text:
    Brownell vs. Curtis and others.
    Where the complainant filed a creditor’s bill against his judgment debtor, and made the copartner of such judgment debtor, and a third person who was a debtor to the firm, parties defendants, to reach the interest of the judgment debtor in the copartnership effects, and alleging that the debtor Of the firm had been released from his debt without payment, for the purpose of defrauding the complainant; and the debtor of the firm pleaded in bar to all the discovery as to his indebtedness, &c. that before the filing of the bill, the firm being insolvent, the copartners assigned all the copartnership property and effects to him and another person, as trustees for the benefit of the creditors, and such debtor also put in an answer in bar to the whole relief sought by the bill; Held, that the discovery being proper, if the complainant was entitled to relief upon the case made by the bill, the plea and answer could not stand together, and that such answer overruled the plea.
    And the copartner of the judgment debtor having pleaded in bar tó the whole , discovery and relief sought by the bill, that the firm was insolvent, and that after the alleged discharge of the debt due to the copartnership and before the filing of the complainant’s bill, the copartners assigned all the co-partnership property and effects to the alledged debtor of the firm and another person, for the benefit of the copartnership creditors, and that the as- • signed property was insufficient to pay such creditors; Held, that the voluntary assignment by the copartners did not transfer to the voluntary assignee the right to recover the debt which had been fraudulently released by the assignors ; and that the plea was bad, as it did not show that the co-partnership would have been insolvent if this debt had not been fraudulently released, nor show that this defendant had paid the amount which as between him and his copartner, the judgment debtor of the complainant, he had agreed to pay for the goods put into the firm by such judgment debtor, as stated in the complainant’s bill.
    Upon a bill for discovery and relief, the defendant may answer and make the discovery sought by the bill, and may demur as to the relief only.
    And in cases where the complainant is entitled to the relief sought by the bill, but where he has not the right to a discovery from the defendant of the facts upon which the claim for relief depends, because the discovery may criminate the defendant, or subject him to a forfeiture, or will be a breach of confidence which some principle of public policy does not permit, the defendant may answer as to the relief and demur as to the discovery sought by the complainant.
    But where the same principle, upon which the demurrer to the discovery of the truth of the allegations contained in the complainant’s bill is attempted to be sustained, is equally applicable as a defence to the relief sought by the bill, the defendant cannot demur to the discovery, only, and answeras to the relief.
    Nor can a defendant plead any matter in bar of the discovery only sought by the complainant’s bill, where the matters thus pleaded would be equally available as a defence to the relief also.
    Where the defendant’s plea, or demurrer, as to any part of the discovery sought by the complainant’s bill, is accompanied by an answer, and the complainant excepts to such answer before the plea or demurrer has been argued and disallowed, he admits such plea and demurrer to be good ; and if he after-wards attempts to set down the plea or demurrer for argument, the defendant may apply to strike the cause from the calendar.
    But as the exceptions to the answer are not before the court upon the argument of the plea, or demurrer, that is not the proper time to raise the objection that the complainant has admitted the validity of the plea, or demurrer, by filing exceptions to the answer which accompanied the same.
    As a general rule no one, by his mere voluntary assignment, can transfer to his voluntary assignee a right of action which he does not himself possess. And where an insolvent makes a fraudulent transfer of his property to defraud his creditors, or voluntarily releases his debtor from liability with the same fraudulent intent, so as to deprive himself of the right to reclaim the property sold, or to recover the debt released, he cannot by a merely voluntary assignment of his property and effects to a trustee, for the benefit of his creditors generally, or of certain preferred creditors, give such voluntary trustee the right to reclaim the property sold, or to recover the debt so released.
    Nor will such voluntary assignment deprive a creditor who has exhausted his remedy at law against the fraudulent debtor of the right to file a creditor’s bill to reach the property in the hands of the fraudulent vendee, or to recover the debt which has been thus fraudulently released.
    Where the testator or intestate, in his life time, has made a fraudulent transfer of his property to defraud his creditors, and afterwards dies insolvent, his executors or administrators may, under the provisions of the revised statutes, recover the property from the fraudulent grantee, for the benefit of the creditors of the decedent.
    1843. April 4.
    This was an appeal from a decretal order of the vice chancellor of the seventh circuit, allowing the pleas of the several defendants to the complainant’s bill. The complainant was a judgment creditor of Curtis,, one of the defendants, as to whom this was an ordinary creditor’s suit to reach his choses in action and other property and equitable interests. Another object of the bill, however, was to reach his interest in the property and effects of a copartnership which had existed between him and the defendant J. Marsh. And the complainant among other things alleged that the copartners, for the purpose of defrauding their creditors, built a dock and made other improvements upon a lot, the legal title to which was in the defendant E. C. Marsh; that Curtis and J. Marsh failed in November 1837, at which time the defendant E. C. Marsh owed them about $5000, which debt was cancelled and discharged without actual payment, for the purpose of defrauding the complainant; and that at the time of cancelling that debt various pretended and unfounded claims were brought forward and allowed as offsets against such debt. The defendant E. C. Marsh answered the bill, except as to so much thereof as sought a discovery of the interest of the other two defendants in the lot upon w'hich the dock and other improvements had been made by them, his indebtedness to them at the time1 of their failure, and the alleged fraudulent cancel-ling and discharging of that indebtedness. And, as to that part of the .discovery, he pleaded in bar, that the debt due from him to Curtis & Marsh at the time of their failure, was due to them as copartners and not otherwise; that on the 21st of November, 1837, and ever afterwards, the firm was insolvent; and that on the 30th of December in the same year, and before the filing of the complainant’s bill, Curtis & Marsh assigned all their copartnership property and effects to himself and D. Wright, as trustees, for the benefit of the creditors of the firm. To the answer accompanying this plea the complainant excepted for insufficiency and impertinence.
    To the whole discovery and relief sought by the bill the defendant Curtis pleaded that in January 1838, and for a long time previous thereto and ever since, he was and had been insolvent; and being so insolvent on the 5th of January, 1838, at the instance and request of the complainant, he assigned all his property, of every description, to J. W. Burnham in trust for his creditors ; and that the whole assigned property was insufficient to pay the debts for which it was assigned. He also pleaded in bar to the whole bill, that the firm of Curtis & Marsh, on the 30th of December, 1837, and for a long time previous to that date, was insolvent, and had ever since been so insolvent y and that on that day they assigned all the copartnership property and effects to E. C. Marsh and D. Wright, in trust for their creditors, and that the assigned property was insufficient to pay the debts of the firm.
    And the defendant J. Marsh pleaded in bar to the whole discovery and relief sought by the bill, the same matters which were stated in the last plea of Curtis.

      M. T. Reynolds, for the appellant.

      D. Wright, for the respondents.
   The Chancellor.

The pleas of the several defendants are not only several, but depend for their validity upon distinct considerations. It is necessary, therefore, to consider each plea separately.

The defendant E. C. Marsh puts in an answer in bar to the whole relief sought against him, by the bill, and by his plea seeks to avoid the discovery of the facts upon which the complainant’s right to relief depends. It appears to be settled that, upon a bill for discovery and relief, the defendant may answer and make the discovery sought and demur to the relief only. (Hodgkin v. Longden, 8 Ves. 3. Todd v. Gee, 17 Idem, 273. Welf. Eq. Pl. 133.) And there is also a class of cases in which the defendant may refuse to make a discovery as to particular charges contained in the bill, although a demurrer could not have been sustained as to the relief which the complainant intends to found upon those charges. Those, however, are cases in which the discovery asked for would tend ,to criminate the defendant, or subject him to a penalty or forfeiture, or would be a breach of confidence which some principle of public policy does not permit; and where the complainant may be entitled to the relief sought, upon the matters charged in the bill, although the defendant is not bound to make a discovery to aid in establishing the facts. (Attorney General v. Brown, 1 Swanst. Rep. 294. Dummer v. The Corporation of Chippingham, 14 Ves. Rep. 225. Hare on Disc. 5.) But where the same principle upon which the demurrer to the discovery of the truth of certain charges in the complainant’s bill is attempted to be sustained, is equally applicable as a defence to the relief sought by the bill, the settled rule of the court is that the defendant cannot be permitted to demur as to the discovery only, and answer as to the relief. (Morgan v. Harris, 2 Bro. C. C. 124. Waring v. Mackreth, For. Exc. Rep. 124. Story's Pl. 254, n. 1. Welf. Eq. Pl. 133.) This general rule is equally applicable to the case of a plea ; and the defendant cannot plead any matters in bar of the discovery merely, when the matters thus pleaded would be equally valid as a defence to the relief. The vice chancellor therefore erred in allowing this plea of E. C. Marsh to the discovery only; and the order appealed from must be reversed in that respect.

