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clearly make the condition in this case a condition manufacturing, mining, mechanical, or chemical pursubsequent to the vesting of the property in the society. poses,” is penal in its character, and must be construed

But it is said that the power given to the Court of most favorably for those sought to be charged under it, Probate, to extend the time for the building of the and with strictness against their alleged liability. Under chapel indefinitely, ties up the property indefinitely in such a rule of construction the language of the act is limthe hands of the society, thereby rendering the dona ited by its own terms to a liability, on the part of the trustion obnoxious to our statute agaiust perpetuities, for tees, to debts of the corporation arising ex contractu. until the chapel shall be built the property is not the

N error to the Circuit Court of the United States absolute property of the society, and they have no

for the Southern District of New York. right to appropriate it to the charitable purpose des

The statute on which the action is founded is as folignated in the will. But the appellant is in error in

lows (Laws N. Y. 1875, ch. 510): regard to the power given to the Court of Probate to

“ Section 1. The twelfth section of the 'Act to auextend the time for the building of the chapel. The

thorize the formation of corporations for manufacturlanguage of the will is: “In case there shall be any

ing, mining, mechanical, or chemioal purposes,' passed good reason for extending the time beyond the three February 17, 1848, as snid section was amended by years,” etc.

chapter 657 of the Laws of 1871, is hereby further There must be a good reason shown before the Court | amended, so that section twelve shall read as folof Probate can extend the time at all, and even then

lows: the court is limited to a reasonable time for the build.

“Section 12. Every such company shall, within ing of the chapel under the circumstances then existing. The will contemplates only a short period of twenty days from

the first day of January, if a year

from the time of the filing of the certificate of incortime-such time only as is reasonably necessary for the

poration shall then have expired, and if so long a time completion of the work. The judge of Probate has

shall not have expired, then within twenty days from no discretion in the premises, other than what the

the first day of January in each year after the expirawill gives him, and if he errs on the subject, his action

tion of a year from the time of filing such certificate, is reviewable by a higher court.

make a report, which shall be published in some newsBut it is said that tho tying up of the property in the hands of the society for the period of three years

paper published in said town, city, or village; or if renders the conveyance obnoxious to the statute, and village, then in some newspaper published nearest the

there be no newspaper published in said town, city, or authorities are cited from the State of New York to

place where the business of the company is carried on, that effect.

which shall state the amount of capital, and of the But it should be remembered that the statute of proportion actually paid in, and the amount of its exNew York is very different from our own on the sub-isting debts; which report shall be signed by the presiject of perpetuities. The statuto there provides that “the absolute power fied by the oath of the president or secretary of said

dent and a majority of the trustees, and shall be veriof alienation skall not be suspended by any limitation

company, and filed in the office of the clerk of the or condition whatever longer than during the term of

county where the business of the company shall be two lives in being." And it has there been held that the

carried on; and if any of said companies shall fail so to suspension for a certain definite period, however short, do, all the trustees of the company shall be jointly violates the statute, for it may be longer than two lives and severally liable for all the debts of the company in being. By our statute the suspension may be made

then existing, and for all that shall be contracted beduring any number of lives in being when the will is

fore such report shall be made. But whenever under made creating the suspension, aud during such time

this section, a judgment shall be recovered against a afterward as will leave it impossible for the estate to

trustee severally, all the trustees of the company shall be carried by the terms of the will to parties uot in

contribute a ratable share of the amount paid by such being when the will was made, and not the immediato

trusteo on such judgment, and such trustee shall have issue of parties then in being. A will must make it

il right of action against his co-trustees, jointly or sevpossible by its terms for parents to be born after the

erally, to recover from them their proportion of the making of the same, whose issue will take the estate,

amount so paid on such judgment; provided that nothin order to render tho will obnoxious to our statute, ing in this act contained shall affect any action now which manifestly would require a much longer period pending." than three years. This is obvious. Our statute allows wills to be made conveying property to parties in being

11. J. Scudder and G. A. Black, for plaintiff in erwhen the will is made, or to their immediate issue, born or unborn. IIenco to make them obnoxious to

G. P. Lourey, for defendants in error. the statute, they must go one step further. The will must leave it possiblo for the issue of unborn issue to

MATTIIEWS, J. It is the well-settled rule of decistake the estate.

ion, established by the Court of Appeals of New York The cases cited from New York therefore are not in numerous cases, that this section of the statute, to authority in regard to our statute.

enforce which the present action was brought, is penal We think the donation to the society is not obnox

in its character, and must be construed with strictness ious to our statute of perpetuities.

as against those sought to be subjected to its liabiliWe advise tho Superior Court that the reasons of ap- ties. llerchantsBunk v. Bliss, 35 N. Y. 412; Wiles v. peal are insulficient.

