7 Paige Ch. 272 | New York Court of Chancery | 1838
There is no ground whatever for the dissolution of the injunction, so far as it relates to the judgment debtors. The motions as to them must therefore be denied with costs. So far as relates to them also, and
The only objection to the assignment of T. Darling which is deserving of consideration, is the express trust contained therein to mortgage the real estate assigned for the benefit of creditors, if the assignees think proper to do so, instead of selling the same. The express power to sell on credit, is a power which is usually implied in trusts of this description, and it is not a violation of the provisions of the revised statutes relative to uses and trusts. Neither does the creation of such a trust tend in any manner to delay or hinder the creditors of the assignor in the collection of their debts. For if the assignees do their duty, they will not sell the property on credit without obtaining therefor the diiFerence in value between a sale for cash and a sale upon credit. And the creditors, should they think proper to do so, have a right to insist that such securities should be immediately converted into money and applied towards the satisfaction of their respective debts, or as soon as they shall deem it for their interest to have it done. This court, therefore, upon a bill filed by the creditors to carry the trusts of the assignment into execution, could probably obtain the cash value of the assigned property by a sale of such securities, as readily if not more so than if the fund remained in the condition of real estate ; particularly if it was property in the country, or unimproved lithographic cily lots which would not soon be wanted for building purposes. The bonds and mortgages of responsible purchasers of such property would probably be worth more to capitalists than the land itself; as they would then have the personal responsibility of the purchasers in addition to the security of the land.
But the express trust, which is also contained in this assignment, to mortgage the assigned property for the benefit
In regard to the application for a receiver it is perfectly immaterial whether this assignment can or cannot be sustained as a power in trust; for if it is good as a power in trust the legal estate is still in the judgment debtor; and a receiver is necessary to collect and preserve the rents and profits of the premises until the title of the assignor shall be divested by the execution of the power in trust, if that power is valid. Upon that point I give no opinion at the present time, as I wish the benefit of a more full argument of that question at the hearing, before I attempt to decide the same. In the mean time I will endeavor to make such an order in the premises as will not deprive the trustees of any right they may derive from the execution of the power, if it is valid. A receiver must therefore be appointed of the rents and profits of the real estate assigned which is situated within this state, with liberty to lease the premises for terms not exceeding one year. And the tenants must attorn to such receiver and pay over to him the rents already due or to become due from them respectively; which leases the assignees must give their assent to, if required by the tenants. The assignees must also deliver over to the receiver, on oath before the master, all the monies received by them for the rent of the premises, except such as had been received by the assignor himself before the commencement of this suit; or which the assignees had paid out in pursuance of the trust before that time. And the receiver must deposit all rents received by him, from time to time, in the trust company, to accumulate until the further order of the court, after deducting his charges and commissions. The reference must be to the same master who appointed the receiver in the case of Selden, if he is still in office.
Where a deed or instrument is declared void by statute on account of some illegal or fraudulent provision contained therein, all the provisions of such deed or instrument must fall together. But the provisions of the revised statutes which I have been considering do not declare the instrument creating the estate void, so as to render other provisions in the same instrument absolutely inoperative. It is merely declared that where the estate is granted upon an unauthorized trust no estate whatever shall vest in the trustee ; and I do not at present see any legal objection to the trust as to the personal property in the hands of the trustees in this case. The injunction, so far as relates to that, is therefore dissolved ; but without prejudice to the rights of the complainants, even as to that part of the trust fund, upon the final hearing. The costs upon these cross applications, as between the complainants and the assignees, are not given to either party as against the others.