It appears, however, in this case, that before the argument of the plea the complainant had filed exceptions to the answer for insufficiency. The defendant therefore might have moved to strike the case from the calendar, when this plea was set down for arguniént, on the ground that the filing of exceptions admitted the goodness of the plea. The rule is thus laid down by L'ord Redesdale, in his very valuable treatise on Equity Pleading : 66 Where a defendant pleads or demurs to any part of the discovery sought by the bill, and answers likewise, if the complainant takes exceptions to the answer, before the plea or demurrer has been argued and disallowed, he admits the plea or demurrer to be good ; for unless he admits it to be good it is impossible to determine whether the answer is sufficient or not.” (Mitf. Pl. 317.) In the case of Boyd v. Mills, (13 Ves. 85,) where the demurrer was set down for argument after exceptions had been filed to the answer, the application was to strike it from the calendar 5 and the court gave the complainant leave to withdraw the exceptions, on payment of the costs of the motion, and to again except if the demurrer was allowed. And in the case of Darnell v. Reyney, (1 Vern. Rep. 344,) where exceptions were filed to the answer before the argument of the plea, it appears by Mr. Raithby’s note that the proceedings upon the exceptions were stayed until the argument of the plea. It is evident, therefore, that this is a question which cannot arise upon the hearing of the plea or demurrer; as the exceptions are not properly before the court upon such a hearing.

It does not appear in this case which party put the cause upon the calendar and noticed it for hearing before the vice chancellor. If it was done by the complainant it would of course be deemed a waiver of the exceptions previously filed. And if by the defendant, he must be considered as having treated the exceptions as a nullity. In this stage of the proceedings, therefore, the court must treat the exceptions as abandoned by both parties. And the proper course now is to make the same order and decree as if the complainant’s solicitor had not made the mistake of filing exceptions to the answer before the argument of the plea.

The plea of the defendant, E. C. Marsh, is therefore overruled with costs of the hearing in the court below. But under the circumstances I shall not charge this defendant with the costs on the appeal. If the complainant wishes to obtain a further answer as to the matters covered by the plea, or as to any other matter not already sufficient-]y answered, he must file his exceptions within thirty days ; and the defendant must pay the costs of the argument of his plea, and answer the exceptions within thirty days thereafter, unless further time for that purpose is given by the vice chancellor.

The first plea of the defendant Curtis was clearly insufficient, as a plea to the whole discovery and relief sought by the bill against him, and ought not to have been allowed. If he is right in supposing that a debt fraudulently cancel-led between the debtor and his creditors, and which such creditors could not have collected themselves after such discharge of their debtor, would pass by a voluntary assignment for the benefit of their creditors, so as to give the assignees a right which the assignors could not have enforced, the plea does not show that such assignees are necessary parties to this suit. But it shows that those assignees alone, or some one claiming as a creditor of the co-partnership under that assignment, are the only proper persons to litigate the question as to the claims of the copartnership upon the defendant, E. C. March. For it is averred in the plea that the copartnership was insolvent at the time of the assignment, and has continued so ever since. This part of the plea is no answer to that part of the bill which seeks for a discovery and satisfaction of the complainant’s debt out of the individual property of Curtis, the judgment debtor. This objection, to the first plea, is attempted to be obviated by the statement of the additional fact, that Curtis was himself insolvent, in January, 1838, when he made an assignment of all his individual property to a trustee to pay his creditors. That averment does not cover the charge, which is distinctly made in the bill, that this defendant has equitable interests, things in action, or other property of the value of $100, exclusive of all prior just claims thereon.

It is true this defendant avers in his plea that he continued to be insolvent from the time of making the last assignment to the time of putting in that plea. But that is no denial of the charge that at the time of filing the bill in this suit, in June, 1839, he had property of the value of $ 100 and more, exclusive of all prior liens thereon. The assignment only transferred the property that the defendant had when that assignment was made, not that which may have been acquired since. And an averment that the defendant is insolvent is not equivalent to a denial that he has any property. For he is insolvent if he has only property enough to pay ninety-nine cents in the dollar of his debts. He may therefore have property to the amount of thousands of dollars, which ought to be applied to the payment of his honest creditors, and still be insolvent.

The second plea of this defendant, although pleaded in bar to the whole discovery and relief, in fact only applies to so much of the bill as seeks to obtain a satisfaction of the complainant’s judgment out of this defendant’s interest in the copartnership business j and is therefore, defective in substance. For that reason it is unnecessary to inquire whether the defendant was authorized to plead two distinct pleas in bar of the whole discovery and relief sought by the bill. The decretal order of the vice chancellor must be reversed, with costs, as to the pleas of the defendant Curtis ; and those pleas must be overruled with costs. And Curtis must pay the costs, and answer the bill within the thirty days, unless the vice chancellor shall see fit to allow further time for that purpose, upon a proper application to him.

Upon the argument of this appeal, I supposed that the only question which could arise upon the plea of the defendant, J. Marsh, was whether a voluntary assignment, by creditors, of all their property and effects, for the payment of their debts, was sufficient to transfer to the assignee the right to revive and collect a debt once due to the assignors, but which they had cancelled and discharged previous to the assignment, by collusion with their debtor, and with an intention of defrauding their creditors. For the averment in the plea of this defendant that Curtis and Marsh were insolvent at the time of their assignment in December, 1837, is not sufficient to show that the individual creditors of Curtis had no interest in the question as to the fraudulent discharge of the $5000 debt of E. C. Marsh on the 21st of the November previous. The cancelling of that debt may itself have rendered "the firm insolvent; so as to deprive this complainant of the means of obtaining satisfaction of his judgment out of the surplus of the partnership "eEects.

In the case of Bayard v. Hoffman, (4 John. Ch. Rep. 450,) Chancellor Kent appears to have sustained a suit by the voluntary assignees "of an insolvent debtor to reach property xvhich had been previously disposed of by the assignees in fraud of the rights of his creditors. It is evident, hoxvever, from the report of the case, that the question xvas not fully considered by him. And the counsel who argued the cause for the complainants placed their right to recover in that case upon the ground that they were bona fide purchasers of the stock, without notice of the previous sale without consideration. It is not improbable therefore that my learned predecessor overlooked the distinction which exists between a voluntary assignment, by the fraudulent grantor himself, and an assignment by operation of law under the bankrupt acts. In the case of Osborne v. Moss, (7 John. Rep. 161,) the supreme court of this state decided that where the intestate in his lifetime had made a voluntary transfer of his property to defraud his creditors, his administrator could not impeach the validity of such transfer, although such administrator was himself one of the creditors ; but that the remedy of the creditors of the decedent was by a suit against the fraudulent grantee, as an executor de son tort. A similar decision was made by the court of appeals, in Maryland, in the case of Dorsey v. Smithson, (6 Har. & John. Rep. 61.) The revised statutes of this state, however, have taken away the remedy which the creditor previously had against the fraudulent grantee, to charge him as executor in his oxvn wrong, and have tranferred it to the rightful executor or administrator of the decedent, as the trustee for the creditors. (2 R. S. 449, § 17.)

It is a general rule of law, that a person cannot, by any voluntary act of his own, transfer to another a right which he does not himself possess. And where an insolvent debtor has made a fraudulent transfer of his property, or has discharged his own debtor from liability for the purpose of defrauding his creditors, so that he cannot reclaim the property, or sustain a suit for the debt in his own name, I think he cannot, by an assignment which is wholly voluntary on his part, take away the right of his creditors generally, to set aside the fraudulent transfer, or to recover the debt fraudulently discharged, and transfer that right to his own assignee, for the benefit of preferred creditors j or even for the benefit of all his creditors equally. The plea of the defendant S. Marsh, therefore, contains no sufficient defence to any part of the discovery or relief which is sought by the complainant’s bill; and it should have been overruled on that ground.