Suydım, 64 id. 173; Easterly v. Barber, 65 id. 252; Knox

v. Baldwin, 80 id. 610; Veeder V. Baker, 83 id. 156; MANUFACTURIVG CORPORATION LIABILITY Pier v. (icorge, 86 id. 613; Stokes v. Stickney, 96 id. 323. OF TRUSTEE UIDER NEW YORK ACT.

In the caso last cited the action authorized by it was

held to be ex delicto, and that it did not survive as SUPREME COURT OF THE UNITED STATES, against the personal representative of a trustee sought MARCH 2, 1885.

to be charged.

In Bruce v. Platt, 80 N. Y. 379, it was said: “It is C'HASE v. CURTIS.*

settled by repeated decisions applicable to this case, The twelfth section of the New York legislativo act of 1848,

that the statute in question (Laws 1848, ch. 40, $ 12) is chapter 40, controlling “ the formation of corporations for

penal, and not to be extended by construction; that *S. C., 5 Sup. Ct. Rep. 554.

in an action to enforce a liability thereby created,


nothing cau be presumed against the defendants, but been overruled nor questioned by the New York that every fact necessary to establish their liability Court of Appeals. On the contrary, it has been remust be affirmatively proved;" citing Garrison v. peatedly and expressly cited and approved, and either Howe, 17 N. Y. 458; Miller v. White, 50 id. 137; Whit followed or distinguished from the case under decisney Arms Co. V. Barlow, 63 id. 62. The rule of con ion in the following cases : Rorke v. Thomas, 56 N. Y. struction in reference to this and similar statutory 559-565; Hastings v. Drew, 76 id. 9-15; Stephens v. Fox, provisions has been heretoforo adopted and applied by 83 id. 313-317; Knox v. Baldwin, 80 id. 610-613; Bruce this court. Steam-engine Co. v. Hubbard, 101 U. S. 188; v. Platt, id. 379-381. Flash v. Conn, 109 id. 371.

It is attempted however in argument to distinguish In the case last mentioned this court, following the the present case from that of Niiller v. IVhite, ubi Court of Appeals of New York in the case of Wiles v. supra, upon the facts, so as to except this from the Suydum, 64 N. Y. 173, showed the distinction between rule of that decision. In the case of Miller 7. White, the liability of stockholders for the debts of the cor ubi suprai, the judgment sued on was not recovered poration, under a section of the same act, making until after the alleged default on the part of the dethem sererally individually liable for the debts and fendauts, as trustees, in filing their report; whereas in contracts of the company to an amount equal to the the present case the default is alleged to have occurred amount of stock held by them respectively until the after the recovery of the judgment sued on. But in whole amount of the capital stock fixed and limited by Miller v. White, the plaintiffs did aver defaults occur. the company has been paid in, and the liability im ring after the rendition of the judgment, although posed upon the trustees by the section now under dis none were proved, except one occurring before it was cussion. It was held that the former was a liability recovered; and the court said (50 N. Y. 140): “The ex contractui, enforceable beyond the jurisdiction of right of action in this case arose, if ever, at the expirathe State, and that the statute should be construed tion of the twenty days from the first day of January, liberally in furtherance of the remedy; that the latter 1865. At that time the judgment had no existence. was for the enforcement of a penalty, and subject to It was not recovered until June, 1866.” But this lanall the rules applicable to actions upon statutes of guage plainly shows that the very point of the decision that description. The distinction is illustrated and was that no right of action could arise upon the judgeuforced in Hastings v. Drew, 76 N. Y. I, and Sle ment itself, but upon the debt alono, on which the phens v. Fox, 83 id. 313.

