14 Barb. 39 | N.Y. Sup. Ct. | 1852
It does not appear that one of the subscribing witnesses saw the assignment executed at all: and the other only wrote the initials of his name, on the 16th or 19th of July. But it is sufficient that Shattuck & Foster both acknowledged the assignment before a proper officer.
It is pretty clear from the testimony, that 'the assignment was not delivered to Amasa Shattuck, nor did he accept the trust, or act under it, until after the levy. B. Ball testified, that he acted under an authority from Shattuck, in writing; but, though called for on the trial, no writing was produced, and the testimony of Amasa Shattuck himself certainly tends to show that he did not accept the trust, at least till after the levy; and leaves it in doubt whether he ever heard of it, until about the time he came to Troy, in September, after the goods were sold. He says he consented to act as assignee with reluctance. But his son wrote to him in September, to come to Troy, and he adds, “ I think I knew before that time that the assignment had been made; I do not know when or how I got the information.” He states, that before the goods were sold to the plaintiffs, “ he had heard nothing in regard to the purpose of selling.” Delivery of a deed to a third person, is said to be a good delivery, if it be for the use of the grantee. (Church v. Gilman, 15 Wend. 656.
If any estate vested in Shattuck before the levy, he seems to have had no agency in the attempted sale. It would have been difficult to make him accountable as trustee, upon the ground of any interference with the trust fund, up to the time of the sale.
The complaint alledges that the defendant, as sheriff of the county of Warren, “ without any lawful right or authority, unjustly seized, and forcibly and wrongfully took from the possession of the plaintiffs, and without any lawful right or authority carried away” the property. The sale to the plaintiffs was on the 18th of September. The deputy of the defendant testified that he made the levy on the 11th of that month. If the taking
But disregarding these objections, I think there is a conclusive answer to this suit. When Shattuck executed the assignment, the schedule of the property was present, though not annexed to the assignment. As I understand the testimony, the assignment and schedules were then on several loose sheets or half sheets, not fastened together in any way; and he declared these sheets parts of the same instrument. Three days afterwards Foster signed the assignment, and after that, it would seem, all but schedule A were wafered together by some one, and transmitted to the clerk of the county, in an adjoining town, for record. A person acting for one of the assignees kept possession of schedule A, and after this suit was commenced, he obtained possession of the assignment, which had been recorded in the mean time, and then, for the first time, affixed schedule A thereto. It does not appear that the assignor, Foster, ever saw that schedule. It is said, the assignment conveyed all the personal property of Shattuck & Foster without the schedules. That conveys all their lands, tenements and hereditaments in the state of New-York, and adds, “and all the goods, chattels, merchandise, bills, bonds, notes, books of account, judgments, evidences of debt and property, of every name and nature whatever, of the said parties of the first part, more particularly enumerated and described in the schedule hereto annexed, and marked schedule A.” Clearly this schedule contained the personal estate, and the only personal estate transferred. It would control and limit the general words, by every sound rule of construction. (Wilkes v. Ferris, 5 John. 335. Munro v. Alaire, 2 Caines, 327. Roe v. Vernon, 5 East, 51. Dae. v. Greathead, 8 Id. 91.) And until that was annexed, the instrument would be inoperative. It conveys all the real estate in this state. But to the schedule we are to look for a specification of the personal propertyand the assignors may say, nothing more was conveyed; only that which was thus “ more particularly
Even as between the parties, it seems an assignment would not be valid, unless executed with the schedules annexed. In Weeks v. Maillardet, (14 East, 568,) there was an agreement to deliver up to the plaintiff, on a future day, the whole of the mechanical pieces as per schedule annexed, so much to be paid therefor on the day that the plaintiff delivered the pieces as therein mentioned. Both parties executed both parts or duplicates of the agreement under seal; and the subscribing witness had present at the time an exact inventory of the property, and on which they had agreed, and which he afterwards copied upon the part or executed copy belonging to each. But the court held the contract insensible; and that it had no object to operate upon, without the schedule. From the report of the case, it seems that the judges did not put their decision merely on the nonexistence of the schedule at the time, or rather part of them did not advert to that circumstance; but on the ground that it was not, as it purported to be, a scheduled instrument. And in that case, as here, the instrument purported to convey the whole of his mechanical pieces. (And see Burgh v. Preston, 8 T. R. 486; Brake v. Smith, Moor, 679; Zouch v. Clay, 3 Lev. 35.)
There are some other decisions which sustain this view of the case. In Averill v. Loucks, (6 Barb. 474,) which was a contest among creditors, it was held that the assignments were void, where all the property was assigned to pay debts in certain schedules “annexed,” and schedules giving preferences were to be made and annexed as soon as praticable, and within
Affixing the schedule after the suit was commenced did not remove the difficulty. If it had been duly authorized by the parties to it and re-delivered, it might have been a valid assignment of the personalty, as between the parties, from that date. But if done by the assignees only, or by one authorized to act for them, it was a material alteration, and would make the assigment, at least, void for the purposes of evidence. (Pigot’s case, 12 Coke, 27. Chitty on Cont. 677, 591. Lewis v. Payne, 8 Cowen, 71. Waring v. Smyth, 2 Barb. Ch. 119.) But I find no proof that it ever was annexed by the authority of the parties, or with their knowledge.
No doubt a contract may consist of different papers, as letters, statements, &c., but as a general rule, they must all refer to each other, so as to be understood without parol evidence. Wills of personal estate, in England, were almost exceptions before the last revision, for they were often made in the loosest
Upon principle and authority, I do not see how, at least as against creditors, we can sustain this instrument as a valid transfer of the personal property now in question. (See Cooper v. Smith, 15 East, 103; 1 Sug. V. and P. ch., 3, § 3; Jackson v. Titus, 2 John. 430; First B. Ch. &c. v. Bigelow, 16 Wend. 28; Winsor v. Pratt, 2 B. & B. 650; Kenworthy v. Scofield, 2 B. & C. 945; Smart v. Prujeau, 6 Ves. 560.)
If this view is correct, it seems unnecessary to notice some of the other points supposed to arise in this case. It is said the assignment was void, because it authorized a sale of the prop
Willard, Hand, Cady and C. L. Allen, Justices.]
I think the judgment should be reversed and a new trial granted.
Judgment reversed.