author: By the Court, Whipple, J.

text:
    St. Amour vs. Rivard et al.

    Where a testator provided in his will that each disposal of real estate made by it should only be for tho use and benefit of the persons in whoso favor it was made, his or her life lasting; that no parcel of tho real estate should bo sold or alienated in any manner, but after tho decease of those several to whom shares or parcels of the estate were assigned, said shares should remain for tho use and benefit of the descendants of him or her to whom a share had been assigned, their lives lasting, and so on, and in case of demiso without posterity, the said share should accrue to the use and benefit of the owners being of tho testator's relation or descendants, their lives lasting, of the next share or shares, and so on, as long as any posterity should exist, and in case of extinction to the next heirs, — it was held thafc tho will, inasmuch as it sought to create an indefinite succession of life estates and to render the property demised inalienable, was void as being against: the policy of tho law.
    Nor will tho demise in the will be sustained as an executory devise.
    Au executory devise directing limitations beyond the period allowed by law is void for the whole and not merely for the excess beyond the legal period.
    The doctrine of approximation, or, as it is generally called, the cypres doctrine, cannot bo applied in support of a will of this description, there being no general intention of the testator, not conflicting with the law, which the Court could sustain by sacrificing the the testator’s particular intention.
    It is not competent under section 5, title 1, part 2, It. S., 1836, so to construe such a will as to give a life estate to the first takers, remainder over in fee to the second takers.
    Case reserved from Wayne Circuit Courts in Chancery.
    The bill in this cause was filed to obtaiu a constructiou of the will of Francis Rivard, deceased. The will was not dated, hut was said to have been executed in 1831. The testator died in 1841, and Ms will was proved in 1842. It contained the following devise: “I leave to my son Leon, his life lasting, the use and.benefit of a certain tract of land,” (then follows the description.) Eight other demises somewhat similar follow, and then comes this declaration of the testator: “It is well to he understood that all and every single disposal of real estate made in this my testament, is only for the use and benefit of him or her in whose favor it is made, his or her life lasting, and that it is my formal will that neither my real estate nor any parcel thereof, will ever be sold or alienated in whatsoever manner — but that after the decease of those several to which shares or jiarcels of my real estate have been assigned, the said shares or parcels will remain for the use and benefit of the descendants of him or her to whom a share has been assigned, their lives lasting, and so on, and in case of demise without posterity, the said share will accrue to tho use and benefit of the owner or .of tho owners being of my relation or descendants, their life lasting, of the next share or shares, and so on as long as any posterity will exist, and in ease of extinction to the next heirs .”
    The persons to whom these devises were made, were principally the children and the heirs at law of the testator, had he died intestate, They sold all their interest in the real estate to the complainant, who files his bill for a partition. The grand children are made parties, and they demur to the bill.

      Messrs. A. JD. Fraser, Van Dyhe & Emmons, and H. T. Backus, for complainant.

      C. O'Flynn, for defendants.
   By the Court, Whipple, J.

The important question in this case, which has been reserved for our determination, arises upon the construction and effect of the will of Francis Rivard, deceased, and which is fully set out in the bill of complaint.

The 12th clause furnishes a key to the intention of the testator in respect to the disposition of the real estate of which he died seized. The idea of a perpetuity is too strongly impressed upon the face of the instrument to leave any room for doubt. It creates an indefinite succession of life estates, rendering the property devised inalienable, while any of his “ posterity ” exists. In case of “ extinction,” then, in the language of the testator, the fee was to vest in “ the next heirs.” No language more apt or appropriate could have been employed to create a peipetuity. Such a devise, it is admitted, is in contravention of those sound rules of policy, wisely established and universally respected, and must therefore fall under the strong arm of the law.

But while it is admitted that the devises in the will cannot be sustained, as being repugnant to the principles of policy which will not permit limitations that tend to paralyze trade by preventing the free and unrestricted circulation of property, it is earnestly contended that they maylake effect as executory devices. This proposition involves the consideration, and application to the devises in question, of some of the most complex learning known to the law, and this complexity has its origin in the discretionary power formerly exercised by Judges, of allowing an indulgence to a man’s last will and testament, where otherwise the will would be held void. While they applied to devises creating perpetuities the stern and unbending rule that they are void in their creation; they at the same time sought, by a course of reasoning as unsound as it was refined, to gratify family pride by fettering estates for a limited period. The attempt was made, though not without a •struggle, to deduce a rule by which property might be locked up for a limited period, without infringing upon a principle too firmly rooted in English law to be shaken. By this rule it was supposed they steered clear of the dangers which would flow from restraining the alienation of estates for an unlimited period, while at the same time they yielded to the deshe of a testator to exercise a posthumous control over property, which he could no longer enjoy.

An executory devise is defined to be “ such a limitation of a future estate in land or chattels, (though in the case of chattels personal, it is more properly an executory bequest,) as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law.” (Fearne, 385, note.)

Its being contrary to the rules of limitation in conveyances at common law, gives rise to two rules universally adopted in respect to executory devises, thatwherever a future interest is so limited by devise as to fall within the rules laid down for the limitation of contingent remainders, or the estate limited by it is such as can take effect as a contingent remainder, it shall never take effect as an executory devise.” (Fearne, 385, note.)

The reason of the institution of executory devises, (says Chancellor Kent,) was to support the will of the testator; for where it was evident that he intended a contingent remainder, and when it could not operate as such by the rules of law, the limitation was then out of indulgence to wills held to be good as an executory devise. (4 Kent, 263.) The whole • course of decisions in England shows that restraints intended to prevent the mischiefs of perpetuities, were from time to time imposed. The Courts, yielding to the wishes of the nation at large, invented expedients well calculated to shake a policy by which the pride of the aristocracy and the grandeur of families were to be upheld. In respect to the statute of entails, Westminster Hall siding (said Lord ‘Worthington) with liberty, found means to evade it,” and common recoveries were introduced to bar estates tail. Every attempt to revive perpetuities by applying to them the doctrine of executory devises met with a firm resistance. In its origin, the species of limitation now under consideration was comparatively harmless. At first it was held that the contingency upon which the estate was to vest must happen within the compass of a life or lives in being, or a reasonable number of years; after-wards it was further extended to a child en ventre sa mere, at the time of the death of the father; subsequently it was extended to twenty-one years after the death of a person in being. It is not to be understood however, that the enlarged period, as now authoritatively settled, was firmly established without a struggle; the strong determination to resist qny rule that might tend to suspend the power of alienation and the vesting of the estate for an unreasonable period, is manifested, in every case in which the doctrine of executory devises was called in question. The period of limitaton as now recognized is that laid down by Lord Kenyon, in Long vs. Blackall, (7 T. R., 102,) and is stated in these words: “It is an established rule that an executory devise is good if it must necessarily happen within a life or lives in being, and twenty-one years and the fraction of another year, allowing for the time of gestation.” In an opinion distinguished for its learning and careful research, delivered by the Judges óf England upon questions submitted to them by the House of Lords, in 1838, it was considered that twenty-onb years was the limit, and that the period of gestation was to be allowed in those cases only in which gestation existed. (Cadell vs. Palmer, 10 Bing., 140.) In answer to one of the questions propounded by the House of Lords, the Judges held that a limitation by way of executory devise is void as too remote, if it is not to take effect until after the determination of a fife or lives in being, and upon the expiration of twenty-one years afterwards, together with the number of months equal to the ordinary or longest period of gestation, the whole of such-years and months being taken as a term in gross without reference to the infancy of any person whatever, lorn, or en ventre sa mere. This is the most recent of the English cases I have consulted, in which it was held, after the fullest consideration, that limitation exceeding the-prescribed limits was absolutely void. In the case of Leake vs. Robinson, (2 Meriv., 362,) Sir William Grant, whose fame as a jurist entitles bis opinions to the highest respect, uses this language: “Perhaps it might have been as well if the Courts had originally held an executory devise transgressing the allowed limits, to be void only for the excess, where that excess could, as in this case it can, be clearly ascertained. But the law is otherwise settled.” And again: “ In the construction of the Act of Parliament, passed after the Thellusson case, I thought myself at liberty to hold that the trust of accumulation was void only for the excess beyond the period to which the act restrained it. And the Lord Chancellor afterwards approved of my decision. But then the act introduced a restriction on a liberty antecedently enjoyed, and therefore it was only to the extent of the excess that the prohibition, was transgressed; whereas executory devise is itself an infringement on the rules of the common law, and is allowed only on the condition of its not exceeding certain established limits. If the condition be violated, the whole devise is held to be void.”