There is also another objection to this plea, which I think renders it invalid, as a plea to the whole discovery and relief to which the complainant is entitled, if all the matters stated in the bill are true. The bill charges', in substance, that when Curtis and Marsh entered into co-partnership, the latter agreed to pay Curtis for one half of the stock and goods then on hand ; and that but a small part of the amount thus due has been paid. If so, although the firm afterwards became insolvent, Marsh is still an individual debtor of Curtis ; and the complainant is entitled to reach that debt by an ordinary creditor’s bill, to which the debtor of Curtis is made a party. The plea of this defendant does not state that he is individually insolvent and unable to pay that debt. Nor is there any allegation in the plea of this defendant that Curtis had assigned his interest in that indebtedness to any other person previous to the commencement of this suit.

The decree of the vice chancellor allowing the plea of í J. Marsh must therefore be reversed with costs ; and a decretal order must be entered overruling that plea with costs, and requiring the defendant J. Marsh to pay the costs and put in his answer to the bill within thirty days, unless a further time is allowed to him by the vice chancellor for that purpose.

Decretal order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Bibby and others vs. Myer.
    1843. April 4.
    Where a will and codicil had been established by the decree of a surrogate, and some of the heirs and next of kin of the decedent who had been heard before the surrogate appealed from so much of his decree as declared the codicil duly executed and admitted the same to record; Held, that such appeal did not deprive the surrogate of the power to set aside the decree for irregularity, as to one of the heirs at law and next of kin who had not been duly cited to attend upon the hearing before the surrogate.
    A person having a common interest with the appellant in an appeal from the sentence or decree of a surrogate who comes in as an intervener and adheres to the appeal, will not be permitted to call in question the correctness of such sentence or decree in a part thereof which is not appealed from.
    Whether the service of the citation to the heirs and next of kin, to attend the probate of a will, upon one of them who is a feme covert, is a sufficient service, without a service thereof upon her husband ; Quoere ?
    Where a will has been established and admitted to be recorded by the surrogate, upon service of the citation upon one of the heirs at law and next of kin, who was a feme covert, without serving it upon her husband, the husband cannot apply in his own name only to set aside the decree; but the application must be made in the name of the husband and his wife jointly, if the proceeding upon the service of the wife only was irregular.
    This was an appeal from a decision of the surrogate of the county of Westchester. Bibby, as one of the executors of H. Van Cortland deceased, applied to the surrogate to prove the will of the decedent, and a codicil to the same, as a will of real and personal estate. He took out a citation to attend the surrogate, for that purpose, directed to the heirs at law and next of kin, and to the husbands of such of them as were femes covert. The citation was duly served upon the heirs and next of kin personally ; and some of them attended and contested the proof of the will and codicil. But Myer, the husband of one of the heirs, who had separated from his wife, was not personally served with the citation, and had no notice of the service on his wife until after the sentence and decree of the surrogate, pronouncing for the validity of the will and codicil, and admitting them to probate and to be recorded. Schermerhorn and wife, who had opposed the proof of the instruments propounded, appealed from so much of the sentence and decree as declared the codicil duly proved, and as admitted such codicil to probate and to be recorded. And during the pendency of that appeal Myer presented a petition to the surrogate to set aside the whole sentence and decree, for irregularity, upon the ground that the citation had not been personally served on him. The executors, and other parties who were interested in establishing the validity of the will and codicil, being cited to attend the surrogate upon that petition, put in an answer stating the pendency of the appealj and thereupon prayed that the petition might be dismissed with costs. The surrogate refused to dismiss the petition, and decided that he would proceed thereon; and the appellants, without waiting for the final decision of the surrogate upon the petition, appealed from the order denying the application to dismiss it.

      W. Silliman, for the appellants.

      R. N. Morrison, for the respondent.
   The Chancellor.

The counsel for the appellants on this appeal is wrong in supposing that the appeal of Sehermerhorn and wife deprived the surrogate of the power to set aside the decree, for irregularity, as to an heir at law who was not a party to that appeal, and who had not been cited to appear upon the hearing before the judge a quo. In the first place, the appeal was only from so much of the sentence and decree as related to the codicil, and did not call in question the validity of the original will as a will of real and personal estate. And Myer, by coming in as an intervener and adhering to that appeal before the circuit judge,,could not have been permitted to call in question the validity of the surrogate’s decree as to the original will. If he merely wished to question that decision upon the testimony which had been produced before the surrogate, he would still have been compelled to institute a new appeal from the part of the decree relative to the will.

Again ; the setting aside of the decree as to Myer, for irregularity, would only prevent it from being operative so far as it affected his rights and the rights of his wife. For, as between those parties who had appeared and contested the validity of the will and codicil before the surrogate, the sentence and decree must of course be final until it is reversed upon appeal. And all that the surrogate could do, in any event, would be to open the decree so as to permit Myer and wife to come in and contest the validity of the will and codicil, so far as it affected or altered her rights, as one of the heirs at law of her brother in reference to the real estate, and as one of his next of kin in reference to the personal estate.

But upon an examination of the statute, I have arrived at the conclusion that the surrogate has no right to interfere with the sentence and decree of his predecessor, in this case, upon the application of Myer alone; who was not one of the heirs at law or next of kin of the decedent. And the petition should therefore have been dismissed. The statute directs the citation to be served upon the heirs and next of kin of the testator, if they can be found. But it does not in terms require it to be served upon the husbancf, as well as upon the wife, where the heir and next of kin is a feme covert. The wife is in fact the real party whose rights, as heir and next of kin, the legislature intended to protect by requiring the notice of the proceedings to prove the will. And if a service of the citation upon the husband as well as the wife, was necessary in this case, to make the proceedings regular as to her, which is at least doubtful, the application to set aside the sentence and decree of the surrogate, for irregularity, should have been made by the husband in her name as well as in his own name.

The surrogate therefore erred in supposing that he was authorized to proceed upon this petition to set aside the sentence and decree of his predecessor, for irregularity. The order appealed from must be reversed, and the petition of the respondent dismissed with costs. But the dismissal of his petition must be without prejudice to any application which he may be advised to make in the names of himself and his wife, after such costs shall have been paid.


text:
    Boardman & Perry vs. Halliday and others.
    Where a debtor in failing circumstances made an assignment of all his prop, erfey to trustees in trust to apply the proceeds to the payment of certain preferred creditors, so far as should be necessary, and to apply the residue of the proceeds to the payment of his other creditors in such order of priority as the trustees should think proper, and if the fund was insufficient to pay all such debts, then to apply the same in payment of such parts of such debts as the trustees should judge most just and equitable; Held, that the assignor could not legally delegate to the trustees the power to give preferences at their discretion; and that the assignment was fraudulent and void * as to creditors who did not assent to the same.
    An assignment of the property of a debtor which does not declare the uses to which the property is to be applied, but reserves to the assignor the right to give future preferences, is fraudulent and void. And an assignment which empowers the assignees to give future preferences is also fraudulent and void ; as the same objection in principle exists to the assignment in both cases.
    Where the office of sheriff devolves upon his under-sheriff, by the death,'resignation, or removal from office of the sheriff, the general deputies of the sheriff are not authorized to discharge the duties of general deputies of the under-sheriff upon whom the office has devolved, without a new appointment from him. And such new appointment must be in wilting, and must be recorded in the office of the county clerk, and the deputy must take the oath of office, in the same manner as upon his original appointment by the sheriff.
    Where there is but one office there cannot be one officer de jure, and another officer de facto, in possession of the office at the same time. And when the office of sheriff devolves upon the under-sheriff by the resignation of the sheriff, and such under-sheriff is in the exercise of the duties of the office, a deputy defacto of the sheriff who resigned cannot, as such, do any official act which will be valid as to third persons.