judgment was founded; and as to this it is, as we have The precise question involved here was decided by already seen from other parts of the opinion, expressly the Court of Appeals of New York in the case of Miller declared that the judgment was, as against the trusv. Vhite, 50 N. Y. 137. In that case the complaint set tees, evidence neither conclusive nor prima facie of forth the recovery of a judgment against the company, the existence of a debt due from the corporation, for but not the original cause of action against it, on the payment of which they could be charged. which the judgment was founded. The defendant Upon this point, it is further said in argument that mored for a dismissal on this ground which was re it is reduced to a question of evidence, and that the fused, and judgment was rendered in favor of the rules of evidence enforced in the courts of a State do plaintiff on the production in evidence of the judg not necessarily govern courts of the United States, mont roll. This was held to be erroneous on the although sitting in the same State. Howerer this ground that the judgment was not competent as eri may be in other cases, or where the laws of the United dence of any debt due from the corporation, and that States prescribe rules of evidence for their own tribuno action could be maintained thereon against the nals, it is not true that the courts of the United States, trustees under this section of the act. Judge Peck in a special statutory proceeding, would givo to a ham, delivering the unanimous opinion of the court, judgment of a State court any other or greater effect, said: “It will be perceived that this is a highly penal either as matter of evidence or as ground of action, act, extremely rigorous in its provisions. It is abso than must be lawfully given to it in the courts of lute that the trustees shall be liable for all debts of the the State, whose laws are invoked to enforco it. company, if the report be not made, no matter by It is howerer further urged upon us in argument whose default. If one of the trustees did all in his that in cases like the present, which is shown by the power to have it made, yet if the president, or a sulfi record and admitted to be founded on an action on cient mmber of his co-trustees to constitute a major the case for a tort, the judgment against the corporaity, declined to sign it, or if the president and secre tion must be evidence of the debt es necessitüle. On tary declined to verify it by oath, the faithful trustee this head the language of coursel in their printed arseems to be absolutely liable as well as those who re gument is as follows: fuse to do their duty." It was accordingly held “that “ The action was for trespass on the case for a tort as against these defendants, the judgment did not le (entering upon and taking oils from the lands of the gally exist, as they were neither parties nor privies to plaintiff), which was unliquidated except by the verit. * It is not a judgment as to these defend dict, which possibly contained an allowance in the naante; no action could be maintained thereon against ture of punitive damages. It was impossiblo of exact them. * * Nor is the judgment prima facie eri computation, containing allowances for costs prorable dence of the debt as against these defendants."

in no other way. It would be absurd, unreasonable, This doctrine was repeated and reaffirmed by the and productive of uncertainty and confusion, to resame court in Ihitney Arms Co. v. Burlon', 63 N. Y. quire the submission to another jury of the facts which 62-72. In that case the court said: “The debt must led to this verdict, for if they found a less amount it be proved by evidence competent against the defend is palpable that a part only of the debt of the company ants. The facts upon which the debt is founded must would be recorered against these defendants, who are be proved. The naked admissions of the corporation, liable for all the debts of the company. If they gare a or judgment against the corporation, are not evidence larger verdict, these defendants would be the first to against the trustees. They are res inter ulios ache; but complain. I'nder the statute they are severally as when facts are prored which would establish the ex well as jointly liable. Each one could be sued apart istence of a debt against the corporation, the liability from the others, and if one trustee is sued alone, all of the trustees for the debt follows upon the proof of the trustees shall contribute a ratable share of the the other facts upon which the liability is made by amount paid on such judgment. Il in each suit against statute to depend."

each trustee the whole evidence of the original claim The case of Hiller v. While, ubi supru, has never had to be gone into and separate verdicts rendered,


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which might be for very dissimilar amounts, the con may hold in said company at the time the debt actribution would become a matter more involved than crued ;' thereby clearly qualifying the enlarged meanthe original claim; as the theory on which the judg-ing of the word 'demand,' and showing satisfactorily ment is made conclusive is, that as the parties to it that it was used by the Legislature to denote a dehave had their day in court and have exhausted their mand arising upon contract. Damage arising upon proofs, they are thereby estopped from denying its val tort is not a debt accrued within any reasonable con idity.”