In the case of Griffiths vs. Vere, (9 Ves., 128,) Lord Eldon remarked as follows: “Previously to this act it was competent to a man to dispose of property by will, and I think the authorities go, also to accumulation of rents and profits, for a life or lives in being, and twenty-one years, and a little more, meaning the time of gestation; and without considering, whether that may be put at the beginning, as well as the end of the period, the point is, whether the Legislature meant to apply the principle, long settled as to executory devise, that if limitations are directed, which go beyond the period allowed, it is void for the whole, and it is not good for the time allowed by law." It is to be observed that Lord Eldon regards the doctrine as long settled, that executory de■vises can only be supported where the estate is to vest within the period prescribed by law. These cases, decided at various times, in a period of thirty years, commencing in 1803 and ending in 1833, must be deemed abundantly sufficient to place upon an impregnable basis, the doctrine, to support which, they are cited. They show with perfect dearness, the sense in which that doctrine is understood and applied in England.

A few references to elementary works, will show how fully the rule asserted in the cases cited, is supported and illustrated by writer’s of high repute..

A note to Fearne, On Contingent Remainders, p. 444, contahis a part of the argument of Mr. Hargrave, in'the case of Wicker vs. Mitford, (see his Law Tracts, p. 518,) in which he states that “if the doctrine ■of executory devise w&s res integra, and was now to be settled, it might be thought a sufficient and more just cheek of them, to hold that they should be good so far as the given period, whether the contingency was too largely or widely expressed or not. But our ancestors have not left us a choice, it long haying been a fixed rule, that if the contingency is too remote, the executory devise dependent upon it, shall not be utterly void, so far as it exceeds the fine prescribed, bxit shall wholly fail.” The soundness of the opinion expressed by the learned author of the note, supported by that of Sir William Grant, in the case of Leake vs. Robinson, that it might have been well, had the Courts held an executory devise transgressing the allowed limits, void only for the excess, may be well questioned. The reasoning of the Master of the Rolls in that case, presents in a strong light, the objections to the rule he seems to think it might have been well enough to establish. Its .adoption would inevitably have led, in many cases, to a remodeling of last wills and testaments, to such an extent as scarcety to leave a trace of the testators real intention, on its face.

In the exercise of a large discretion, controlled by no fixed rules, the intention of the deceased tostator, as exjrressed in his last will and testament, would give place to that of the living judge, whose peculiar dut3 it is to expound, and not to make wills. “An executory devise (says Lovelasson wills, 135) which exceeds the allowed limit, is wholly void, and not for the excess only; but a trust for accumulation, beyond the period prescribed by the statute, is void only for the excess. But if the trust exceed the period allowed for accumulation, before the statute, as a trust for accumulating the rents during successive minorities, to be paid to the first person in possession, attaining twenty-one, it is altogether void.” Jarman, of wills, (p. 231,) sa3s: “A devise to such of the grand-children of the testator as should be living at the expiration of twenty-one years and one day, from the testator’s decease, would clearly be-void.” And again, “where a gift to a class extends to objects too remote, the fact that some of the objects composing the class-were actually bom within the period allowed by the rule of law, will not render the gift valid, quoad those objects.” The doctrine and the-circumstances under which it is applied, is thus stated by Earn, on the Exposition of Wills, (p. 4:) “In whatever way a testator may attempt to create a perpetuity, whether, 1. By devising successive estates for life to persons unborn; or 2. By depriving a tenant in tail of his power to suffer a common recovery; or 3. By limiting an executory devise, which is not to take effect within the period prescribed by law; or 4. By means of a power; or 5. By a devise on trusts which would make the estate inalienable longer than the law permits — the intention of the testator cannot he carried into effect.” Again, (p. 240,) “and the two chief cares of the law on a settlement of real property, are to prevent a vacancy in the possession of the freehold, and the creation of a peipetuity. The technical forms of particular estate and remainder, which are found in the common law deed, are not required in a settlement by will; and in their place, the informal limitations, called executory devises, are permitted to have the effect of technical limitations. Irregularity of.form in a will is, nevertheless, not permitted either to put the freehold in abeyance, or to create a peipetuity. In the exposition, therefore, of executory devises, subserviently to the rules against the abeyance of the freehold, and the creation of a perpetuity, the aim of the law is, to fulfill' the intention of the testator;- and, moreover, it should seem to give to the irregular limitations of the will the effect of a settlement in form by deed.” In Fearne, 502, this language is held: “Here, indeed, it may not be improper to remark once for all, that any limitation in future, or by way of remainder, of lands of inheritance, which in its nature tends to a perpetuity, even though there be a preceding vested freehold, so as to take it out of the description of an executory devise, is by our Courts considered as void in its creation.”

The references thus made, are deemed entirely sufficient to show the illegality of the same devises contained in the will of Rivard, and are conclusive upon the question so fully argued by counsel as to whether partial effect can be given to it by the application of the doctrine contended for.

But the doctrine of cy pres or approximation has been invoked, and it was insisted with much earnestness that it could consistently with the rules of law be so applied, as to give effect to some extent to the devises in question, although the Court might treat the excess as void. The .cases cited, and indeed the whole current of English authority, is hostile to the application of such a doctrine to the present case. Its inapplicability however, will be more clearly perceived when we consider its nature, and the cases to which it may be applied. In a note by Butler? (see Fearne, 203,) the doctrine of cy pres is stated with clearness and illustrated by examples. He says, “ The cases in which the doctrine has been received, have arisen on devises in which the testator has expressed himself in terms which have been thought by the Courts to contain a clear indication of his intention that the devisee and his issue should take the lands, and an intimation of the mode of the issue’s taking them; and his language in respect to the mode of the issue’s "taking them, has been thought by the Courts to be such, as construed literally, imported limitations contrary to law. In construing these devises, the Courts have considered the testator’s primary object was that the issue of the devisee should take the land, and that the mode in which the issue should take it was the testator’s secondary object; or, as it has been usually expressed, that the former was his general, the latter his particular intention. Then, in conformity to the uniform practice of effecting the testator’s intention as far as possible, they have thought themselves required to adopt that construction of the devise which, by including the issue of the devisee, satisfied the testator’s general intention that the issue should take, but which at the same time, by raising for the issue estates different from those which the testator . appeared to have intended them, sacrificed to that extent his particular intention.”

“Thus, where the testator has devised lands to a person and his issue and has appeared to intend that all the devisee’s issue should take the lands, and, at the same time, has appeared to intend to devise estates by purchase, to the children of unborn children of the devisee, the Courts have considered such limitations contrary to law; but, as the will has appeared to them to show an intention that the issue should talce, and this intention could be effected by the issue’s taking derivatively through