      1843. April 4.
    To make the acts of a deputy sheriff de facto valid, as to third persons, it must appear that he was in fact in the exercise of the office of deputy to the then sheriff, and who was exercising the office of such sheriff.
    Where the office of sheriff devolves upon the undersheriff, and the general deputies of the former sheriff continue to act as the deputies of such under-sheriff, and with his knowledge and assent, but without a new appointment, it seems they will be considered as deputies de facto of such under-sheriff, so as to make their acts as such deputies valid as to third persons. In such a case a parol appointment by the under-sheriff may he inferred, so as to constitute them deputies de facto of such under-sheriff.
    The bill in this cause was filed by the complainants as judgment and execution creditors of Halliday, one of the defendants, to set aside an assignment of his real and personal property to Decker, Hammond, and Campbell, the other defendants, as fraudulent; and as forming a cloud upon the title to the property on which the complainants had obtained a lien by the docketing of their judgment, and the levy of their execution. In October term, 1837, the complainants recovered a judgment against Halliday in the supreme court, for about $2700, which was docketed on the 1st of the same month. An execution was taken out on the same day and delivered to J. J. Poppino, who was acting as a deputy sheriff of the county of Steuben ; who levied the same upon the personal property, which had been assigned by Halliday to the other defendants in this cause, previous to the recovery of the judgment. The assignees claimed the property under the assignment; and also insisted that Poppino was not a deputy sheriff and had no right to execute the writ of fieri facias which had been issued by the complainants and directed to the sheriff of that county. The question whether the execution was properly levied, so as to create a lien upon the personal property, depended upon these facts, which were agreed upon by the parties : J. T. Andrews was elected sheriff in the fall of 1834, for three years, commencing on the 1st of January thereafter. He assumed the duties of the office at that time, and was duly qualified, and continued to act as such sheriff until the 1st of January 1837, when he resigned 5 and J. H. Stone, who was then under-sheriff of the county, thereupon discharged the duties of the office of sheriff for the remainder of the three years for which Andrews was elected. Poppino was appointed a-deputy sheriff of the county of Steuben, by Andrews, in January, 1835, and was duly qualified. And he continued to execute the duties of the office until the 1st of January, 1838; without receiving any new appointment, from the under-sheriff, after Andrews had resigned. The "execution came into the hands of Poppino, and was levied upon the assigned property, while he was thus executing the duties of a deputy of the sheriff of the county of Steuben, after the resignation of Andrews.
    The only objection to the assignment, and which the complainants insisted rendered it fraudulent and void, was an objection appearing upon the face of the instrument. The assignor made a general assignment of all his property, purporting to .convey to the assignees a large amount of real and personal estate, in trust to sell the same for the best price that could be obtained, and as expeditiously as in the opinion of the assignees it could be done without sacrifice, and as would be most beneficial to the trust ■ and to apply the proceeds, in the first place, to pay certain preferred creditors in' the order of priority mentioned in a schedule annexed to the assignment. After paying such preferred debts the assignees were authorized, by the assignment, to apply the residue of the proceeds of the property to pay all the other debts of the assignor, in such order of priority as the assignees should deem proper ; and if the residue of the fund was not sufficient to pay all such debts, the assignees were to apply it to the payment of such and such parts of those debts as they should judge most just and equitable. The cause was heard upon bill and answer as to the assignees, in connection with the stipulation as to the facts relative to Poppino’s authority; and upon the bill taken as confessed as to the defendant Halliday, the judgment debtor.

      Ira Harris, for the complainants.
    The provision in the assignment which authorizes the assignees to give preferences at their discretion, renders the assignment fraudulent and void as against the complainants. (Wakeman v. Grover, 4 Paige, 41. S. C. in court of errors, 11 Wend. 203, 221. Ames v. Blunt, 5 Paige, 17.) The assignment being fraudulent on its face cannot be rendered valid by extrinsic evidence. The fact therefore that the property assigned is insufficient to pay the preferred debts cannot give validity to the assignment. It is apparent from the terms of the assignment, that the parties intended to do an act, the effect of which would be to defraud creditors. The complainants are not precluded from avoiding the assignment by reason of their being included in the class of preferred creditors. The assignment cannot be legal and valid as to one creditor, and fraudulent and void as to another. The officer to whom the execution was delivered' was duly qualified to execute the same. He was duly appointed a deputy sheriff of Steuben. (1 R. S. 379, § 73.) By the resignation of the sheriff a vacancy was created in the office of sheriff, during which vacancy the deputies appointed by the sheriff,«possessed the powers and might perform the duties of their principal. (1 R. S. 117, § 7.) The vacancy may be filled by the appointment of the governor 3 (1 R. S. 21, § 49 ;) or by election. (Idem, 128, § 8.) And until filled in one of the modes mentioned, the vacancy continues and the powers of the deputy remain. In this case no appointment was made by the governor, and no election had been held. Of course the office of sheriff remained vacant and Poppino remained in office as deputy. The under-sheriff during the vacancy executes the office óf sheriff so far as relates to duties which cannot be performed by deputy; but he is not sheriff, and the office is regarded as vacant. (1 R. S. 379, § 72.) The assignment being fraudulent and void as against the complainants, they can hold the property levied on by virtue of their execution. If the execution was not issued to the proper officer, the complainants are nevertheless entitled to have the assignment set aside. As it is a fraudulent obstruction to the lien of their judgment upon the real estate of their debtor, and as such it will be removed by this court. The assignees ought to be charged with the costs of this suit personally. At least the costs should be paid out of the assigned estate.

      L. H. Sandford, for the assignees.
    The execution issued upon the complainant’s judgment not having been returned, a bill to reach the equitable property could not be filed. The complainant has not exhausted his remedy under his judgment, he should have sold the property levied upon. The real estate being incumbered to a greater amount than its value previous to the assignment, and the entire personal property being insufficient to indemnify the assignees, the complainant shows no equity and no ground for relief. The deputy sheriff had no authority to execute the process. The assignment is valid. The clause objected to as giving the assignees power to make a just and equitable distribution among the creditors of the third class, means an equal distribution and such as the chancellor would enforce. The assignees are entitled to a full and perfect indemnity for all costs, assumptions, liabilities and losses, and to a just and reasonable compensation for their services.
   The Chancellor.

The question as to the validity of such an assignment as this, is no longer an open question in this court. In the case of Wakeman v. Grover, (4 Paige’s Rep. 41,) this court decided that a debtor could not put his property beyond the reach of his creditors at law by assigning it to trustees to pay debts, without settling the rights of creditors under the assignment; leaving it to the assignees to give such future preferences in payment as they might deem proper. It is true that ground of objection to the assigument of Grover & Gunn was not distinctly passed upon by the majority of the members of the court for the correction of errors, when that case was brought there by appeal; as that court wished to settle definitively another principle of great importance to the rights of creditors, which had for the first time been distinctly decided in this state by the court whose decision was then under review. But in the opinion of Mr. Justice Sutherland, which I have no doubt had been seen and approved by his associates on the bench of the supreme court, Chief Justice Savage and Justice Nelson, he distinctly sustains the decision of this court upon the question now under consideration. He says, “ It has repeatedly been decided that an assignment which does not declare the uses, but reserves to the assignor the power of subsequently doing it, is fraudulent and void. And if" the assignor cannot reserve the power to himself of giving preferences, he certainly cannot legally confer it upon his assignee; the same objection in principle exists in both cases.” In the subsequent case of Barnum v. Hempstead, (7 Paige’s Rep. 568,) which was very much like the present, in this respect, this court again decided that an assignment of a debtor’s property for the payment of his debts, and which conferred upon the assignee a power to give future preferences among a portion of the creditors, was fraudulent and void. One very serious objection to such an assignment is that none of the creditors among whom such preferences are to be given, can ever know what their rights are, under the assignment, where the fund is insufficient to pay all the debts; so as to render it safe for them to attempt to assert those rights in any suit or proceeding either at law or in equity. For if any one of such creditors should institute a suit to compel the assignees to account, and pay over the trust fund as directed by the assignment, such assignees would unquestionably exercise the discretion of preferring other creditors to him. .And no prudent man would subject himself to the costs of a fruitless litigation, under such an assignment for his pretended benefit. The effect of the assignment therefore is to place the creditors directly within the power of the assignees, and to compel them to acquiesce in such terms as the assignees may think proper to prescribe, as the only condition upon which they can get any part of the proceeds of the property of their debtor. And it is clearly a fraud upon the creditors, and must necessarily delay and hinder them in the collection of their debts, to place them in that situation.