struction of that term. It is apparent as well from a But if this proves any thing it proves too much, and view of the whole section as from an analysis of its instead of showing the thing to be proved, that the parts, that the intent of the framers of it was only to judgment is conclusive evidence of a debt, it estab make the stockholders individually responsible for the lishes on the contrary, that a liability on the part of debts of the company." the corporation for a tort, though afterward reduced This reasoning and conclusion, as applied to the presto judgment against it, is not a debt of the corpora ent case, is not weakened, but rather strengthened by tion, even when in judgment, within the meaning of the language cited and relied on by counsel in support the statute imposing upon the trustees the penalty of his proposition, from the opinion of Mr. Justice sought to be enforced in this action for not making Story in Carver v. Braintree Manfg. Co., 2 Story, 448, and publishing an annual report showing, among other construing a Massachusetts statute, enactiog that things the amount of its existing debts. For keeping "every person who shall become a member of any in view the statement now urged by counsel of the im manufacturing corporation shall be liable in his inpossibility in advance of liquidation by the verdict of dividual capacity for all debts contracted during the a jury of even approximately, much less accurately, time of his continuing a member of such corporation." stating the amount of such liability, car it be sup He there admits that debts, in the strict seuse of the posed that the duty to do so is devolved upon the trus term, include only contracts of the party for the paytees, within either the letter or spirit of this statute, ment of money and notbing else; but feeling required under penalty of becoming personally liable to pay to construe the statute broadly, as a remedial statute, whatever judgment may be thereafter rendered on ac he gave to the word “debts"a meaning, not unusual, count thereof against the corporation? Surely not. as equivalent to “dues;” and to the word “conSuch claims are not within the contemplation of tho tracted,” a meaning which though more remote, he

The mischief be prevented by its requirements said, was still legitimate, as equivalent to “incurred;" has no relation to liabilities of that description. The so that the phrase, “debts contracted,” in that sense, creditors to be protected are those only who become would be equivalent to “dues owing' "or liabilities such by voluntary transactions, in reference to which incurred; "and would therefore cover unliquidated for their benefit the information becomes important as claims arising from torts. But as we have already to the debts of the company.

seen, the statute involved in this discussion is not a The precise point does not appear to have arisen remedial statute, to be broadly and liberally construed, under this act, so as to have become the subject of a but is a penal statute, with provisions of a highly rigdecision by the New York Court of Appeals. But it orous nature, to be construed most favorably for those seems to be virtually decided in Ileacock v. Sherman, sought to be charged under it, and with strictness 14 Wend. 59. That was an action on the case for the against their alleged liability. Under such a rule of recovery of damages against the stockholders of a cor construction its language is limited by its own terms, poration, occasioned by not keeping in repair a bridge, to a liability on the part of the trustee to debts of the the liability arising, as it was alleged, upon the eighth corporation existing and arising e:c contractu. section of the act incorporating the Buffalo JIydrau It is finally insisted that a judgment against the lic Association (St. N. Y. 1827, p. 45), which was as fol corporation, although founded upon a tort, becomes lows:

ipso facto a debt by contract, being a contract of “That the stockholders of the said corporation shall record, or a specialty in the nature of a contract. But be holden jointly and severally to the nominal amount we have already seen that the settled course of deof their stock for the payment of all debts contracted cision in the New York Court of Appeals rejects the by the said corporation or by their agents; and any judgment against the corporation as either evidence person or persons having any demand against the said or ground of liability against the trustees, and founds corporation may sue any stockholder or stockholders the latter upon the obligation of the corporation on in any court having cognizance thereof, aud recover which tho judgment itself rests. And it was decided the same, with costs, provided that no stockholder by this court in the case of Louisiana v. New Orleans, shall be obliged to pay more in the whole than the 109 U. S. 285, that a liability for a tort, created by amount of the stock ho may hold in the said company statute, although reduced to judgment by a recovery at the time the debt accrued.” Mr. Justice Nelson, for the damages suffered, did not thereby become a delivering the opinion of the court, said: “The term debt by contract in the sense of the Constitution of “demand’ is undoubtedly broad enough, if it stood the United States forbidding State legislation impairalone, to embrace the claim of the plaintiff. * ing its obligation, for the reason that “the term 'conWe must however look at tho whole section, and the tract'is used in the Constitution in its ordinary sense connection in which it stands, in order to fix its mean as signifying the agreement of two or more minds, for ing in this case. The stockholders in the first place considerations proceeding from one to the other, to are made jointly and severally holden for the pay do or not to do certain acts. Mutual assent to its ment of all debts contracted by the corporation or by terms is of its very essence. The same definition aptheir agents. The liability is here declared; it is new plies in the present instance, and excludes the liability and unknown to the common law, and is in terms of the defendants, as trustees of the corporation, for limited to demands ex contractu. The residue of tho its torts, although reduced to judgment. section was not intended to extend the liability thus We find no error in the judgment of the Circuit declared, but is in furtherance of the remedy. *** But Court, and it is accordingly affirmed. the proviso to the section is conclusive upon the point. Any person baving a demand against the corporation is authorized to sue any stockholder in any court, etc.,