the ancestor, the Courts, rather than the testator’s intention should absolutely fail of effect, have put such a construction on the devise as vested the inheritance in the ancestor himself. Such a construction brings all the parties intended to be benefitted by the testator, within the operation of the devise, and thus satisfied the testator’s general intention; but in respect to the mode in which the testator would be thought, by the literal meaning of his language, to intend they should take, this is materially varied, and thus his particular intention is sacrificed.” If this be a correct exposition of the doctrine of cy pres, and that it is so, is established by the case of Moneypheny vs. Dering and others, (16 Mee & Welsby, 418,) it is somewhat difficult to imagine how it can be applied to the will before us. The mode suggested by the rule would be inadequate under our statute, to produce the end sought to be accomplished, and would defeat the clear, manifest general intention of the testator. That intention was to create such limitations as would effectually prevent the estate from ever vesting. This is not matter of inference, but of express declaration. A perpetuity was the prevailing, absorbing thought; this was the end to be accomplished; the means by which it was to be accomplished was the creating of an endless succession of life estates. The enjoyment of the estate, through the countless succession of life estates created by the will, was, to be sure, to inure to his children and children’s children, to the latest generation ; but the motive cannot be gathered from the will, that any particular person or class were to be the special objects of his bounty. The estate was to pass from grand-children to great-grand-children, not because either one of the class were more the object of his bounty than the other, but because it was the appropriate and natural channel through which his estate might flow perpetually, and at the same time carry out the main purpose and design so strongly impressed upon the will. There are, then, no two intents, the one general and the other particular, which the Court are called upon to harmonize. Such an attempt would prove abortive, and would inevitably lead to a sacrifice of the great primary purpose which the testator had in view. That the view stated in the note of Butler, from which I have quoted, is supported by authority, reference may be had to the recent case of Moneypheny vs. Dering and others, (16 Mee & Welsby, 418.) Baron Rolfe, in deliv- • ering the opinion of the Court, says: “ The doctrine of cy pres, in reference to questions of perpetuity, arises where a testator gives real property to an unborn person for life, with remainder to the first and other sons of such person, in tail- male, or with remainder to the first and other heirs of such person, in tail general, with remainder to the daughters as tenants in common in tail, with cross remainders amongst them. In such cases, the law, in order to prevent theRestatods intention from being entirely defeated, has treated his expressed intention as divisible into two parts: first, the intention that the first taker and his issue male, or issue general, as the case may be, shall all take in succession, according to the legal course of descent; and secondly, the intention that the first taker shall take an estate for life only, and that his children shall take as purchasers; and the two intentions being thus ascertained, the Courts have treated them as independent of each other, and have said that the inability to carry into effect the second or subordinate intention shaII not defeat the primary or general intention; and such a devise has therefore been held to give an estate in tail 'male, or in tail, as the case may be, to the first taker. By these means, the estate, if left, as it were, to itself, will go in the precise course marked out by the testator, though it will (contrary to what he intended) be liable to be diverted from that course by the act of the^first taker. Whether, in ' such a simple case as that which we have stated for the purpose of explaining the doctrine, it might not have been better originally, to act on a different principle — to hare said that the two intentions were blended together, and so that the language of the will afforded no guide to show what the testator intended, in a ease where a will in its integrity could not be carried into effect, is a matter in which it would be in vain to speculate.” The concluding remarks indicate at least, serious doubts as to the soundness of the doctrine, and if a failure to administer it would not have had the effect of “unsettling landmarks,” fifis quite probable it would not now be recognized by the English Courts. The doctrine is certainly one, which, in its practical application, requires great caution, and should only be applied in a clear case — never where the intention of the testator is liable to be frustrated. The attempt to divide a single intention is a work of great delicacy, and is well calculated to task the legal metaphysics of the most acute lawyer-. The books show that it .is not viewed -with the favor it once was, and much more care is observed by Courts in applying it, than formerly. "Whether it will commend itself to our approval, in a case fit for its application, it is not now necessary to decide. There is always great danger of forcing upon a testator a will which he did not make, and perhaps never would have made, when Courts undertake to give partial effect to its provisions. If, for instance, the testator in the will before us, had been told that its leading object would have been declared void by our Courts, how are we to say that he would have remodeled it in the manner now proposed. I agree in the sound views expressed by Dickenson Senator, in the ease of Root vs. Stuyvesant, (18 Wend. 318,) he says: “If we cannot execute the whole will, or some distinct or independent intent, the whole had better be declared void.”

■ I have examined and carefully analyzed every case referred to by counsel on both sides, but the great length to which this opinion has already extended, forbids that they should be separately considered. It may be sufficient to say that I find no English case which warrants the application of the doctrine of cy pres to a will containing provisions like that before us, and which the law declares is void in its creation. I say English cases, because it is in cases arising in the country where the doctrine in question had its birth, that we are to look for correct and authoritative expositions of its true nature.

It is suggested by the counsel for the defendants tliat the distinction between an executory devise and contingent remainder was merely technical: this may be, and yet the distinction is palpable and substantial. “A contingent remainder may be limited in conveyances at common law; it relates only to lands, tenements, and hereditaments, real or mixed; it requires a freehold to precede and sujrport it, and must vest at farthest, at the instant the preceding estates determine.” “An executory devise is admitted only in last wills and testaments; it respects personal estates as well as real; it requires no preceding estate to support it; and if there be any preceding estate, it is not necessary that the executory devise should vest, when such preceding estate determines.” (Fearne, 418.) But the great and essential difference consists in this: that the first may be barred and destroyed, or prevented from taking effect; whereas, it is a rule that an executory devise cannot be prevent ed or destroyed, by any alteration whatsoever in the estate out of which or after which it is limited.

I have not discussed the technical rules which Courts have applied in giving an interpretation to the words “in case of demise without posterity,” descendants” &c. The sense in which they were used by the testator is to be gathered from the whole will, and in precisely that sense are they to be understood by this Coiut. The intention of the testator is to govern in giving a construction to those words; and in respect to that intention no doubt can arise. The obvious import of the former words are equivalent to the words dying without issue: those words sometimes embrace collaterals, according as the testator intended they should he understood Whatever estates, then, were intended to be created by the testator, it is manifest that the fee was to vest upon a contingency too remote, viz: the indefinite failure of issue, and the -«state in the meantime is inalienable. I conclude this branch of the case with the remark of an English Chancellor, that “an attempt to make a perpetual succession of life estates, is vain, and not practicable.”

The grpund assumed by the counsel, that it would be competent under section 5, chapter 1, title 1, part 2, of the revised statutes of 1838, so to construe the will, as to give a life estate to the first takers, remainder over in fee to the second takers, cannot he sustained. That section is in these words: “When lands are given by deed or will to any person for life, and after his death to his heirs in fee, or by words to that ef- . feet, the conveyance shall be construed to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs.”

The principles settled by this opinion preclude the' possibility of giving any such effect to the will in question. This could not he done without violating every sound rule of construction, and frustrating the intention of the testator, who never contemplated that the fee should vest in the heirs of the first takers. He has declared that the fee should ultimately vest, if ever, in his heirs in the ascending line, after those in the descending line should become extinct; the proposition now is, to vest the estate, after the determination of a life estate, in the second takers in the direct line. He has declared in language so explicit and clear as not to admit of a doubb that his great object was to render the etetate demised, inalienable, while “posterity exists;” the proposition now is, to vest the estate in the second takers, thus rendering the estate alienable, after the determination of a life in being. In a word, we are called upon to demolish tbe fabric which tbe testator built, and upon its ruins erect another, so dissimilar in its structure, that'if it were permitted to him to re-visit this world and see it, be would fail to recognize in it tbe wort of bis own band. This, Courts cannot and will not do. It was for tbe testator to speak — this Court is not permitted to speak for him; it was for him to declare bis wishes; tbe duty of this Court is to give effect to those wishes, if consistent with the rules of law. It is a sufficient answer to tbe argument, founded on tbe statute, to say that no estate for life is given to any person, and after bis death to bis heirs m fee; nor are any words of similar import to be found in tbe will.

Tbe objection that a party cannot claim under and against the will at tbe same time, is inapplicable to tbe case made by tbe bill. The whole aspect of tbe bib shows that be does not claim under, but against tbe will.

Tbe other ground of demurrer is not web taken. If tbe complainant has derived title through a tax deed, the purchase made by him will inure to tbe benefit of tbe respondents. There was no objection to setting out this tax title in proceedings for partition, where there are no adverse parties, but all are equaby actors.

"The demurrer should be overruled, and it must be so certified to tbe Circuit Court of the County of Wayne.


source: Caselaw Access Project

author: By the Court, Pratt, J.

license: Public Domain

text:
    The People ex rel., J. G. Thurber vs. B. C. Whittemore, State Treasurer.
    Under sections 15 and 17, of Art. IV. of the Constitution, the President of the Senate and Speaker of the House of Representatives are entitled to the same compensation as Senators and Representatives, and cannotas President or Speaker receive any additional per diem or mileago.

      This was an application for a peremptory mandamus, to compel the State Treasurer to pay to the relator the sum of $97 and interest; being the amount of a certificate hearing date the 28th day of June, 1851, drawn and signed by D. P. Bushnell, Clerk of the House of Representatives, and countersigned by himself, as Speaker of said House, ■certifying that there was then due the said relator, for services as a member of the Legislature, the said sum of $97.
    As an answer to the preliminary order, granted in this matter to show cause, it is, by stipulation, admitted that the facts set forth in the affidavit, upon which the order was granted, are correctly stated. By this affidavit it appears that the relator was a member of the Legislature, from the county of Monroe, for the year 1851; that on the first day of the general session for that year, he appeared and took the constitutional oath as such member; that afterwards, and on the same day he was elected Speaker, and on being qualified, entered upon and continued to perform the duties of the office, during that, and the succeeding extra session.
    It further appears that the relator has received his per diem, allowance and mileage as Speaker, but claims, by reason of his election to the office -of Speaker, that he is legally entitled to double pay — to his per diem allowance and mileage as Speaker, and also to his per diem allowance and mileage as a member. And it further appears, that said certificate, which is for his per diem allowance and mileage as a member at the extra session, was on the day of its date, presented to the respondent for payment, and payment thereof then and there refused.

      J. G. Thurber, in person.

      W. Hale, Attorney General, for respondent.
   By the Court, Pratt, J.

The application in this matter for a mandamus, must be denied. -There is no ground upon which it can be sustained.

