Opinion
Argued for the appellant and submitted on behalf of the respondent, September 29th
Decided December 29th, 1870
Homer H. Woodward, for the appellant. Elisha Mather, respondent in person.
The legal estate in the land was vested in Ira West, and his heirs and assigns by the deed of 1827. It is claimed by the appellant that the Revised Statutes of 1830, upon the death of the trustee, divested his heirs of the legal estate, and vested it in the (then) Court of Chancery, and made it the duty of the chancellor to appoint some person to execute the trust. (Section 68, p. 730, vol. 1.) The first chapter of the second part of the Revised Statutes of 1830, which includes the section referred to, made sweeping changes in the law relating to trusts as previously existing. The last section of title five of that chapter (§ 11) restrains and limits its operation, so that it shall not be construed to alter or impair any vested estate, interest or right, except as to the conversion of formal trusts into legal estates; nor so as to alter or affect the construction of any deed, etc., which shall have previously taken effect. This is not a formal, but an active trust, to manage land, collect the rents and pay them to Judah Wood during her life. At her death the duty of passing the legal title, may have been formal. It could not be dispensed with, however, without altering the vested title of the estate in, and the construction of the deed to West and his heirs. The construction urged by the appellant would wholly divest the heirs of the trustees, who are described in the deed, and alter and impair the legal effect previously given thereto by law. This construction of the statutes above given is further confirmed, as I conceive, by the plain language of sections 47 and 48, of the second article of title two of chapter one, part two. (R.S., vol. 1, p. 727, §§ 47, 48.)
Section 47 provides that every person who by grant, assignment or devise, now is, or hereafter shall be, entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest. The next section (48) declares that the last preceding section (47) shall not divest the estate of any trustees in any existing trust where the title of such trustees is not merely nominal, but is connected with some power of actual disposition or management in relation to the lands which are the subject of the trust. The latter section indicates that it was not the intention of the statutes to convert an active trust previously existing, in which the trustee had the management of the land, and the receipt and payment of the rents and income, into a legal estate in the hands of the cestuis que trust. In the present case the trustee is also clothed with the power of final disposition, by a conveyance to the children and grandchildren. Nor had these children or grandchildren any right of possession of the land or of the receipt of the rents during the life of Judah Wood. It appears, therefore, entirely clear that this trust was not affected by the Revised Statutes, and the interests of the children and grandchildren, as well as those of Judah Wood, remained equitable, and not legal estates in the land, after the revision of 1830, as before.
When this trust was created in 1827 the Court of Chancery was empowered by statute to compel infants seized or possessed of land in trust for others to convey to any other person in such manner as the court directed. (1 R.L., 148, § 7.) The Revised Statutes continued the same power. (2 R.S., 194, § 167.)
There is no provision in the trust deed forbidding a disposition of the land, or restraining the authority of that court under the statute last mentioned. The right of Judah Wood, then Judah Sampson by marriage with George Sampson, to petition with her husband and her adult children for leave to sell, and the power of the Court of Chancery upon such petition to direct the sale and conveyance by the infant trustees of the land in such manner as the adult petitioners demanded and the discretion of the court should deem advantageous, cannot, in my opinion, be questioned.
The sale and conveyance bound the adult petitioners. It has been so adjudged by the Supreme Court, and those persons have not brought any appeal, and the question as to them is not before this court. The question here relates solely to the sale of the equitable estate of Catharine Wood, an infant (now Catharine Anderson), in 1835. She was then a minor of the age of nine years. The sale purported to convey her interests, as well as those of the adult petitioners. The grandmother, Judah Sampson, was appointed guardian of her infant grandchildren, Lewis and Catharine, in the proceedings for the sale before the Court of Chancery. The same facts which made it important for the adult parties to obtain a sale of the premises and a change of the investment proved it to be equally necessary and advantageous for the infants. The fences and two small frame dwelling-houses on the premises were falling to decay, and the whole rents amounted only to $150 annually, a sum too small to keep the property in repair and afford any surplus toward the support of the grandmother during her life. Her support for life was the first object of the trust, and the land was purchased with "her hard earnings," as appears from the report of the master, who approved the sale. Judah Sampson, the guardian, was directed by the order to contract for the sale of the premises, subject to the approbation of the court. She obtained the full value, and the court approved the sale, and directed the infant trustees, in whom the title was vested, to convey by their guardian, who had been appointed for that purpose. The receipt and investment of the proceeds of the sale was confided to the master, an officer of the court, and most carefully did he perform his duty, so that the change of investment was made without the loss of a dollar. The power exercised by the Court of Chancery as to the sale of the estates of infants of an equitable nature, is inherent, and not derived from statutory authority. The power conferred by statute relates to lands of which an infant is seized, and not to his equitable estates. (2 R.S., 194, 195, §§ 170 and 175.)