Many of our most enlightened judges have regretted that the principle of permitting an insolvent to make a voluntary assignment of his property, and to give preferences in any way, should ever have been adopted. Judge Holman, of the district court of the United States for Indiana, speaks of it as <c that most iniquitous principle of the common law-recognized in most of the states, which authorizes an insolvent debtor to prefer one creditor over.another of equal or even superior merit.” Judge Judson, of Connecticut, refers to it as a principle constituting the insolvent an agent to obtain money from one and bestow it upon another, at his will and pleasure.- And Judges Story and Baldwin, of the supreme court of the United States, both condemn the principle of giving such' preferences, not merely as inequitable and unjust as it regards creditors, but as injurious in its effects upon the community. The district attorney of the United States for the district of Ohio, in his communication to the judiciary committee of the senate of the United States, says, one of the greatest evils growing out of the failures and distress of the past, has been the unjust and fraudulent assignments made by debtors in failing circumstances, by which certain creditors acquire preferences over others equally worthy; that a very large proportion of the real and personal estate in his district has, under the operation of those assignments, been tied up, the debtor remaining in possession, carrying on his business as usual, and appropriating all the proceeds of his property and earnings to the payment of some one debt to the exclusion of all others ; and that there is no limit to the fraud and injustice perpetrated by such means. (See Rep. of Jud. Committee on Bankrupt Law, Feb. 3d, 1843.) This is indeed strong language ; but it is merely a highly colored picture of some of the evils arising from the sanction which the courts have given to an erroneous principle, as injurious to the just rights of creditors as it is dangerous to the morals of the community. I cannot therefore sanction the extension of the principle of giving preferences, in these voluntary assignments, beyond what must be considered as the settled law of the land. And I am not aware that any court in this state has ever sustained an assignment -where the insolvent debtor has not only appointed his own assignee, without the consent of the creditors, but has also invested him with the power of giving future preferences. The fact stated in the answer, that the assignees have ascertained that the assigned property will not be sufficient to pay the creditors whom the assignor has himself preferred, cannot change the character of the assignment. For when the assignment was made, the fact that the property would not be sufficient to pay the preferred creditors was not ascertained, and probably was not supposed to exist. And the assignment itself shows that the assignor contemplated the possibility of there being more than enough to pay all his debts ; as it contains an express provision for the payment of the surplus to him in that event. The failure to realize as much from the assigned property ás was originally anticipated cannot, therefore, render an assignment valid which was void at the time when it was executed.

I think the counsel for the defendants is right in supposing that the office of the deputy sheriff was vacated by the resignation of the sheriff; and that to enable the deputy rightfully to discharge the duties of the office, under the person upon whom the duties of sheriff had devolved by statute, a new appointment should have been made, by the under sheriff, in writing, and recorded in the county clerk’s office and that the deputy should have been resworn, as directed by the statute upon an original appointment by the sheriff. (1 R. S. 379, § 74.) Under-sheriffs, and other deputies of the sheriff, being appointed only during the pleasure of the sheriff, would, by the common law, cease to be such the moment that will was determined, either by the death, removal, or resignation of the person under whom they held the appointment. (Atkins. Sher. Law, 40. Watson’s Off. of Sher. 32.) To remedy this common law difficulty, so far as to provide for the discharge of the duties of the office in case of the death of the sheriff, the statute 3d Geo. 1, ch. 15, § 8, provided for the continuance in office of the deputy, or under-sheriff, until another sheriff was appointed and duly qualified. The revised laws of 1813 contained a similar provision, except that it was confined to the under-sheriff, and did not embrace all the general deputies of the sheriff. (1 R. L. of 1813, p. 420, § 3.) That statutory provision, however, only extended to the case of a vacancy in the office by the death of the sheriff. And in Paddock v. Cameron, (8 Cowen’s Rep. 212,) the supreme court decided that the under-sheriff could not execute the duties of the office where the vacancy occurred by resignation of the sheriff, or by any other cause than his natural death. The 4th section of the act of April, 1827, was therefore passed by the legislature, providing for the discharge of the duties of the office by the under-sheriff in all cases of vacancy ; and'directing the office to be executed by the coroners, where there was no under-sheriff. (Laws of 1827, p. 218.) And the substance of this provision of the act of 1827 was incorporated into the revised statutes, without extending it to any of the other general deputies of the sheriff whose office had become vacant. (1 R. S. 379, § 72.) The section of the revised "statutes which casts the duties of the office upon the under-sheriff, renders the sureties in his bond to the sheriff liable for any default or misfeasance in the office, as a counter security to the sheriff and his sureties who are responsible for the acts of the under sheriff. But no such provision is made as to the sureties of the general deputies ; and the legislature could not have contemplated the continuance in office of all the general deputies of the sheriff,- for whose official acts the under-sheriff and his sureties had never agreed to become responsible to the sheriff. The provision which has been made by the legislature, however, is perfectly just, as well as sensible, upon the supposition that the under-sheriff is to discharge the duties either in person or by deputies appointed by himself; from which deputies he may, if he thinks proper, take security for the faithful discharge of the duties of the office of deputies of himself as the acting sheriff.

It is true there is a general provision of the revised statutes, to which the court was referred upon the argument, which declares that, in all cases not otherwise provided for, each deputy shall possess the powers and perform the duties attached by law to the office of his principal, during a vacancy in such office, and during the absence of his principal. (1 R. S. 117, § 7.) But the restriction of that provision to cases not otherwise provided for, prevents it from reaching the general deputies of the sheriff, whose offices, by the common law, terminate with that of their principal • except as to the completion of acts w'hich he could himself complete after the termination of his office. For as to all other duties of the office, they are otherwise provided for, in those sections of the revised statutes which cast the duties of the office of the principal upon the under-sheriff, or coroner, or person appointed by the first judge.

There is not sufficient in the admission of facts in this case to enable me to say that Poppino was defacto a deputy of the under-sheriff of Steuben county at the time the execution mentioned in the complainant’s bill was levied upon the property in controversy. Where there is but one office there cannot be an officer de jure and an officer de facto, both in possession of the office at the same time. And as the under-sheriff was in the rightful possession of the office of sheriff, a defacto deputy of the former sheriff could not levy an execution, so as to give the complainants any rights. But to make the act valid as to third persons it must appear he was defacto in the exercise of the office of a deputy of the then acting sheriff. By the common law no particular formality was necessary to be observed by the sheriff in making a deputy; and it is said he might be appointed by parol. (Dalt. 457. Atkinson, 31. Watson, 28.) And though the statute now requires the appointment of the deputy sheriff to be in writing and recorded, and that he shall be sworn before he enters upon the duties of his office, I am not prepared to say Poppino might not have been considered a deputy of the under sheriff, in the present case, de facto, so as to render his acts valid as to third persons, if it had distinctly appeared that he was professedly acting as a deputy of the under sheriff, and with his knowledge and consent. For in that case a parol appointment by the under sheriff might be inferred, so as to constitute him the deputy of such under sheriff, defacto. It is probable that the stipulation was intended to go thus far in the present case. But it is merely admitted that he was appointed deputy by the sheriff, who subsequently resigned, and that he continued to act as such deputy after the resignation, under such appointment. And instead of admitting that he acted as the deputy of the under sheriff, or with his assent under an informal appointment, or with his implied sanction, it is stated, in so many words, that Poppino received no new appointment.

The question whether there was any valid levy of the execution is important to the rights of the parties in this case, so far as relates to the property seized by Poppino. For the complainants not having exhausted their remedy at law, by the return of an execution unsatisfied, they can only set aside the assignment, in this suit, so far as it affects the real estate, upon which they have obtained a lien by the docketing of their judgment, and the personal estate upon which the issuing of an execution to the sheriff of Steuben county has given them a lien j that is, the personal property, liable to execution in that county, which remained in the hands of the judgment debtor, or of his assignees, when the execution was delivered to the proper officer to be executed. (Beck v. Burdett, 1 Paige's Rep. 308. Mohawk Bank v. Atwater, 2 Idem, 58. McElwain v. Willis, 9 Wend. Rep. 548.) In this case the defendants state that they have paid off an execution, which was a previous lien upon this personal property for more than its whole value. And if the property is disposed of and converted into money before the complainants can get a lien upon it by the issuing of a new execution, it is probable they may be protected from loss, upon the principle adopted in the case of Wakeman v. Grover, (4 Paige’s Ref. 24.) But if the execution is properly levied upon such property before it gets into the hands of a bona fide purchaser, all that this court can do is to set aside the assignment as fraudulent, and let the law take its course. The defendants therefore are excusable in this case in availing themselves of a technical objection, to the right of the_officer to levy the execution, to avoid such a result.

