8f Speyer to Mark alone, so as thereby to exonerate Speyer. It is, again and again, declared and repeated, that the German creditors were to exonerate S'. “ so as the said creditors could not thereafter claim, challenge, or recover the debt or any part of it, from himor so that hr
There cari be no doubt in the mind of any person who will carefully peruse the deed of trust, that the discharge of Speyer was to come from the German creditors, and to be a personal act of theirs, and no other means of discharge were within the purview of the deed. No siich discharge is pretended, and, therefore, the deed remains in force. But it has been urged, that the discharge of Mark fy Speyer iti October, 1800, under the bankrupt act of the United States, was a discharge from the German debts, within the condition of the deed. It is a decisive answer to this objection, that the parties did not mean such a discharge, and that the deed must have operation according to the manifest intent. Nor did the discharge of Speyer, under the bankrupt act, fully and perpetually exempt him from the German débts. These debts were contracted in’ Germany, and payable iti Germany,■ and the discharge of Speyer by the bankrupt law of this country will not discharge him from those debts', unless those foreign creditors have assented to that proceeding, by-coming in and proving their debts under' the commission". I am aware that the opinion has respectable sanction; that “ a céssio bonorum, under the laws of a state where the debtor has his permanent domicil, ought to operate as a discharge from his creditors in every part of the world,” But.such a general rule as this is riot the law of thé
A bankrupt or insolvent act ought not to be presumed to have been intended to reach foreign contracts, unless it be so declared. If Speyer was to be deemed discharged for any suit here, within the United States, for the German debts, by force of his discharge under the bankrupt act, (and this is a point xvhich I am not willing to concede without further consideration,) yet that would not satisfy the terms of the deed of trust, unless the discharge here would operate as a discharge in Germany, where the debts xvere contracted. He must be “ wholly and absolutely and perpetually discharged from all manner of liability for the payment of those debts;” and can we say, or can we believe, that if Speyer had returned to his native German country, where his father resided, and xvhere the debts were contracted, that he could have pleaded his discharge here in bar of a suit there? It does not appear in what part of Germany the debts were contracted; but, vve know, that in several parts of it there is no such thing as a debtor’s discharge by the assignment of his property. Huberus says, (Prcelec. tom. % 1454.) that secundum jus nostrum, cessio bonorum imitis creditoribus, debitorem a carcere publico non liberat. The law is the same in other parts of Germany. Non ubivis tamen locorum hoc beneficium, (says Heineccius, xvhen speaking of the cessio bonorum,) indulgetur obairatis. Cessat sane in Saxonia electorali, ubi debitores nihilominus, urgentibus creditoribus, delrudmtur in carcerern.—Jure Lubecensi, debitor, qui non solvendo est, adjudicaiur creditori sed ita, ut quotidiana qperce debitum minuant. ffeinec. Elem. Jur- Civil. Secund,
I am satisfied, upon the whole, that there is no weight in this objection.
Another objection taken to the force of this trust deed; is, that it was to be considered a mortgage, and ought to have been registered, to give it effect against the subsequent assignment of Mark & Speyer.
The answer to this is, that the deed speaks for itself, and appears, most obviously, to be a conveyance in trust for the benefit of the German creditors; and it would be absurd to bring such an instrument, creating such very special and complicated trusts, within the meaning of the registry act. That act relates only to simple conveyances by way of mortgage for the payment of money, at certain definite periods, and the provisions in it as to the registry and discharge of mortgages, have no application to this deed. It is true, that some of the provisions in the deed speak of part of the German creditors as being, in certain events, special mortgagees or conditional owners, but those words cannot
But if it was a mortgage, the assignees had notice of it: In the examination of Mark before the bankrupt commissioners, he gave, in his schedule marked A, an account of all his lands, in which it was stated, that the 61,414 acres in township No. 5, and embraced by the trust deed, were conveyed to Murray, in trust for a number of German creditors, and was made in December or January preceding; and in another exhibit, he stated those lands to be incumbered by a mortgage to Le Roy of Son, and for the security of debts owing in Germany, amounting to 100,000 dollars. The two assignees appeared and proved their debts, and the assignment to them must have contained or referred to the schedules of their debts. The mention of the trust deed in these schedules, on which the assignment was founded, was sufficient notice to supply the place of the registry, and to give it operation prior to the assignment under the bankrupt commission. This was at least a notice of equal certainty, and ought to be of equal effect, with the one admitted to be sufficient by the Court of Errors, in their decision in March last, in the case of Dunham v. Dey,
It is farther objected to the deed of trust, that it was made to delay, hinder, and defraud creditors, and was consequently, void within the statute of frauds.
There does not appear to me to be the least shadow of foundation for this objection, and I am persuaded the deed was made with upright views, and for just cause.
The loan of 40,000 dollars from Count de Rotíenham> and the other two German creditors, was made upon the ■express promise of security in American lands; and when
I have not thought it necessaryto notice the objection made to a want of delivery of the deed to the trustee, for it is extremely obvious, from the answers, that the delivery was to the trustee, and that when it is said, in one place, that the delivery was to Marie, it was evidently a mistake. The agreement, signed by the respective counsel, and admitting' certain facts "to be deemed proved, states, that the deed was duly executed and delivered on the 24th of January, 1800. The provision in one part of the deed, that the trustee was not to sell below the price of two
All the objections to the trust deed appear to me to be destitute of any real force.
2. We are next to consider the validity of the deed of the 21st of Jlpril, 1800, from Speyer to Murray, of two lots of land in the city of New-Yorh, which belonged exclusively to Speyer.
These lots were sold to Murray for 500 dollars, for which Murray gave, his note, which Speyer got immediately discounted at one of the banks for his own use. It is denied that this sale was made in contemplation of bankruptcy; but Murray admits, that this sale was in trust to pay the surplus, if any, arising on a future sale of the lots, to the order of Speyer, who directed it to go to pay a debt due to his father in Germany.
There is nothing in this transaction that will warrant us to conclude, that this deed was made in contemplation of bankruptcy, and in fraud of the bankrupt act, which was passed the 4th of Jlpril, 1800. That act was not to operate upon what were declared to be acts of bankruptcy, except such as were committed after the 1st day of Jiote following. This was a" fair and bona fide sale, and, probably, for a full, if not an enhanced price, and it does not appear that the lots have since been able to produce a surplus, though an effort has been made to sell them'
Decree accordingly.
Vide 15 Johns. Rep. 545.