Under the former constitution, the amount of compensation allowed to members and officers of the Senate and House of Representatives, was settled upon and fixed annually by the Legislature itself. But the amowit is no longer the subject' of legislation; it is now clearly and definitively settled and fixed by the Revised Constitution. Section 15 of article 4 of that instrument, provides as follows: “The compensation of members of the Legislature shall be three dollars a day for actual attendance and when absent on account of sickness, for the first sixty days of the session for the year 1851, and for the first forty days of every subsequent session, and nothing thereafter. When convened in extra session, their compensation shall be three dollars a day for the first twenty days, and nothing thereafter. They shall be entitled to ten cents and no more, for every mile actually traveled, going to and returning from the place of meeting, on the usually traveled route; and for stationery and newspapers not exceeding, five dollars for each member during the session.”

By section 1Í of the same article, it is provided that “the President of the Senate, and the Speaker of the House of Representatives, shall-be entitled to the same per diem- compensation and mileage as members of the Legislature, and no more.”

These provisions of the fundamental law of the State, which have been in force since the first day of January, 1851, are clear and explicit, neither ambiguous nor in any manner uncertain as to the intent of the framers; nor do they require judicial construction to ascertain their meaning, or to give them effect. By these provisions, it is-perfectly certain that the framers of the revised constitution did not intend that a member of the House who might be elected Speaker thereof, should receive any extra or additional compensation by reason of such election. But it is contended by the relator that he officiated in the capacity of both member and Speaker, and is therefore entitled to his per diem compensation and mileage, in both capacities. This however, is an assumption based in the main, upon false premises. It is true, he went into the House a member; and it is equally true, that notwithstanding his election to the Chair, he, at times, when the House was in committee of the whole, officiated as a member of the body. But while he was thus officiating as a member, he had no duties to perform as Speaker; and when officiating as the presiding officer of the House, he had no duties except voting, to perform as a member. By his elevation to the Chair, he was entirely relieved from all the very onerous duties usually devolving upon the select and standing committees of the House, and which ordinarily engross a very great proportion of their time when out of session, in laborious investigations; in drawing reports, bills and amendments, for the action of the House when in session. The labor of the relator, therefore, instead of being increased by his election to the Chair, was, in fact, very much diminished; hence, the claim preferred, on the ground of his having discharged double duties, rests upon nothing better than mere fiction. And his claim for double mileage stands upon no better foundation; for he was not required, nor was it necessary, in consequence of his election and installation in the Chair, to travel the route between Monroe and “the place of meeting,” twice over each way, nor did he in fact do so. Upon what principle, then, does he predicate his claim for double pay, or for double travel ? But it is entirely unnecessary to discuss the question; the constitution settles the whole matter. “The Speaker is entitled to the same per diem compensation and mileage as a member and no more.” In New of the language of the constitution on this subject, any member of the House could claim double compensation, and especially double mileage, with as much propriety as the Speaker; both, in relation to their compensation, by the constitution, being placed upon an equality.

The relator having received his' per diem allowance and mileage as Speaker, has ms further claim on the State for sendees rendered in the Legislature for 1851, and the respondent was justifiable in refusing payment on the certificate presented.

Motion for mandamus denied.


author: By the Court, Wing, P. J.

text:
    Hollister vs. C. and J. P. Loud, Johhson & Higby.
    A voluntary deed of assignment for the benefit of creditors, containing covenants on the part of the assignees or trustees, and stipulations beneficial to the creditors, is, inlavr, to be deemed and taken as founded upon valuable consideration; and the assignee is in such case, in legal contemplation, a purchaser for a valuable consideration.
    The actual secret intent of the assignor, however bad, cannot affect a bona fide purchaser without notice.

      A conveyance is not void for fraud, because its effect is to hinder, delay, and obstruct creditors. To render it so- it must be made with that intent.

    The fraudulent intent of a grantor'should be clearly established by proof. It will not be sufficient to deprive the grantee of his deed, that the grantor suffered the bill to be taken as against him pro confcsso, especially where the grantee expressly denies all knowledge of his grantors fraudulent intent.
    It is no objection to the validity of an assignment, that it was made in anticipation on the part of both assignor and assignee, of the immediate issuing of attachments against the property of the assignor.
    The fact that the assignees suffered one of the assignors to occupy promises conveyed in the deed of assignment, during a period when such property was not usually rented, the assignees in the meantime taking the crops, and expressing their intention to charge the assignor occupying the premises, the fair rent, in the absence of any understanding that he should occupy them free of rent, cannot be urged as evidence of a secret trust on behalf of the assignor.
    It is no objection to an assignment that no time is limited by it for closing the trust.
    "When the provision is, that the assignees shall proceed to sell the property and pay the debts within such time as to them shall seem meet, it puts the execution of the trust under the control of the Court of Chancery, which will compel the assignee to use reasonable dililt has never been held a valid objection to an assignment, for creditors, except in connection with other proofs or badges of fraud, that no schedule was annexed to the deed at the time of its execution.
    An assignment reserving property exempt from levy and sale on execution, is not for that reason, void. The same rule held in England, under the statute, (13 Elizabeth,) that to make a voluntary assignment void as to creditors, it must embrace property subject to be taken on execution for the payment of debts, and that the statute was not intended to enlarge the remedies of creditors, must prevail in this State.
    It cannot be objected to an assignment of this kind, that it provides for the private creditors of the individual members of the firm, where the individual property of the members included in the assignment, exceeds the amount of each one’s individual debts.
    Fraud must be distinctly and clearly made out, and cannot be inferred from circumstances of an equivocal tendency. It is not to be lightly presumed, after a denial in the answer, nor to bo inferred upon slight evidence. It is not to be considered as a single fact, but as & •conclusion drawn from the circumstances. (Vide Manning vs. Pierson, post.)

    Appeal from the Jackson Circuit Court, in Chancery.
    The complainant and appellee, a judgment creditor of two of the defendants and appellants, O. and J. P. Loud, filed his hill to set aside as fraudulent, a voluntary assignment, purporting to he general, and with preferences, made by the two Louds who were co-partners, to the other defendants and appellants, Johnson and Higby, so far as said assignment operated as a conveyance of real estate in the counties of Jackson and Eaton. The assignment was drawn by the defendants Johnson and Higby, attorneys of the assignors, for that purpose, on Sunday, 21st October, 1849, and executed and acknowledged on the day following. The schedule of the assigned property was made out in some two weeks, but not actually attached to the assignment until in January following, although in the hands of the assignees, together with the assignment, in the 'meantime. The assignment by its terms, in consideration of one dollar and the covenants therein contained, on the ' part of the assignees, purported to convey all the property of the assignors owned by them jointly or severally, except such property as was by law exempt from levy and sale on execution. It provided that the assignees should forthwith take possession of the property and within such reasonable time as to them should seem meet, convert it into money, and Firstly, Pay in equal proportions the several debts due and owing from the assignors, either jointly or individually, to certain creditors named therein, most of whom were residents of Jackson county, and generally all creditors in said county whose demands did not exceed one hundred dollars, one Amos Root being included in the first class, in compliance with a request of the assignees, who had been pre-viously spoken to by said Root in reference to their collecting or securing his demand: Secondly, That the assignees should pay out of ‘ the residue of said property, in equal proportions, all the other creditors, except the complainant and certain creditors specially excepted: And thirdly, That out of the residue of said property, the complainant and other creditors, specially excepted out of the second class should be paid in equal proportions. The complainants having perfected judgments against the Louds on or about the 13th of January, 1850, sued out writs of fieri facias thereon, which were severally levied, one on the lands in Jackson and the other on the lands in Eaton county, included in the deed of assignment. Before writs issued, the assignees had taken possession of all the property, sold the personal property, and the real estate was advertised by them for sale. At the time of making the assignment the assignors were apprehensive that the complainant would sue out attachments against them forthwith. Caleb Loud, one of the assignors, was permitted to remain on part of the real estate assigned, up to the time of filing the bill, but the assignees had taken all the crops from the premises and intended to exact from him the fair rent of the premises. The bill was taken as confessed by the defendants, G. & J. P. Loud. It was answered by the defendants Johnson & Higby, denying tbe fraud and all knowledge by them of any fraudulent intent in tbe Louds. Tbe cause was brought to hearing in the Court below upon pleadings and proofs taken in open Court as to the two last named defendants, and upon the bill taken as confessed by tbe Louds, at the December term of the Jackson Circuit, 1850, before his Honor, Judge Pratt, and a decree made, in pursuance of the prayer of the bill, declaring the assignment fraudulent and void as against the complainant, and from that decree the defendants Johnson & Higby, appealed to this Court.