One of the powers inherent in the Court of Chancery is the protection of infants and their estates. The authority to sell the estates of infants, of an equitable character, independently of any statutory power, has been exercised by the Court of Chancery in several instances in this State. We are referred to cases fully sustaining our position. ( Cochrane v. Van Surlay, 20 Wend., 375; Pitcher v. Carter, 4 Sandf. Ch. R., 1.)
The statute respecting the sale of infants' estates, above referred to, has no reference to lands held by infant trustees, and the provision declaring void every sale and conveyance in contravention of the trust expressed in the instrument, by which the trust was created (1 R.S., 730, § 65), it is believed has reference to the unauthorized acts of trustees, and does not divest the court of its power over the legal estates of infant trustees, so expressly conferred by the section of the Revised Statutes before referred to. (2 R.S., 194, § 167.)
The trust premises having been sold for their full value, were conveyed by deed, executed on the part of the infant trustees by their guardian, to Joseph Strong. The legal title became thereby vested in him; and the order of the court for the sale, the receipt and investment of the consideration paid, carried the equitable title or estate of those beneficially interested, including the infants as well as the adults. It was but a change of the investment, made for the benefit of all who were interested in the estate, in the future as well as the present. The exercise of the power in question has been long in use, has been advantageous, and ought not now to be doubted.
There are further considerations favorably affecting the case for the defendant. He derived his title by conveyance from Joseph Strong. He has been in possession, and has expended large sums in the improvement of the land. Since this action has been pending, the appellant has received her share of the investment of a portion of the proceeds of the sale to Strong. The land purchased in the town of Greece was sold in partition, by a suit for that purpose, to which all the children and grandchildren of Judah Sampson were parties, who, on her death, became vested with the title in fee. The appellant obtained her share in 1856. This action was commenced in 1854, and the answer of the defendant, setting up all the facts in regard to the sale of the trust estate and the investment of the proceeds in the land in the town of Greece, and on bond and mortgage, was served in November of the same year. The date of the commencement of the action and the service of the answer appear, from the appellant's statement, appended to the case. She is chargeable with knowledge of the facts stated in the defendants' answer. She was of full age, for it appears she was of the age of nine, in 1835, when the proceedings were had in chancery for the sale, which resulted in the conveyance to Joseph Strong. She was then about twenty-nine years of age, when she received her share of the said money. This money was her separate estate. It is urged that she was then a feme covert, and not estopped for that reason by her own acts.
She prosecutes her action and her appeal in this case by virtue of the law conferring new rights on married women for the management of their separate estates. As a feme sole, she is in like manner subject to an action as a single woman, as to her separate estate. New rights and new duties have been conferred by law upon married women, as to the control and management of their separate estates. It will not do to hold that married women are not bound by their acts, and by the just inferences from them, while acting as single women in the management and control of their separate property. In my opinion, the appellant is bound by all lawful inferences to be drawn from her action in receiving her share of the proceeds on the partition sale of the lands in the town of Greece. She knew from whence the money was derived for the acquisition of that land, and that the title had been taken in the name of her grandmother, for life, with remainders in fee to her children and grandchildren, of whom she was one. These facts were all set forth in the defendants answer in this action, served on her attorney two years before she received the money. She is chargeable with knowledge of the facts so stated. It is true, the referee finds in his report, that it does not appear that she had any information in this respect, but in his opinion he states, that he has little doubt that she had this knowledge. He must have overlooked the answer of the defendant, and the date of its service. We are entitled to look into the recorded facts of the case, which cannot be varied by any evidence. Neither Strong, who paid the money, nor the defendant, his assignee, can maintain any action to recover this money from the appellant. If she prevails, she gets both the land which produced the fund, invested in the town of Greece, and the money so invested; or at least her sixth of both. In my opinion, the claim of a sixth of the money from the land in Greece, estops her in this action, in the same manner as if she were a single woman.
There is still a further consideration against the right of the appellant to maintain this action. We have already held that the fee in the land was vested, on the death of the trustee named in the deed, in his heirs. If the sale and conveyance to Joseph Strong under the order of the court, has not been operative for any cause the legal title now remains in the said heirs. This action on the part of the plaintiffs is a claim of the legal title in themselves. If they had proceeded upon their equitable title, they should have joined the heirs of Ira West, and have asked for equitable relief. As the plaintiffs have not the legal title, they cannot maintain their action to recover possession.
I cannot conclude my examination of this case, without an acknowledgment of the very valuable assistance which I have received from the opinion of Mr. Justice JAMES C. SMITH, delivered when this case was before the Supreme Court, at General Term, to which I now refer as an authority here.
I am of the opinion, that the order appealed from should be affirmed, and judgment absolute be entered against the plaintiff according to her stipulation, with costs.
GRAY, C., did not vote. Order affirmed with costs, and judgment absolute in favor of the defendant, with costs.