NEW YORK COURT OF APPEALS ABSTRACT, provided that no stockholder shall bo obliged to pay ATTORNEY AND CLIENT—WHEN RELATION DOES NOT more in the whole than the amount of tho stock he EXIST—UNDUE INFLUENCE.—This action was brought

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to recover damages on account of fraud arising out of JUDGMENT - SATISFACTION OF — FOLLOWING PROvarious transactions in the exchanging or sale of farms CEEDS OF PROPERTY SOLD.-Pending an action to set between the defendant and Alfred and Andrew Stout, aside a sale made ou credit by agents to a corporation the latter being now dead. Alfred aud Andrew were of which they were the managing officers, the ageuts, colored people, and owned a farm in the town of fiec as such officers, sold the property to a third party,and tor, Schuyler county, together with personal property, subsequently plaintiff oblained judgment setting aside and it is claimed that the defendant defrauded them the sale and directing the delivery of the property to out of this farm and property. The principal acts con. it. Held, that after perfecting judgment therein, an stituting the transactions between the parties con assiguor of the plaintiff was entitled to bring an action sisted of the sale of his farm in Hector to the defend to recover the proceeds of the sale received by said ant, by his obtaining from the Stouts a deed of the agents from the corporation. The judgment entitled same; the salo to them by written contract of defend the plaintiffs' assignors as owners to the immediate posaut's farm; the surrender of this contract afterward, session of the property then in question and required and the sale back to them in 1872 of the Hector farm its delivery to them. But the defendants now here by a written contract with defendant; the surrender had, by converting the property, put it out of their of this coutract; the alleged fraudulent settlement in power to comply with the judguent, and that fact is the spring of 1873, and the sale of the Stout farin at that in substance the defense set up. It should not pretime by defendant to a third person. The complaint | vail. It would require us to hold that an ineffectual alleges that all the dealings and transactions between judgment divested a successful plaintiff of his propthe defendant and the Stouts, above referred to, were erty, and gave the wrong-doers a new advantage. This fraudulent and dishonest; that they were all part of a is not the law. On the contrary, the title is not disscheme on his part to cheat and defraud Alfred and turbed until in some way he receives satisfaction for Andrew out of their property, and were all done by it. Osterhout v. Roberts, 8 ('ow. 43; Ball v. Liney, 48 defendant for that purpose; that by this means he did N. Y. 6. Although they have disposed of the propcheat and defraud them out of all their property; that erty the defendants still hold the proceeds of the sale, Alfred and Andrew signed papers for defendant with and the judgment appealed from required them to pay out reading them, and that they signed somo paper ro it over to the person appointed by its owner to receive lating to the personal property on said farm, which pa it. Avila v. Locku'ood. Opinion by Danforth, J. per was fraudulently obtained by defendant, and may [Decided Jan. 20, 1885. ] have signed other papers to defendant, which, if so, were also procured for fraud; that the defendant WILL-DEVISE VOI) AS TRUST; VALIT AS A POWER could get them to sign any paper he wished to. The -POWER OF SALE-DISCRETION-1 R. S. 729, $ 55 complaint contained allegations of other fraudulent