      Johnson & Higby, appellants in person.

      N. H. Joy, for appellee.
   By the Court, Wing, P. J.

The complainant by his bill seeks to have the assignment set aside and declared void, as having been made to hinder, delay or defraud creditors.

Our statute of 1846, page 328, section 1, provides that “any conveyance or assignment, &c., made with the intent to hinder, delay or defraud creditors, &c., as against the person so hindered shall be declared void.” Section 5 provides that “ none of the provisions of this act shall be construed in any manner to. affect or impair the title of a purchaser for a valuable consideration unless it shall appear that he had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.”

As between the grantors and the grantees the deed is good and passes the title; but it is denied that the indebtedness of the grantors to their creditors, or the nominal consideration of one dollar, or the covenants on the part of the grantees, either or all, constitute a valuable consideration. But such trust conveyances containing covenants on the part of the trustees or assignees, and stipulations beneficial to the creditors, are to be deemed and taken as founded upon a valuable consideration. The assignee therefore, is in legal contemplation a purchaser for a valuable consideration, and becomes vested with the legal estate in the property assigned. (2 Johns. Ch. Rep., 189; 10 Pick, 413; 2 Kent's Com., 533; Roberts on Fraud. Conv., 434; Gorham vs. Reeves, 1 Smith Indiana, Rep., 239.) It is upon this principle that all assignments to trustees for creditors have been sustained. The trustee does not actually buy the property and pay for it.

It must be shown then, by the complainant, that the parties to the deed, entered into it as a device for the purpose of hindering, delaying or defrauding the creditors of the grantors; that it was not intended by the parties to it, and especially the assignors, to carry its provisions into effect, bona fide, but that it was intended as a means to keep the property from the creditors, or this creditor in an especial manner, and from motives'of malice or guile, or thattfre deed of assignment contains provisions or trusts which are prohibited by law, on account of which, it is to be deemed fraudulent and void. The actual secret intent of the grantor, however had, cannot affect a bona fide purchaser, without notice. (Astor vs. Wells, 4 Pet. Cond. Rep., 513; Wheaton vs. Sexton, 4 Pet. Cond. Rep., 519; 11 Pick., 50; 1 Johns. Rep., 30; 5 Pet. Cond. Rep., 344; 6 Ib., 223; Gorham vs. Reeves, 1 Smith’s Indiana Rep., 239.)

As to the intent, the Editor of the American Leading Cases, in a note to the case of Salmon vs Bennell, 1 Vol., page 54, says these attempts to reduce fraud in all cases, to a matter of actual intent, is not only opposed to all prpiciple and authority — to common justice and to common sense, but has been frustrated by the very forms and constitution of the Courts, and cannot be "successful until the respective functions of the judge and jury are changed; for the Court obviously possesses the same control over the subject in the form of a direction to the jury, as to the force of presumptions on a question of fraudulent intenfr as they formerly exercised through the medium of a peculiar definition of fraud; and to prevent irregularity and injustice this control must be exercised, and this practice is established by Vance vs. Philips, (6 Hill, 433.) In Chancery, however, there used to be no practical difference between the present and the former rule or law. This Court, sitting in Chancery, exercises the functions of judge and jury at law. We will therefore proceed in the first place, to an examination of the evidence, independent of that which is contained in the deed.

The fact that the assignors and assignees were informed of the intenlion of the complainant to sue out a writ of attachment, the next day, for the purpose of seizing the property of the grantors, is dwelt upon with great earnestness by the counsel for the complainant, as evidencing an intention by both parties to the deed, to forestall and defeat the legal remedy of complainant. The force of the argument on this point must depend upon the right of the assignor to make, and of the assignee to receive, a valid assignment under such circumstances. It is a maxim of the common law, that vigilantibus non dormientibus leges subvenient, but the rule of equity Courts is, that equity is equality, and a distribution of a debtors property among his creditors is particularly favored in those Courts. It is upon the principle of the common'law maxiiñ that complainant makes his claim, and insists that the assignment is void; and that he being the most vigilant creditor, is entitled to have the property conveyed by the assignors, appropriated to the payment of his debt; and yet, the equities of both parties are equal; the one is a creditor, and the other represents creditors.

It is said, assignments to trustees for the benefit of creditors, are an invention of comparatively modern origin. Courts of law said the principle of such assignments trenched upon the fundamental maxim of the common law, and that it was apparently repugnant to the very wording of the statute of frauds; but the rule of the Chancery Courts,, that equality is equity, prevailed over the common law principle, and the Courts permitted the debtor to arrest the diligence of one creditor, in order to provide for the interest of all. (Tracy, Senator, 11 Wend., 216.)

Acting upon this principle, it has come to be an' established rule of law in this country and in England, which is sustained by a train of decisions in the Courts of both countries, that á debtor in failing circumstances, may, in the absence of any existing lien, make a conveyance or assignment of the whole of his property for the benefit of a single creditor, in exclusion of all others, or he may distribute it in unequal proportions, either among the whole or a part of his creditors. (4 Mason’s Rep., 210; 15 Johns. Rep., 583; 5 Cow., 547; Nevin vs. Nillsmore, 8 T. Rep., 521; Estwick vs. Caillard, 5 T. R., 402; 4 East, 1; Small vs. Oadly, 2 Pr. Williams; Phoenix vs. assignee of Ingraham, 5 Johns. Rep., 412, '26, '27; 3 Ib., 83; 5 Ib., 544; 2 Ib., 307; Nicoll vs. Mumford, 4 Johns. Chy. Rep., 526, ’7; 1 Binney, 502.)

The fact that this class of conveyances is often resorted to in this, country, and the further fact that in much the largest portion of them, what are esteemed unjust preferences, are made, and secret trusts are created for the benefit of the debtor, has occasioned a great and growing; prejudice against them; and this may have been increased in this State, by the fact that the rulés which the caution of Courts had established, and by which certain things which were held to he badges of fraud, and others which were deemed conclusive evidence of fraud, have been changed by statute, and a more lax rule established, by which a question of fraud is made a question of fact, and not .of law. But until some other mode is devised, which promises greater security for the interests of creditors generally, than this system affords, it must and will prevail. Every safeguard which the statute or common law has thrown around our persons and property, may he abused, an'd that which was intended as a shield for protection, may he made a weapon of offense,, and an engine of mischief in the hands of had men. But not for this reason should we abandon all trust in the law or in men, and cease to he governed by fixed legal principles. “Men have differed, and will, continue to differ as to the benefits or expediency of this scheme; but it is thought to be the better opinion, that in the absence of a general bankrupt system, the interests of a commercial community require that they should be sustained. They have accordingly grown into use, and have been sanctioned by judicial decisions in most of the States of the Union, and have become thoroughly incorporated into our system,” and consequently the force of the legal maxim which we have quoted, must be held in subjection to the equitable rule.

In this State, every man has the jus disponendi of his property, unless it is subject to either an equitable or legal lion. It makes no-difference that he is in failing circumstances — that suits are threatened' or are pending — that judgments exist against him, nor that executions against him are in the hands of an officer and a levy is momentarily expected, but not made. Under any or all of those contingencies, he has the full and absolute right to dispose of his property. He may pay his debts with it. He may exhaust all his property in paying one creditor, leaving another unpaid, and lastly, he may assign his property to trustees for the benefit of creditors; provided always, that ho does it bona fide, and without any intent to hinder, delay or defraud them. This will fully appear from an examination of the authorities we have cited.

If the effect of a conveyance be to hinder, delay or obstruct creditors, it is not therefore void. The statute was not designed to restrict the right of a debtor to pay his creditors, whom moral duty and a sense of justice may dictate the propriety of paying or securing, or from doing equal and exact justice to all. “ Every conveyance of any part of the debtor’s property may have the effect in a greater or less degree to •hinder and delay creditors; as it withdraws from their legal grasp the means, pro tanto, of coercing their debtor.” To render it fraudulent, it must be done with the intent to hinder, delay or defraud, but if made with no such intent, but with» honest motives and with the higher or nobler intent and purpose of paying all equally or of providing for •those who are the most meritorious, it will be sustained.

