Opinion
05-22-1886
PIDCOCK v. MELICK.
A. C. Hulsizer, for petitioner. J. J. Bergen, for respondent.
On petition for writ of assistance.
A. C. Hulsizer, for petitioner.
J. J. Bergen, for respondent.
BIRD, V. C. The petitioner purchased the lands sold upon foreclosure in this case, and now asks the aid of the court to obtain possession. The respondent resists, and says he is not within the rule adopted in this state. The respondent at one time had an interest in the fee. He conveyed that interest to S., in trust for the two children of the respondent and their heirs, as tenants in common, for them, their heirs and assigns, forever. The children, the cestuis que trust, were made parties tothe foreclosure proceedings. The trustee had died before filing the bill. The respondent (being the grantor) was not made a party. When the bill was filed, the respondent was not in possession; but before the sale he took possession of the premises. This statement shows that the respondent is justified in his resistance. His conveyance was only of a life-estate in trust; no words of inheritance being in the operative part of the deed. Adams v. Ross, 30 N. J. Law, 505; Sisson v. Donnelly, 36 N. J. Law, 432; Kearney v. Macomb, 16 N. J. Eq. 189; Wetter v. Rolason, 17 N. J. Eq. 13-17.
These cases show that the fee does not pass, and that the trustee only takes a life-estate, if the word "heirs" is not employed in the granting clause of the conveyance. Upon the death of the trustee, the interest of the grantor devolved upon him again, and the rights of the cestuis que trust terminated. The demands of the law were not satisfied in making them parties. To have effectually cut off the grantor he should have been made a party defendant also. In such case I believe the court never aids the purchaser, even against him who comes in after bill filed. In Blauvelt v. Smith, 22 N. J. Eq. 31, it is said a writ of assistance can only issue against persons who are parties to the suit, or who come into possession under a defendant after its commencement.
It seems to be my duty to refuse the writ, with costs.