All that the court can do in the present case is to declare the assignment fraudulent and void, as against the complainants, so far as it purports to assign or convey to the assignees any real property of the defendant Halliday, upon which the judgment of the complainants is a lien, or would have been a lien if such assignment had not been made, and which had not been conveyed by Halliday to a bona fide purchaser at the time of docketing the judgment. And as to all the rest of the property embraced in the assignment the bill must be dismissed, without prejudice to any rights which the complainants, or the supposed deputy, may have at law; or to any rights which the complainants may have in this court to set aside the assignment as to the residue of the property, after a new execution shall have been issued, so "as to obtain a lien upon the assigned property, or after an execution shall have been issued to the proper oEcer and returned unsatisfied. Such a decree will protect both parties in all their legal and equitable rights, so far as it is proper to protect them, and without disturbing any settled principle. And, under the circumstances, this appears to be a proper case to leave the parties respectively to pay their own costs.


text:
    Bradley vs. Amidon and Jones, executors, &c.

    Where the testator devised and bequeathed to the children of his daughter E. then in being, and to such children as she should thereafter have, one-third of his real and personal estate to be equally divided among them share and share alike; and in case of the death of any of them without issue, and under the age of twenty-one, their shares to go to the survivors and to the children of such as had died leaving issue; with a limitation over to E., their mother, in case they should all die under age and without issue, if she should then be living, and if not living, then to her sister O. and her heirs; and the testator then charged the property devised and bequeathed to the children of E., with her support, and directed his executors to take upon them tire management of the property until the children of E. should respectively attain the age of twenty-one, and from the rents, profits and increase of the property to defray the expense of the support of E. and of the maintenance and education of her children, and to accumulate the surplus, if any, for the benefit of the children respectively until they should attain the age of twenty one; and the will then declared, that it was the express desire and will of the testator that no part of the share or interest in his estate given to the children of E. should go out of the hands and management of his executors until such children should respectively attain the age of twenty-one, or until guardians should be appointed to manage the same for them; and the testator died leaving his daughter E. surviving him, who then had three children, all under twenty-one years of age ; and the father of the children obtained the appointment of guardian of their estates:

      Held, that by the will no part of the capital of the estate was given to the infant children of E. until they respectively arrived at the age of twenty-one; and held if there had been no trust clause in the will that the executors could not have been required to pay over any part of the principal of their jespective shares, to them or to their general guardians, while they were under the age of twenty-one.

      Held further-, that the testator by his will, contemplated a distribution of the capital of the fund among the children of E., during her life, as they should respectively attain the age of 21, and that her support was a charge upon the estate in the hands of the devisees and legatees after they should respectively arrive at the age of 21, and that the trust to the executors to receive the rents and profits, and apply so much as might be necessary for her support, was restricted as to each share to the time when the owner should have attained the age of 21: Held also, that as to the shares of the personal estate to be paid over to the children, respectively, as they arrived at the age of 21, the court could direct it to he paid over to the legatees presumptively entitled to such shares, during the lifetime of their mother, upon their giving security to protect the contingent interests of afterbom children in that part of the fund.

      Held further, that the direction in the will, to the executors, to take upon themselves the management of the property, until the children of E. respectively attained the age of 91, and from the rents, to provide for her support as well as for the maintenance and education of her children who had not attained 91, was a valid bust; and that the legal title to the real as well as to the personal property vested in the trustees, by implication, during the minorities of the respective legatees and devisees, to enable such trustees to collect and receive the rents, &c. and apply them to the purposes of the trust, and to accumulate the surplus, if any, for the benefit of those entitled thereto during their respective minorities as directed by the will.
    1843. April 4.

      Held also, that the executors, after providing for the support of the mother, should pay over from time to time, to the general guardian of the children, so much of the residue of the rents arid profits belonging to them respectively as was necessary for their support and education; taking his receipts therefor as such general guardian.
    The general guardian of infants cannot file a bill in his own name to obtain possession of the property of his wards. But he must file it in the name of the infants, as their next friend.
    This was an'appeal by the defendants from a decree of the vice chancellor of the seventh circuit. G. Pinckney, the father-in-law of the complainant, by his will devised and bequeathed to the children of his daughter, Electa, the complainant’s wife, then in being, and to such as she should thereafter have, one third of his real and personal estate, to be equally divided among them share and share alike ; and in case of the death of any of them without issue, and under the age of 21, their shares to go to the survivors and to the children of such as had died leaving children ; with a limitation over to Electa Bradley, .their mother, in case they should all die under age and without issue, if she should then be living ; and if not living, then to her sister Ophelia, the wife of Budlong, and her heirs. The testator then charged the property devised and bequeathed to the children of his daughter, Electa Bradley, with her support for life. And he requested and directed his executors to take upon them the management and direction of the property until the children of his said daughter should respectively attain the age of 21 years ; and from the rents, profits and increase of the property to defray the expense of the support of his said daughter, and of the maintenance and education of her children ; and to accumulate the surplus, if any, for the benefit of the children, respectively, until they should attain the age of 21. The will then contained the following clause : u It is my express desire and will that no part of the share or interest in my estate, above devised and given to the children of my daughter Electa, shall go out of the hands and management of my said executors herein after named, until the said children shall respectively attain the age of twenty-one years, or until a guardian or guardians shall be duly appointed according to law to manage the same for them.” The testator died in 1837, leaving his daughter surviving him j who then had and still has three children living, the eldest of whom was eleven years of age at the time of filing the complainant’s bill, in 1839. The complainant having procured himself to be appointed guardian of the estates of his children, by the surrogate of the county where they resided, demanded the possession of their property ; which demand the executors and trustees under the will refused to comply with. He thereupon filed the bill in this cause, in his own name, against the executors and trustees, to obtain the possession of the property; without making either his wife or children parties to the suit.
    The cause was heard upon bill and answer. And the vice chancellor decided and decreed that'the complainant was entitled to the possession of the whole of the infants’ shares of the estate. He therefore directed the executors and trustees to account to the complainant for that part of the estate of the testator, and to deliver it over to him ; and that the costs of both parties be paid out of the fund. From this decision and decree the defendants appealed.

      E. Forman, for the appellants.
    The intention of the testator, that the defendants should hold the trust estate until the children of Electa Bradley should attain the age of 21 years, is sufficiently clear from the will. An intention of the testator, clearly expressed in the will, cannot be overturned by implication. It can only be doneby clear and explicit language, plainly and palpably contradicting the previous provision. If such intention be not expressed with sufficient certainty in the will, inasmuch as an intention is expressed, it is competent for the defendants to explain and showwhatitwas,byparolevidence. (11 Ves. 457. 1 Salk. 7. 6 Mod. 199. 3 Keb. 49. 3 Lev. 71. 1 Ves. §■ B. 470. 1 Mad. 437, 8, 9. 5 Mad. R. 56. Powell on Dev. 335, 6.) The facts set forth in the answer of the defendants are such as are not in conflict with any intention discoverable on the face of the will, and they are such as to render more clear and defined to the eye of the court the intention perceptible through the whole will. (2 Paige, 122.) There is charged upon the trust estate in the hands of the defendants, the future contingent estates, in fee, for such children as Electa Bradley may hereafter have, as also the maintenance of Electa Bradley. And the complainant, as father and guardian of his present children, is not entitled to demand and have the custody of the estate in which her future children have this contingent interest, and from which she is to draw her support. The estate, both at law and in equity, is vested in the defendants by the will and the statute and their acceptance, subject to the execution of the trust; and they cannot be divested of it except by judgment of law ; or upon their resignation by consent of the eestuis que trust, or under the direction of chancery. (1 Edw.Ch. R. 572.) This is an application for the removal of trustees and the appointment of another, and the court will take into consideration any facts or circumstances which render it improper that the appellant should have the custody of the trust estate. The complainant acquired no right to the possession of the trust estate under his appointment by the surrogate, even if the powersy>f the defendants had ceased. (1 Edw. Ch. Rep. 572.)

      P. Outwater, jun. for the respondents.
    The complainant having been duly appointed guardian of the infant children of the complainant and his wife Electa, mentioned in the will, is as such entitled to the custody, care and control of the estate thereby bequeathed to the infants by the will. The will provides that the custody of the property shall be committed to the defendants, until the children attain the age of 21, or until a guardian be appointed. The complainant has been appointed such guardian, and is therefore entitled to the custody of the property. The question is not what the testator intended, but what the words used will, according to their ordinary signification, embrace. (5 Mad. R. 412. 2 Chit. Eq. Dig. 1364.) The intention of the testator must be collected from the words of the will, and not from circumstances out of the will. (19 Ves. 521. 18 Ves. 466.) Parol evidence is not admissible to show the intention of the testator, against the construction upon the face of the will. (8 Ves. 22. 3 Paige, 26. 14 John. 1.) The last provision in a will controls its construction. (2 Paige, 122.)
   The Chancellor.