In the case of Pickstock vs. Lyster, (3 Maule & Selwyn, 371,) Lord Ellenborough says, in speaking of assignments made with a view to an equal distribution of the debtor’s property, that it was to be referred to an act of duty rather than of fraud, when no purpose of fraud is proved. The act arises out of a discharge of the moral duties attached to the character of the debtor to make the fund available for the whole body of the creditors. Bailey, Justice, says this conveyance so far from being fraudulent, was the most honest act the party could do. Rot having sufficient to pay all his debts, he proposes to distribute his property in liquidation of them. In Eastwick vs. Caillard, Lord Kenyon said “ it was neither illegal nor immoral to prefer one creditor to another.”

The object of the statute was not to prevent such conveyances as might operate to hinder or delay creditors, but only such assignments as were in their inception and intention fraudulent and void. It is the fraudulent intention, the mala mens, with which the conveyance is made that constitutes the fraud against which the denunciations of the statute are directed.

We have made this somewhat extended statement of the history of assignments and the principles upon which the decisions of Courts in ■this class of cases aré founded, for the purpose of ascertaining our true ’ position and of establishing the point from which these transactions are to be viewed, and from which we are to start, in entering upon an investigation of this case. We are satisfied from the scope and spirit of the decisions, that such transactions should be closely scrutinized and regarded with distrust.

It is a remarkable fact in this case, that the assignors, who are charged with having violated the law, and who were made parties to the bill by-a personal service of the subpoena, should have suffered it to be taheñas confessed against them. It is not often that persons who have made assignments, allow such charges to be placed upon the record without an explicit denial of them, ■ Still less frequent is it, that the grantors in such deeds, confess their iniquity to then creditors, whose legal remedy has been delayed or defeated by it, (as is charged in this bill.) It indicates that the assignors have changed sides, either in consequence of some dissatisfaction with the assignees, or their creditors. The personal property it would seem, was sold immediately after the assignment was made — when the executions were issued in January, it had all been disposed of, and the real estate had been advertised for sale. There seemed to be hut little chance for them to derive any benefit from the assignment, as the assignees werq rapidly closing up the trust. This bill was filed in February following. The admissions of the assignors, by their pro confesso, were made in legal contemplation, sometime in March or April. In the meantime, the complainant or his solicitor, had seen and conversed with the assignors, when they admitted (as the bill charges) that the assigment was made to hinder, delay, &c. The assignors were sworn as witnesses in the case, in behalf of the complainant.

It would have been competent for the complainant to compel the witnesses to disclose every fact or circumstance tending to show the intent by which the parties in the assignment were governed; it would naturally be expected that the complainant would have exercised his ingenuity in compelling a full development of the plans of both parties in all their details. The fact that they asked so few questions and those of a character so general, is perhaps evidence that they did not know or suspect any other matter or fact not disclosed. The assignors may have been willing that the bill should have been taken pro confesso against them, and at the same time unwilling to confirm by an oath what was thus formally admitted. The witnesses give no intimation of any intent on their part beyond a desire to devote their property to the payment of all their debts. It is upon the force and effect of this pro confesso that the complainant relies for proof. of the intended fraud. We however, think that but little dependence can be placed upon this kind of evidence, under all the circumstances. In the case of Hildreth vs. Sands, (2 Johns. Ch. Rep., 35, 43,) a bill was. taken pro confesso against the assignor charged with a fraudulent intent to hinder creditors, &c. Chancellor Kent remarked: “In the present case it would be too rigorous to deprive the grantee of his deed, however innocent he might be, upon the mere fact that the grantor suffered the bill to be taken pro confesso. This might have happened from collusion with the plaintiff, or from ill will to the grantee, and although no such motive is to be suspected in the present case, yet before the above principle is to be applied, I should say there ought to be more evidence of the fraud than mere implied admissions of a co-defendant who neglects or refuses to answer.” The evidence of these witnesses is substantially the same as the answers of the assignees as to the circumstances attending the making of the assignment. We therefore think that this last description of evidence does not tend to throw any light upon the character of the original transaction •, especially in connection with the explicit denial of the assignees of any knowledge of an intended fraud by the assignors. They deny their belief of such intention, and they also deny that they had any intention to effect such a purpose by any agency or participation of theirs in the transaction, from the beginning to the end of it. Whatever the secret intention of the grantors may have been, they were not disclosed to the assignees. They offered no inducement to have the assignment made, they did not urge it, and they seem to have finally yielded to the solicitations of the assignors to accept the trust. The creditors knew nothing of the transaction, and it does not appear that the assignees were the attorneys of any of the creditors. It seems a Mr. Root had before spoken to Mi'. Johnson to get his claim secured, but it does not appear he undertook to act for him, as Root was put in the first class of creditors to be paid.

In almost every case to be found in the books, the debtor is stated to have been alarmed by the vigorous pursuit of his creditors, by means of legal proceeding's, and in many of the cases he is reported to have stated his apprehensions to some friend, disclosing the fact that he expected executions out against him, and after disclosing his apprehensions, he has made his confidant his assignee. This was the ease in 4 East., 1; in 5 D. & E.; 7 Wheaton, and 1 Binney, cited above; and yet the assignments were held valid. Something more must appear — something like malice, covin, collusion or guile, must be manifest from the transaction taken together, before fraud can be found by a jury or a Court.

The fact that the assignment was made on Sunday, was treated by the counsel of complainant in his argument, as an indication of a fraudulent intent. It certainly indicates that the assignors were in a hurry to finish the' assignment before an attachment could be sued out. It was not executed on Sunday, and not until early the next morning. It _ was expected the attachment would be sued out and levied in the mom'ing of the next day.

It is not charged that the transaction was veiled in secrecy, or that it was not generally known the next day. If complainant had intended to take out an attachment the next day, why did he not do so ? Most probably he knew the assignment had been made, for the assignees took immediate and open possession of the property. The fact that they allowed Caleb Loud to remain on the farm up to the time the bill was filed, and during a period when houses and farms are not usually rented, adds nothing to the force of the proof, as the assignees in their answer, say they suffered him to remain until they could find a purchaser for the farm, which was advertised for sale. They took the wheat crop off from the farm, and but a very short time elapsed before they wore enjoined. They say they intended to collect the fair rent of the farm, and there was no understanding that Caleb Loud should occupy it free of rent. Under such circumstances it can hardly be said, that a failure on the part of the assignees, to do that which might have savored of rigor towards the assignors, should be urged as evidence of a secret trust in his behalf. The fact that complainant’s suits at law, then pending, were continued from time to time till early in January, some three months after the assignment, and upon the oath of the assignors, seems to have very little if any hearing upon the case. If the suits which had before been continued from July to October had then been permitted to go undefended, it might have occasioned some suspicion. The assignees were bound to defend‘the suits if there was a good ground of defense to them, (and it is not alleged there was not,) and finally it was their duty to abandon the defense if they could not obtain the attendance of witnesses. There are no facts proved in relation to this matter, besides those we have rehearsed. There is no proof of the charge that the parties to the assignment preferred their creditors in Jackson county, for the purpose of securing their friendly aid in sustaining the assignment; nor is there any proof that it was done at the special instance, or by the influence of the assignees. The evidence shows that the assignors suggested the name of Mr. Holmes as assignee, but Messrs. Johnson and Higby advised them that he was not a man of sufficient character or influence. What kind of a man he was does not appear. Upon this suggestion being made, the assignees solicit Johnson & Higby to take the assignment, and they at last agreed to do so.

That the Jackson county creditors were preferred, appears upon the face of the assignment; but the reason for this being done is not shown. The fraudulent motive assigned in the bill for this act is fully denied by the assignees, so far as they had any knowledge on. the subject. This charge is urged in connection with the fact that complainant is placed in the third class of creditors, and that he is expressly excepted from the second class. This exception may have been made, as the most convenient way of designating those who were to be included in the second class, as those who were excepted were much less numerous than those that were included in that class.