C'EIVER CANNOT EXECUTE. — The will of P. by its terms acts, and claimed damages by reason of the fraud and gave all the estate to his executors, with power to redecoit practiced. The evidence taken together does ceive the rents and profits, and to sell and convey the not establish that the relationsbip of attorney and samo, in their discretion, upon trust, to divide the client existed between tho parties. The fact that tho same or its proceeds, after payment of debts, among defendant was an attorney, and that he was willing to the testator's four children. The executors were by do all the writing without compensation, is not enough judgment in this action brought by one of the benefito show the existence of such a relationship. The pa ciuries removed, and a receiver appointed, with the pers which were drawn were in proper form, and no powers of an administrator with the will amesed. legal advice was required in regard to the same. No On motion to compel the receiver to sell the real esadvice was offered or obtained, and the defendant tate, held, that the trust attempted to be created was never received a retainer or agreed to act as attorney unauthorized, and so no trust estate was vested in the for the Stouts. It nowhere appears that he assumed executors, but the title passed to the beneficiaries the obligations of a professional man in these transac named as devisees in fee; that the devise, although tions, or that the Stouts regarded him as acting in that void as a trust, was valid as a power, but that the recapacity. He was merely engaged as an individual in ceiver had no authority to execute the power. The making a bargain for the sale or exchange of real es statute authorizes a trust to sell lands for the benefit tato, and evidently drew up tho papers gratuitously of creditors, and also to sell, mortgage or lease lands without assuming to act as attorney for the Stouts. for the benefit of legatees. 1R. S. 729, $ 55. But wo The defendant as an individual had a perfect right to are of opinion that it is essential to the constitution make a bargain with the Stouts as he did, and draw of a ralid trust for either of these purposes that the up the papers without charge, and he did not thereby | power conferred upon the trustee to sell, mortgage or necessarily place himself in the position of the attor lease the trust estate must be absolute and imperative, ney or adviser of those with whom the bargain was without discretion, except as to the time and manner entered into. If ho these transactions gained ans of performing the duty imposed, and that it is nou advantage it did not arise from the relationship of at suflicient to invest him with a merely discretionary torney and client, but from the fact that he was deal- power of sale, which he may not exercise at his option ing with persons of less capacity than himself to make and which does not operate as a conversion. The sale a bargain or transact business. To may have been or other disposition mentioned in the statute must be chargeable with deceit and fraud, and therefore liable the direct and express purpose of the trust. Any if they were proved against him, but under the cir other construction would open the door to an evasion cumstances thero seems to be no valid ground for the of tho manifest intention of the Legislature to precontention that he was liable for a vialation of his rent the separation of the legal title and beneficial induty in a professional capacity. As the case stood there terest in lands through the medium of a trust, except was not sufficient cridence to establish the fact that in the specific cases and for the precise purposes enuthe relationship of attorney and client existed between merated in the statute. In the will in question not the defendant and the Stouts, and that question was only is the power of sale conferred upon the executors improperly submitted to the consideration of the jury discretionary, but it is apparent that it was incidental In view of the evidence a case involving the principle of to the testator's main purpose in constituting the undue influence does not arise, nor was it proper to trust, viz., to provide for a division of his estate by his present any such question to the consideration of the executors. Nor can the trust be sustained as a trust to jury. Stout v. Smith. Opinion by Jiller, J.

receive the rents and profits of land under the third [Decided Jan. 30, 1885.]

subdivision of section 55. Thero is no direction to



* *


apply them to the use of any person or for any period. whole foundation of a trust of this nature is the payWhen received they are distributable, not as rents ment of the money by the cestui que trust, the real, not and profits, but because incorporated into the mass of the nominal purchaser, and so its conversion into land. the estate, to be divided by the executors. See Heer The respondent cites Wood v. Robinson, 22 N. Y. 564; mans v. Burt, 78 N. Y. 259. The only remaining ques- McCartney v. Bostwick, 32 id. 53, supra; Baker v. tion relates to the authority of the receiver to execute Bliss, 39 id. 70; Ocean Nat. Bank v. Olcott, 46 id. 12. In the power of sale vested in the executors. The power each of these the entire consideration for the property of sale was power in trust, which although sought to be reached' was paid by the debtor at or bediscretionary, could on the death or removal of the fore the conveyance, and so they came directly within executors be executed under the discretion of the the statute (supra), and entitled the creditor to the court by a trustee appointed for that purpose. 1 R. S. benefit of the trust declared in his favor. On the 1731, $S 71, 102; Leggett v. Hunter, 19 N. Y. 445, and other hand, the doctrine that the trust, in order to ex. cases cited; Roome v. Philips, 27 id. 357. But we are ist, must have been coeval with the deeds, and that of opinion that by the true construction of the judg- after one person has made a purchase with his own ment appointing the receiver, he was invested with no money or credit, no subsequent transaction, whether greater power than that of administrator with the will of payment or reimbursement, can produce such a annexed. The point must now be deemed to be set trust in his favor, is well settled. Says Chancellor tled that a discretionary power of sale vested in exec Kent in Botsford v. Burr, supra: There never was utors cannot be executed by an administrator with the an instance of such a trust so created, and there never will annexed. He succeeds to the power of sale giyen ought to be, for it would destroy all the certainty and to the executor, only when the direction to sell is im- security of conveyances of real estate.

