141 Mass. 257 | Mass. | 1886
The case presented involves the discussion of two questions:
1. Whether the trustees under the deed of assignment made to them for the benefit of Charles W. Copeland and Company had power to allow further time for creditors to become parties thereto by more than one writing indorsed on the deed.
2. If they had such power, whether it was well exercised after the first extension had been made to January 24, 1884, by the further extension of time until August 26,1884, indorsed in writing on the deed on May 5,1884. Since this time, the subsequent extensions have been made, each before the expiration of the time previously limited, so that there can be no question as to their formal regularity if the second extension was proper.
It is the contention of the creditors who executed the deed on or before January 24, 1884, that the power of extension expired on that date, and that the attempted extensions subsequently made are invalid, both for want of authority to extend, and by reason of non-compliance with the terms of the deed of assignment in the mode adopted.
It cannot be controverted that, when the terms of an assignment of the nature of that here in question explicitly confine its operation to those creditors only who shall become parties thereto within a limited time, the disposition of the courts in this Commonwealth has been more strict than that of the English courts in treating the time thus fixed as of the essence of the contract, and in refusing to creditors the privilege of acceding to or executing the deed after such time has elapsed. While this is conceded in First National Bank of Easton v. Smith, 133 Mass. 26, which is the latest case in which the subject is adverted to, the decision of that case is put wdiolly on the ground that it was there impossible for the creditor who had filed his bill four years after the deed of trust was made, praying to become a party thereto, then to give the consideration which the deed called for. Phenix Bank v. Sullivan, 9 Pick. 410. Battles v. Fobes, 21 Pick. 239. Dedham Bank v. Richards, 2 Met. 105. Dunch v. Kent, 1 Vern. 260. Spottiswoode v. Stockdale, G. Coop. 102. Collins v. Reece, 1 Collyer, 675. Watson v. Knight, 19
We have no occasion in the case at bar to review our cases on this subject, or to compare them with those which have been elsewhere decided. The assignment in question contained a provision for an extension of time, the construction of which must control its operation. It is contended that the right to allow further time by “ a writing ” imports only a single act, and no more, and that, the time having been extended to January 24, 1884, this right on the part of the trustees was entirely exhausted; and further, even if an extension by such single act might have been made of sufficient length to include the last extension as actually made, if such extension was reasonable, that it could not be done by a succession of acts. If such be the strict grammatical construction of the phrase “a writing,” it might properly be said that such construction is not to be followed when it would lead to a result at variance with other and apparently controlling provisions or objects of the deed. But the particle “a” is not necessarily a singular term; it is often used in the sense of “ any,” and is then applied to more than one individual object. There is no reason why a construction so limited should be adopted as that which would deprive the trustees of the power to make extensions which the exigencies of the business entrusted to them should require, and which would compel them to determine arbitrarily and in advance when the time should finally expire. The limitation of time is usually inserted to prevent, on the part of creditors, unreasonable delay, and to facilitate the closing up of the estate. It is important to observe, therefore, that this assignment did not contemplate an immediate distribution of the property. The trustees were permitted to carry on the business in manufacturing and selling boots and shoes as long as they deemed prudent, and for this purpose to use the trust funds and trust property. They
It appears that so many complications arose as to the estate and the property assigned that creditors might well be confused in determining whether the plan proposed could be carried through, or whether the estate would be settled finally by some different compromise, or through the Court of Insolvency, and that the various extensions of time have not exceeded what was reasonable under all the circumstances.
Some of the creditors contend that, if the provision on this subject is construed as authorizing repeated extensions, it is fraudulent and void, and that, being an independent clause, it may and should be rejected, while in all other respects the assignment may be sustained. But the right given to the trustees to extend the time within which creditors may become parties, even if it may be exercised more than once, is not indefinite nor unlimited, but is a right thus to extend for a reasonable time,
It is further urged, that, if it be conceded that the time might be extended repeatedly, this could not imply a power to reopen the extension after it had once expired, without any additional extension having been made; that the extensions must be made continuously, and that the power is exhausted if a break therein occurs. It is found that both creditors and trustees, after January 24,1884, when the first extension expired, treated the right to become parties to the assignment as still existing, and the time to do so as extended, although no indorsement in writing to that effect was made on the assignment deed until May 5, 1884. It would be unfortunate if we were compelled to hold that, under such circumstances, the failure to indorse this extension would operate to deprive .those creditors who subsequently signed the deed of their right to do so. Nor can it be said, upon these facts, that the creditors who became parties before January 24 present any strong equitable claims to appropriate the entire trust fund assigned, to the amount, at least, of their respective debts.
But the duty and authority of the trustees to indorse the extension in writing aré intended not so much to prescribe the mode in which the extension shall be made, as to prescribe the method
In the cases referred to, it is deemed that the creditors, by their assent within the time limited, have vested rights to share in the assigned property without further participation, as their agreement inter sese and with other parties to the instrument is that the property shall be divided between those who come in within the time limited. But where the agreement authorizes an extension, it is also true that they have agreed to share with all who may come in within the time as it may be extended by the trustees in the proper exercise of their authority.
It is found that the failure to indorse the second extension before May 5 was inadvertent, that it had always been the desire and intention of the trustees and debtors, whenever they have had the subject in mind, to keep the trust indenture open to admit all creditors who might wish to come in and participate, and that, from the date of the trust deed up to the time of the hearing by the master, in dealing with creditors relative to becoming parties thereto, the trustees and debtors always acted on the assumption that it was open for this purpose, and believed that it was so open. When power to extend the time of proof is given to carry out the objects of the trust, and to achieve
The questions whether the trust shall be declared closed, and whether the trustees shall be ordered now to distribute the fund, are not presented upon the evidence as it has been taken.
Decree accordingly.