The principle upon which Courts are supposed to have acted, in sanctioning assignments for the benefit of creditors, is, that it enables a debtor to distribute his goods equally, among them; this approaches the nearest to the mode of distribution which prevails under bankrupt laws. But it is singular, as remarked by Senator Tracy in the case of Grover vs. Wakeman, (11 Wend., 217,) that where the right of an insolvent to lock up his property from the legal pursuit of one creditor by a deed of assignment, was pnt upon the principle of securing its equal distribution among all his creditors, that it was immediately extended so as tojsmbrace and combine with it another and completely contradictory principle, that of preference among creditors; but so it is, that voluntary assignments which were first allowed, to.prevent inequality in the distribution of an insolvents assets, are now resorted to as a most efficient means for securing this inequality. If it be true, then, that the assignors exercised this undoubted right, no prejudice can result to the assignment, from the fact that complainant’s demand was put into the third class, unless an inference of malice or collusion can be drawn from it, connected as it is with the fact that the complainant was vigorously prosecuting his claim at law. The comparative merits of Ms claim are not made to appear-. We are not informed that the preferred claims were not the most meritorious. That a preference should be given to those persons having claims growing out of confidential neighborhood dealing, such as debtors usually feel it to be their duty to prefer and secure, when they find that their property must go, has always been commended by Courts, and has usually been considered just. (See opinion of Chief Justice Thompson, in Riggs vs. Murray, 15 Johns. Reports, and the opinion of Judge Sutherland, 11 Wendell, 200, 201.) Complainant was a merchant who charged profits on his goods. He may have been unfair in his exactions, though it does not appear that he was so. The assignors had the means of judging of these matters, and the right to discriminate between creditors.has been fully sustained. If it is urged as an evidence of fraud that the pursuing creditor is not named in the first class, but is put off to the third class — if this is of itself a badge of fraud, then a new rule or badge of fraud is introduced into the law, wMch controls- the right of preference. Whatever the motives might have been, wMch induced the preferences stated in the assignment. Courts do not, and cannot question the right to make them. (11 Wend., cited above; 2 Kent Com., 335.)

Again, it is tu-ged as an objection to the deed of assignment, that no time is limited by it for closing the trust. The provision in the deed is, that the assignees shall forthwith take possession, <fec., of the property, and within such reasonable time as to them shall seem meet, convert it into money, and pay, &c.” This provision, wMlst it does not restrict the trustees to an unreasonably short period, does not give them an unreasonable time. It puts the execution of the trust under the control of a Court of Chancery, which will compel the trustee to exercise reasonable diligence. (17 Sergt. & Rawle, 251; 6 Mass. Rep., 343; 8 Pick., 559.)

It is objected to the validity of the assignment that no schedule was annexed to the deed, at the time of its execution. We have seen that this matter is fully explained by the answer and proof. Except in connection with other proofs or badges of fraud, this objection has never been held to be sufficient, and it is does not constitute a link in the chain of evidence, where it is as folly explained as in this ease. The property vested in the assignees at the delivery of the deed, whether the schedules were perfected then or not. (1 Sandford Superior C. R., 4; 2 Ed. Ch. R., 264; 6 Mass., 339; 4 Wash. C. C. R., 232; 1 Binney, 523; 15 Conn., 132; 2 Paige, 311.) If the assignors had failed to make the schedules, a Court of Chancery, on a bill of discovejy, would have compelled them to disclose and deliver up the property.

It is objected also, that the assignors direct that the balance remaining, if any there should be after all the debts were paid, should be paid over to the assignors. This does not raise a suspicion of fraud in this case. A case might exist in which it would have an important bearing, as for instance, if an individual creditor of a firm should complain that the property of a partnership which was considerable was assigned to pay a small amount of debts, and was tied up in the hands of a trustee until all claims against the firm were paid. This would postpone the individual creditors. (See 9 Paige, 302.) Hence the individual creditors are in the first class. After all the debts are paid there would be a resulting trust, and a Court of .Chancery would compel the trustees to account and pay over to the assignors. (9 Paige, 302; 8 Watts & Sergeant, 304; 11 Wend., 235; 7 Cow., 735; 5 Watts & Sergeant, Dana vs. U. S. Bank,) where this subject is much discuesed.

Another ground of objection is that the assignors reserved from the general mass of the property, such of it as was by law exempt from levy and sale on execution. This question has been raised under the statute of 13 Elizabeth. It is the settled law in England, that to make a voluntary conveyance void as to creditors, it must embrace property subject to be taken on execution fol tbe payment of debts. It is held there, (as it must be here,) that the statute was not intended to enlarge the remedies of creditors. That would be a strange anomaly, (says Judge Story in 1 Eq. Juris., sec. 367,) to declare that to be a fraud upon creditors, which in no respect varied their rights or remedies. We cannot perceive why this same doctrine should not apply as conclusively to a conveyance which withholds property from creditors which is not subject to execution, and which is expressly and in all contingen- - cies saved to the debtor by statute law.

As to the property which was for the'time being withheld, and which was allowed to the assignors by the assignees, as being exempt by law, we say, if the property was not exempt, it at the least was assigned and vested in the trustees. The assignees must settle that question with the assignors. The creditors will hold them responsible, if the property was not exempt; it was not done secretly — the parties attempted to act under the law.

It is also objected that the private creditors of the individual members of the firm are included in the assignment, when all the property assigned is alleged to have been the avails of the partnership business, and to have belonged to the firm. The assignees say in their answer, that they do not know that there are any private debts of either of the parties. The assignors in their evidence, state that they owed some small debts; but judging from their statements, the amount was very inconsiderable. The answer of the assignees, and the evidence of the witnesses, establish the fact that a considerable portion of the real estate . assigned, including town lots, houses, and a farm, belonged to the indiividual members of the firm; the witnesses say it was bought with the avails of the partnership business, but it was then separate, private property. The fact that those lots were purchased with funds derived from the partnership, does not make it partnership property. Partners frequently draw from the stock of the firm their several 'portions of the profits, and make purchases for their own private use, and if they should assign it to pay the debts of the firm, the private creditors might complain, and ask the aid of a Court of Chancery to appropriate it to the payment of their debts. In this case the private real estate was not used by or devoted to the use of the firm. Of the land, the parties held together, they were tenants in common, and each one owned a moiety as his individual property. (Coles vs. Coles, 15 Johns. Rep., 159; 11 Mass. R., 469; Goodwin vs. Richardson, 2 Edw. Ch. Rep., 28.) We cannot see that the creditors of the firm were injured by the individual creditors being included in the assignment, as the private property assigned by each partner, exceeded his private debts, and the individual partners could not complain, as they were embraced among the preferred creditors. Upon what principle can the partners claim that the several partners were bound to give up their private property for the benefit of partnership creditor's, to the exclusion of their private creditors ? Both sets of claimants were alike meritorious. It is not charged that this private property was purchased after the partnership debts were contracted. The partners could have no claim as against each other, that the private property purchased with partnership funds, should be devoted to the payment of partnership debts. There does not appear to have been any unauthorized appropriation of the funds of the firm, to private uses. What each partner took, seems to have been taken by the mutual assent of both of them.

We have thus examined with some degree of minuteness all the evidence in the case, as well that which is furnished'by the depositions of the witnesses and the answers of the assignees, as the provisions contained in the deed of assignment itself, and we have been unable to find those evidences of fraudulent intent on the part of the assignors, which, in any of the cases we have read, have been held to be conclusive or strong evidence of fraud.

This Court held in the case of Buck vs. Sherman, (2 Doug. Mich. Rep., 176,) that fraud will not be presumed upon slight circumstances, the burthen of proving it will rest upon the party charging it. The Chief Justice, in delivering the opinion of the Court, said: “The proof should be so clear and conclusive as to leave no rational doubt upon the mind.” It is said in 8 Cowen’s Rep., by Woodworth, Justice, that fraud may be presumed in equity from circumstances, though in law it cannot. (1 Dessarn, 309.) Other Courts have held with ours that fraud must be clearly and distinctly made out, and cannot be inferred from circumstances of an equivocal tendency. (23 Maine Rep., 46; 2 H. & J., 414.) It is not to be lighly presumed after a denial in the answer. (4 Dessaus, 473.) Nor is it to be imputed upon slight evidence. (3 Dessaus, 12.) It is not to be considered as a single fact, but a conclusion to be drawn from the circumstances. (2 H. & J., 292, Broyden vs. Walker.) If we apply these principles to this case we shall find that the assignees fully deny every fact outside of the deed which can affect them with a knowledge of an intention on the part of the assignors to hinder, delay, &c., within the meaning of the statute.

We cannot see anything in these facts which distinguishes them from those stated in a large v proportion of the cases we have cited. The complainant was about to sue out a writ of attachment by which he would seize upon sufficient property to pay his debt; no one could (as under former statutes) participate with him in the benefits to result from such a proceeding. He would have acquired the same preference over other creditors, as if he had levied an execution upon the debtor’s property. This proceeding would have resulted in applying a large portion of the assignors’ property to the payment of a single debt, and would have defeated all just preferences, which the law seems to treat as just.

