11 Barb. 399 | N.Y. Sup. Ct. | 1851
By the Court,
At the time the revised statutes were adopted, it was well settled that where land was purchased in the name of one person and the consideration was
Willard, Hand and Cady, Justices],
I am aware that the chancellor intimated in Brewster v. Power, (10 Paige, 562,) that the land in which there is a resulting trust in favor of creditors can not be sold on an execution in favor of the creditors. But the case did not call for a decision of the question; and the contrary was expressly held by the supreme court in Wait v. Wait, (4 Denio, 439.) If the estate be a legal- estate, by operation of the statute, it is subject to all the incidents of such estate. Before the revised statutes, such estate could be sold on execution against the cestui que trust. (Foote v. Colvin, 3 John. 216.) If it was a legal estate for that purpose, it must have a descendible quality, and must be recognized as a legal estate in a court of law.
The defendants are not protected by the 54th section, for they purchased with full notice of the trust, and without parting with any new consideration.
The learned judge did not decide that an equitable defense could be made to a legal demand, and that question does not properly arise in this case. It is manifest that the proper parties are not before the court to take an account between the heirs of Catherine Reid the lunatic and Thomas Reid the committee. The defendants did not ask leave to amend the pleadings in this action, nor that the case should stand over to add parties. It is therefore unnecessary to say whether the pleadings in this cause could have been so moulded as to take the desired account. Nor was there any question on which the defendant asked to go to the jury; nor was the judge asked to dismiss the action as to one or more of the defendants. The •intimation that an account should be taken in a cross-action, in which all persons interested should be made parties, was a proper suggestion, and is hardly the subject of an exception.
On the whole I am satisfied that the cause was properly disposed of at the circuit.
Judgment affirmed.