The counsel for the defendants does not appear to have called the attention of the vice chancellor to the fact that no decree could properly be made upon this bill, to which no person having any interest in the estate of the testator is a party, either as a complainant or defendant. The surrogate is not authorized by law to appoint a trustee, but merely to appoint a guardian of the estate of the infant. • Such guardian, therefore, is not authorized to file a bill in his own name, to obtain possession of the property of his infant wards ; but he must file it in the names of the infants, as their next friend. A decree made in this suit would not protect these defendants from further litigation, even with the infants themselves. This bill should therefore have been dismissed, upon the ground that it was filed by a sole complainant who had no interest whatever in the subject matter of the suit.

But as it will probably save the expense of a new suit, in the name of the infants by their next friend, to examine the merits of this case, I have looked into the will of the testator to see whether this court has the power to take the property, which the defendants hold in trust for these infants, out of the hands of the executors and trustees, for the purpose of placing it under the care of their general guardian.

If there was an absolute devise and bequest of one-third of the testator’s property, to such of the children of his daughter Electa Bradley as should be in esse at his death, there would be some ground for supposing that the testator only intended to provide for the care and protection of the infants’ share of the property until a guardian, of their estates, was appointed to take care of it for them. But the fact appears to have been overlooked, in this case, that the testator has not given to the infant children of the complainant any part of the capital of his estate, until they respectively arrive at the age of twenty-one ; and if they die before that time, without issue, the fund is given over to others. In such a case, if there was no trust clause in the will itself, the executors could not be required to pay over any part ofthe principal of the respective shares of the personal estate, to these legatees, or to their general guardian, while they were under the age of twenty-one. All that they could be required to do, in such a case, would be to keep the fund properly invested, and to pay over the income thereof for their support, until they respectively arrived at the age of twenty-one ; or that the fund should be brought into court and invested, under its direction, until the time of payment arrived ; and subject to the contingency mentioned in the will. (Phillips v. Annesley, 2 Atk. 58. Heath v. Perry, 3 Idem, 105, n. 1. Green v. Piggot, 1 Bro. C. C. 105.)

There are other difficulties in this case in the way of the complainant’s claim to the possession of the personal property in the hands of the executors. The bequest was not to such of the children of the testator’s daughter Electa as should be in esse at the time of his death ; but it was to such as she then had or should thereafter have. It cannot therefore be determined during the life of Mrs. Bradley, or at least until some of her children shall have attained the age of twenty-one years, what share of the fund will belong to each. For if she should have other children, either by the complainant or by any future husband, they may come in and claim a share of the property under this will. The will is inartificially drawn, and it is therefore somewhat doubtful whether the testator contemplated a distribution of this third of his property among the children of his daughter Electa, during her life, as they should respectively attain the age of twenty-one, or only upon their attaining that age after her death. Taking the whole will together, however, I think the first construction must be the true one. Though it appears to have been a part of the general intention of the testator to provide for the support of his daughter for life, out of the property, it is done in the general form of a charge upon the estate, in the hands of the devisees and legatees, after they shall respectively arrive at the age of twenty-one. And the trust to the executors, to receive the rents and profits and income of the property, and to apply so much thereof as may be necessary to her support, appears to be restricted, as to each share of the property, to the time when the owner of that share shall have attained the age of twenty-one. It is true this construction of the will would leave any children which she might have after the distribution of the property to those who had arrived at the age of twrenty-one, to look to those distributees for their portions thereof. But as to the real estate that would present no difficulty whatever, as it would be’ but the ordinary case of a vested estate in fee, subject to open and let in after born children to share therein. And as to the share of the personal estate to be paid over to the child who had attained the age of twenty-one, or who had died under age leaving issue, the court could direct it to be paid over to the legatee presumptively entitled to it, upon his giving security, to protect the contingent interests of afterborn children in that part of the fund. (See Webber v. Webber, 1 Sim. & Stu. Rep. 311.)

But, by the express terms of this will, the executors are to take upon themselves the management and direction of the property until the children of the testator’s daughter shall respectively attain the age of twenty-one, and from the rents and profits to provide for her support, as well as for the maintenance and education of her children who have not attained that age. This is a valid trust under the provisions of the revised statutes, and the legal title must vest in the trustees by implication, during the minorities of the legatees and devisees respectively, to enable such trustees to collect and receive the rents and profits and income of the property, and to apply them to the purposes of the trust in the meantime, and to accumulate the surplus, if any, for the benefit of those who are entitled thereto, during their respective minorities, as directed by the will.

It is difficult to say what the testator intended by that clause of the will in which he directs, that no part of the share or interest devised to the children of his daughter Electa shall go out of the hands and management of his executors until the children respectively shall have attained the age of twenty-one, or until a guardian or guardians shall be duly appointed according to law to manage the same. But as it appears from the answer that the complainant and his wife, at the time of making the will, in consequence of family difficulties, were living separate from each other, I am satisfied that the testator did not intend to destroy the trust he had created for her benefit in the previous clause of the will, nor to authorize the executors to pay over the capital of the fund to the guardians of the minor children then in esse, to the prejudice of the rights of afterborn children. The clause was probably inserted from over cautiousness, on the part of the scrivener who drew the will, to provide for a supposed termination of the trust in case the daughter should die during the minorities of any of her children. But whatever event the testator may have had in contemplation when he inserted this restrictive clause in his will, it cannot properly be construed into a direction to his executors to give over to the guardian of the infants, whenever one should be appointed, the whole of this third of the estate ; without taking any security whatever to refund it, or any. part of it, upon the happening of the contingencies contemplated by the will, or making any provision for the support of their mother out of the income of the property.

This decree, therefore, could not be sustained if the bill had been properly filed, in the name of the infants by their next friend. It must be reversed, and the complainant’s bill must be dismissed with costs, including the costs of the executors and trustees upon this appeal. And as the appellants have merely done their duty as faithful trustees, in resisting the claim made in this case, the necessary costs and expenses to which they hav ebeen put, and which they cannot collect from the respondent, they will have a right to retain out of the income of this third of the testator’s estate.

It may also be proper to suggest that the father is entitled to the guardianship and education of his children; and that while they continue under his care and protection, the executors, after providing for |he support of Mrs. Bradley, as directed by the will, should pay over to him, from time to time, so much of the.rents and profits and income of the estate, belonging to the infants, respectively, as may be necessary for their support and education ; taking his receipts therefor as such guardian.


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    Brown and others vs. Frost and others.
    An original bill in chancery cannot be filed by a party to a foreclosure suit, to set aside a master’s sale under a decree, where relief could have been obtained, by a summary application to the court, in the foreclosure suit.
    Where the master sells property, under a decree in chancery, at an improper time, or in such a manner as to prevent a fair competition, or if for any other cause it is inequitable that such sale should be permitted to stand, the proper remedy of the party aggrieved is by a summary application to the court, in the suit in which the decree was made, to set aside the sale upon such term8 and conditions as may be just; so as to protect the rights of the purchaser as well as of the parties interested in such sale.
    The owner of the equity of redemption is not entitled to redeem the mortgaged premises, after the same have been put up and sold under the decree, although the mortgagee becomes the purchaser at such sale.