Mr. Tracy in the ease which we have cited from 11 Wendell, says: “ Either principle, that of assignment or that of preference, standing by itself, might very well be questioned; but brought together they form an unnatural coalition, from which little that is salutary or honest can be anticipated.” Granting that there are great objections to preferences, and that this power is very liable to be abused, and prostituted to dishonest purposes, still it is engrafted into our law, and the power so far as we know has been as fairly exercised in this case, as in any of the cases we have cited. There does seem to be something a little repugnant to our sense of right and fairness in the fact that the man whose legal diligence was thwarted, should be placed in the third class of creditors, and may possibly never receive any dividends, but we have no proof as to the merits of his claim, which should lead us to infer that a fraud must have been intended, and this Court sitting as a Court of Chancery, are not to assume that because the complainant was the most diligent, he was therefore the most meritorious, or that he had any superior equity over any of the other creditors.

Some of the States have passed laws prohibiting preferences; until this shall be done in this State, the power to make them, will exist as a legal right. We can see nothing in the preferences in this case which is inconsistent with that measure of discretion, which, the law allowed to the debtor. These creditors for whom provision was made, for aught we know or that has been intimated by counsel, were a meritorious class of creditors, and most likely the most ignorant and unsuspicious— some of them were mechanics and laborers, who confided in the integrity of the grantors.

In the general aspect of the case, it will be noticed that the assignors did not part with all their property; that they reserved what was by law exempt from levy and sale on execution. The equitable' rule of which we have spoken, appears not to be satisfied with a surrender of a part of a debtors goods; it seems to exact the whole. The fact that the debtors in this case have, to the extent of the exemption, made their own terms and sought the protection of the law, and thus departed from that generous and honorable standard which the equitable rule commends, would appear when it is first presented to the mind to detract from'the supposed fairness of the assignment. But we have seen that when properly and fully considered it will not appear to be objectionable. The debtors have saved nothing which the creditors, under the most rigorous enforcement of the law could have obtained or claimed; and shall we say that because they have reserved to themselves what the law could not have exacted or taken from them, that therefore they shall not have what the law would hare allowed to them ?

This assignment has been attacked at so many points, unless we bear in mind that so far as relates to the provisions in the deed, none of them are vulnerable,' we may be inrpressed with the idea that the attack has been in some way or another successful, without being able to point out a single breach. Certain it is, no impression has been made upon any of the clauses of the deed. As to the rest of the case it will be found that the charges of fraud so often repeated, have not been supported by the proof, which has failed to afford any definite, or at least conclusive indications of fraud.

Taking a general view of the facts exhibited in the record, and looking at them as a whole, we are constrained to remark that we can perceive nothing in them that will lead the mind to a rational conclusion that the assignment was made or contrived in malice, fraud, covin, or guile, with the intent or purpose of hindering, delaying, or defrauding creditors — nothing that is not reconcileable with the undoubted right of providing for and securing a favored class of creditors.

' The judgment of this Court is, that the decree of the Circuit Court be reversed, with costs to the defendants of this Court and of the Circuit Court, and it is ordered that this case he remitted to the Circuit Court for the county of Jackson.

Johnson, J,, being a party, did not participate in the decision of this cause.

Creen and Copeland, Judges, did not concur.


text:
    Phenix et al., plaintiffs in error, vs. Clark, Supervisor, defendant in error.
    Supervisors being ex officio assessors of their respectivo townships, and required by law (R* S., 1846,pao-e 91,) to preserve and keep all books, assessment rolls and other papers belonging to their office, have the absolute and exclusive right to the possession of the rolls, and are authorized to bring suits in their official character to recover possession of them.
    'The affidavit required in actions of replevin to be annexed to the writ before it can be executed, must contain the statement “that the property was not taken for any assessment levied by virtue of any law of this State;” also, “ that it was not seized under any execution against the goods and chattels of the plaintiff liable to execution.” These averments are made necessary by the statute, without regard to the nature of the property replevied.
    ‘Where in the Court below there was no evidence submitted as to the value of the property replevied, and the Court awarded more than nominal damages, the judgment was on that ground held erroneous.
    Error to St. Clair Circuit Court.
    Au assessment roll was taken by the plaintiffs in error from the possession of the defendant in error, who was supervisor of the township of China, St. Clair county: Plaintiffs in error being highway commissioners of said township, and claiming the right to take and keep the roll until they had completed the assessment of the highway taxes of their township, as it was their duty by law to do. Defendant in error sued out a writ of replevin in the St. Clair County Court, by virtue of' which the roll was taken, and on the trial of the replevin suit, judgment, rendered for the defendant in error and his damages assessed at fifteen dollars. The cause was removed by plaintiffs in error to the St. Clair Circuit, in which Court the judgment of the County Court was affirmed,, whereupon a writ of error was sued out in this Court. On the argument in this Court, a question was raised as to the jurisdiction of the County Courts in actions of replevin; so mueh of the opinion of' the Court as relates to that question is omitted.
    Phenix et al., plaintiffs in error, vs. Clark, Supervisor, defendant in error.

      Van By he 'Falhenbwry, for plaintiffs in error.

      W. T. Mitchell, for defendant in error.
   By the Court, Pratt, J.

In this case several questions were mooted by counsel on the argument, which need not now be considered. There are, however, some presented by the record, of sufficient importance for consideration, and upon which the case must be determined.

This action was properly brought in the name of the supervisor, who was ex-officio assessor of his township, and especially required by statute to preserve and keep all books, assessment rolls, and other papers belonging to his office, &c.. (B. S. of 1840, p. 91.) By this provision he was not only required to preserve and keep the assessment roll in his office, but officially had the absolute and exclusive right to the possession of it; and under another provision of the statute, he was legally authorized and empowered to institute the suit, in his official character, to recover the possession thereof. (B. S. of 1846, p. 529, Sec. 1.)

The affidavit attached to, and upon which the writ of replevin in this case was executed, is not only awkwardly drawn, in view of the clear and very explicit direction of the statute on the subject, but is legally defective. The language of the statute is, “that such writ shall not be executed in any case, unless the plaintiff in the action, or some other person having a knowledge of the facts, shall make and annex to the writ an affidavit, stating that the plaintiff in the action, is then lawfully entitled to the possession of the property described in the writ, and that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this State, nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution, and that such goods and. chattels are unlawfully detained by the defendant in such writ.” (B. 8. of 1846,^?. 546, Sec. L) The affidavit in this cause does not contain a statement, “that the property was not taken for any assessment levied by virtue of any law of this State;” nor does it contain a statement, “that it was not seized under any exeention against the -goods and chattels of the plaintiff, liable to execution.” The affidavit, therefore, is not in compliance with the requirements of the statute, which are imperative, aud cannot he dispensed with.

The nature of thé property replevied in this ease, is such that the omission in the affidavit might be regarded immaterial, was it not for the positive requirements of the law, and which were expressly intended by the Legislature to apply indiscriminately, to every action of replevin, whether brought in a justice’s Court, or a Court of record, and they cannot be altered or in any manner disregarded by Courts. The action of replevin is created, jurisdiction conferred, and the whole course of proceeding pointed out aud regulated by the statute; and if the plaintiff below could not make the required affidavit, he was not legally entitled to the benefit of the action.

There is another fatal error in this case. The Court could not legally award to the plaintiff below any more than mere nominal damages, without proof. On the trial below, no evidence of any kind whatever was submitted or offered on this branch of the case; and yet the Court rendered a judgment for fifteen dollars damages. The statute provides that “if upon the trial of the cause, the verdict be in favor of the plaintiff, the same jury shall assess the damages which he has sustained by the unlawful taking and detention, or by the unlawful detention of the property; hut if judgment passes for the plaintiff by default or upon an issue of law, the damages may he assessed by the Court in the same manner as in personal actions.” (H. S. of 1846, p. 549, sec. 28.) This provision of the statute clearly contemplates not mere nominal damages, but such actual damages as the plaintiff has in fact sustained by reason of the taking and detention, or the unlawful detention of the property; and they are not to be inferred, hut must he proved. A jury is not authorized in such a case, to assess actual damages without proof; nor is a Court in personal actions, where judgment passes for the plaintiff by default or ou demurrer, authorized to assess his damages without proof. In the case under consideration, the action was brought by the plaintiff below, in his official character, to recover a certain assessment roll — a paper belonging to his office. The paper was recovered; and what damages could he have officially sustained by reason of the temporary detention of it by the defendants ? Not any; but if he did, he was legally required to prove it. There was no legal presumption arising upon the subject independent of proof. And if without proof, the Court could have rendered a judgment in the case for fifteen dollars damages, why not for two hundred and. fifteen ? There is no legal ground upon which such a principle, in adjudicating and settling personal rights, can he tolerated.

The judgment below therefore, upon the two last points, must be reversed.