Wilkes & Fontaine v. Ferris

5 Johns. 335 | N.Y. Sup. Ct. | 1810

Per Curiam.

This is a plain case. There is no colour or ground for the suggestion of fraud. Cheriot might lawfully prefer one set of creditors to another. The whole legal estate of the property specified (and the sugars in question were part of that property) vested in the plaintiffs. The object was lawful and just, and openly and fairly carried into effect. The goods in the storehouses were actually delivered, at the time, by the delivery of the keys of the stores ; and the sugars were delivered by the delivery of Sebring’s receipt, which was the regular documentary evidence of title, and gave the plaintiffs the command of the sugars.

It would be a waste of time to take notice of all the . . . • , ,-1 • cases which were cited, or which support this assignment. That of Estwick v. Caillaud (5 Term Rep.- 420.) is very much in point, and fully establishes the plaintiffs’ claim. This was not, in fact, a general assignment of all Cheviot's estate; for though the words, in one place, be general, yet the assignment immediately goes on to specify, by a reference to the schedules annexed, the specific articles of property assigned; and it therefore could operate only upon the articles specified ; for as the court said, in Munra v. Alaire, (2 Caines, 327.) if a general clause be followed by special words, which accord with the general clause, the deed shall be construed according to the special matter. Cheviot may have had a resulting trust, after the purposes for which the assignment was made were satisfied j but such residuum of interest was not the subject of sale on Ji. fa. (Scot v. Scholey, 8 East, 467.) The case of a sale of an equity of redemption of a mortgage of lands, is not at all applicable. Such a residuary interest necessarily arises in every case where property is assigned in trust to pay debts, or to satisfy other specified objects; but unless the assignment be merely colourable, and made for the sake of the resulting trust, it is not void.

The plaintiffs must have judgment.

Judgment for the plaintiffs -