      1843. April 4.
    Until the report of sale is confirmed, any person interested may make a summary application to the court for a re-sale, provided he has any just grounds to sustain the application. But where the sale is properly made, and there are no grounds for setting it aside, the former owner of the equity of redemption cannot prevent the completion of the sale, and the confirmation of the master’s report, by a mere tender of the amount due upon the decree' with interest and costs.
    Mere inadequacy of price is not alone sufficient to authorize the court to set aside a master’s sale, although the complainant in the foreclosure suit is the purchaser. But in such case, if the owner of the equity of redemption intended to bid a greater sum for the mortgaged premises and to comply with the terms and conditions of the sale, and was prevented from so doing by mistake or accident, he has a clear and adequate remedy, by a summary application to the court, in which.the suit was pending, for a re-sale. He cannot however file an original bill to set aside such sale.
    This was an appeal from a decree of the assistant vice chancellor of the first circuit. The bill in this cause was filed by H. Brown to redeem certain premises which had been sold under a decree of foreclosure in a former suit. H. Brown, the complainant, in April, 1831, having become the purchaser of five parcels of land at a master’s sale, mortgaged the same to Frost and the Cammans, to secure the payment of $5000 and interest, in one year 5 and also mortgaged the same to the Cammans, at the same time, to secure the payment of the further sum of $4000, payable in one year with interest. lío part of the principal or interest having been paid, the mortgagees, in August, 1832, filed a bill of foreclosure ; and in January, 1833, they obtained the usual decree for a foreclosure and sale of the premises. Under this decree the master advertised the premises to be sold, on the 2d of March, 1833, upon the terms that $500 of the purchase money should be paid down, and the residue, with interest' at the. rate of six per cent per annum, on the 1st of May thereafter. The premises were struck off to H. Chase, who professed to purchase as the agent of H. Brown, the mortgagor, for $10,350. And $500 of the. purchase money was paid to the master on the day of sale, and $4000 more was paid to him on the 9th of May' thereafter ; and Frost then agreed to wait for the residue of the purchase money until the 17th of August. The residue not being paid, the complainants, in the foreclosure suit, in February, 1834, applied to the court and obtained an order for a re-sale of the premises, for the balance due. The master advertised the property for a re-sale, in March, 1834, and put up the property upon the terms that ten per cent of the purchase money should be paid down, and the residue in ten days. One of the five parcels, constituting the principal value of the mortgaged premises, was struck off to Reed, who professed to bid as the agent of the mortgagor, for $6600. But he not being prepared to pay the ten per cent down, the property was put up again and struck off to Frost, for himself and his co-mortgagees, for the same sum ; and he immediately paid to the master the ten per cent required to be paid down. At the expiration of the ten days, when the balance was tobe paid, the residue of the purchase money was paid to the master, who thereupon conveyed the premises to the purchaser. After the deed was actually delivered to Frost, but on the same day, Reed tendered the whole amount due upon the bid, and asked to redeem the premises. The assistant vice chancellor decided that the rightto redeem existed at the time of that tender. He therefore decreed a redemption of the premises. (See 1 Hoff. Ch. Rep. 41.) From that decree the defendants appealed to the chancellor. And the complainant having died, subsequent to the appeal and before the hearing thereon, the suit was revived in favor of lier heirs at law.

      E. Sandford, for the appellants.

      S. Sherwood, for the respondents.
   The Chancellor.

Many things are stated in the bill in this cause which might have been the proper subjects of consideration in the original foreclosure suit. But the decree in that suit is conclusive upon the rights of the parties, and cannot be opened or disturbed in this collateral way. I am also satisfied that an original bill in chancery cannot be sustained, by a party to a foreclosure suit, to impeach or set aside the proceedings upon the master’s sale, under the decree, where there was nothing which could have prevented an application to the court, in that suit, for a resale, by those who were interested in the premises. If the master sells at an improper time, or in such a manner as to prevent a fair competition, or if for any other cause it would be inequitable to permit the sale to stand, the proper remedy is by a summary application to the court, in the suit in which the decree was made, for a re-sale of the premises upon such terms and conditions as may be just; so as to protect the rights of the purchaser as well as the rights of the parties interested in the sale. (Requa v. Rea, 2 Paige’s Rep. 339. Collier v. Whipple, 13 Wend. Rep. 224. Nicholl v. Nicholl, 8 Paige’s Rep. 349. American Ins. Co. v. Oakley, 9 Idem, 259.) And it would seriously affect the interests of those whose property is sold by masters, under decrees of this court, if it was understood that questions of this kind were to be litigated and determined in a collateral suit. For no man of ordinary prudence would bid what he believed to be the fair cash value of the property, at a master’s sale, if he might be subjected to the expense and delay of a protracted chancery suit to determine whether the proceedings of the master had been strictly regular.

The only real question for consideration on this appeal, therefore, is that upon which the assistant vice chancellor has based his decree—the right of the mortgagor to redeem the premises after they have been sold under the decree. He states it as an established rule of the court of chancery in this state, that the right of redemption remains until the purchase by the mortgagee is consummated, the deed delivered, and the report confirmed. But he does not refer to any reported case either recognizing or establishing such a principle. If such a rule exists, it is one which I never heard of before; and no such right has ever been claimed, by the owner of the mortgaged premises, in any suit or proceeding before me, during the fifteen years in which I have presided in this court. The case of Edwards v. Cunliffe, (1 Mad. Rep. 287,) referred to by the assistant vice chancellor, in which Sir Thomas Plumer enlarged the time for the payment of the mortgage money, was not the case of a sale of the mortgaged premises, but of a decree for strict foreclosure.

The ordinary form of decrees of foreclosure in this court gives to the mortgagee, or any other party to the suit, the same right which a stranger has to become a purchaser at the master’s sale. And if the mortgagee bids more for the property than it is worth, he is still bound to take it in satisfaction of his debt, to the extent of his bid, and to pay the surplus money, if any, to the owner of the equity of redemption. Where the property is fairly struck off to him, therefore, he has the same right to be protected in his purchase, if he complies with the terms and conditions of the sale, as though he were not a party to the decree of foreclosure. It is true that the court does not interfere to compel a delivery of the possession of the premises to the purchaser, until the master’s report of the sale has been duly confirmed, whether such purchaser be the mortgagee himself or a stranger to the suit. And until such confirmation of the report, any person interested in the sale is in a situation to make a summary application to the court for a re-sale, if there is any just ground for such an application. But the report of the sale is confirmed of course, at the expiration of the eight days from the entering of the order nisi, if no exceptions are filed, unless there is an application in the meantime to set aside the sale. And the former owner of the equity of redemption cannot prevent the completion of the sale, and the confirmation of the report, by tendering or offering to pay the amount of the decree with interest and costs.

Here the purchaser paid ten per cent of his bid at the time of the sale, and signed the written contract, by which he was bound to pay the residue at the time prescribed in the conditions of sale. The time allowed for that purpose was for the convenience of the purchaser, and to enable the master to get the best price for the property; and not for the purpose of giving the mortgagor the right of redemption in the mean time. And if the purchaser had preferred to pay all the purchase money immediately after the sale, the master would have been authorized to receive it at that time, and to apply it to the payment of the debt and costs, according to the directions of the decree. Frost, however, waited until the day fixed by the terms of the sale, and then received the master’s deed. And if the mortgagor had no right to prevent the consummation of the sale, by a mere tender of the amount of the decree and costs previous to the execution of the master’s deed, as she certainly had not, the subsequent tender of the money gave her no right to file this bill to redeem the premises, or to have a resale thereof under the former decree.

It is very probable that this land was sold for something less than its actual value at the time, although it appears money was scarce, and property of course was much depressed ; for it appears this lot, with the other five parcels, had been sold three years before for f>10,700. The inadequacy of price, howevqr, cannot justify this court in disregarding settled principles for the purpose of giving relief in this case. If there was a real and bona fide intention on the part of Reed to bid off the property, and to pay for it at the time specified, in the terms of sale, and he was prevented from doing so by mistake or accident, the mortgagor, for whom he professed to act, had a clear and adequate remedy by an application to the vice chancellor, before whom that suit was pending, for a resale. It seems from the evidence that an ex parte application of this kind was made, and that the vice chancellor refused to interfere unless the money was paid or tendered to the master. And then, for some reason which is not sufficiently explained, that method of obtaining relief was abandoned, and this unheard of expedient, of filing an original bill to obtain a resale of mortgaged premises under the decree in the former suit, was resorted to.

The decree of the assistant vice chancellor must therefore be reversed, and the bill in this case must be dismissed ; but without prejudice to any right the respondent may have to apply to the vice chancellor for a resale of the premises, upon such terms and conditions as may be just and equitable, if the report of the sale had not been confirmed, so as to make it binding and conclusive upon the parties, previous to the filing of the bill in the present suit. The respondents are only before the court on this appeal as the heirs of the original complainant in this suit. It would therefore be wrong to charge them personally with the costs, either in the court below or on the appeal. And under the peculiar circumstances of the case, I shall not charge the estate of the decedent, in their hands as heirs, at law, with the costs of the adverse parties.