The perative. Mott v. Ackerman, 92 N. Y. 540, and cases trust results from the original transaction at the time cited. Cooke v. Plalt. Opinion by Andrews, J. it takes place, and at no other time; and it is founded [Decided Jan. 20, 1885.]

on the actual payment of money, and on no other CREDITOR'S ACTION

ground.” And in Rogers v. Murray, supra, it is said WHAT PROPERTY MAY

to be “

impossible to raise a resulting trust so as to diREACIED) BY-TITLE IN THIRD PERSON-CONSIDERATION PAID BY DEBTOR-RESULTING TRUST.-A judg

vest the legal estate of the grantee by the subsequent ment creditor's action, whether instituted under the application of the funds of a third person to the improvisions of the Revised Statutes (2 R. S. 173, $$ 38 et provement of the property, or to satisfy the unpaid seq.) or tho Code of Civil Proceedure (SS 1871 et seq.)

purchase-money." Niver v. Crane. Opinion by Dancan reach only property belonging to, or things in ac

forth, J. tion due to, the judgment debtor, or held in trust for [Decided Jan. 20, 1885.] him. Here the sole fact on which the plaintiff relies is EVIDENCE-DECLARATION OF GRANTOR AS AGAINST the alleged payment of consideration by his debt or GRANTEE- ILLEGAL EVIDENCE NOT HARMLESS-DEED for property conveyed at his instance to the other de -RESERVATION CANNOT BE PROVED BY PAROL.-(1) fendant. But as between the two that circumstance Evidence of declarations made by a former owner beis immaterial. The property is as against him her fore he acquired title to the property as to what he inowu absolute property, whether he paid for it, or tended or wanted to do when he should acquire it, and whether, as she asserts, the judgment was made from his motive in acquiring it, were, we think, inadmissiher own estate. The debtor never had the title, nor ble as against his grantee. It is only when the party was it at any time subject to the plaintiff's judgment making the declarations has at the time of making or execution. Nor would it be if the deeds under them the title to the property, that such declarations which she holds should be cancelled. The debtor had bind his successor in interest. We are not referred neither title nor any legal or equitable interest to to any authority holding that declarations made bewhich either could attach. This follows from the fore or after that time have that effect. An actual statute, which declares (1 R. S. 728, $ 51) that where a agreement between him aud the party from whom he grant for a valuable consideration shall be made to one afterward obtained title might be effectual, but no person, and the consideration therefor shall be paid such agreement was shown. A declaration to a stranby another, “no use or trust shall result in favor of ger is mere hearsay. (2) The defendant was allowed the person by whom such payment shall be made, but to prove uuder objections that Phineas Hutchins was the title shall vest in the person named as the alienee supposed to be worth $15,000, while he testified that in such conveyance." As his case is presented by the he himself was not a man of property. The evidence pleadings, the plaintiff therefore must fail. Gar as to the wealth of Phineas was clearly irrelevant and field v. Hatmaker, 15 N. Y. 475; McCartney v. Bost-improper, and cannot be said to have been harmless. wick, 32 id. 53; Everett v. Everett, 48 id. 218. The “Illegal evidenoe that would have a tendency to exstatute last cited however contains an exception, and cite the passions, arouse the prejudices, awaken the provides (8 52) that such conveyance shall be deemed sympathies, or warp or influence the judgment of the fraudulent as against the creditors at the time of the jurors in any degree, cannot be considered harmless" person paying the consideration, and declares that (Anderson v. R. Co., 54 N. Y. 334), and as remarked

where a fraudulent intent is not disproved a trust by Learned, J., in his dissenting opinion at General shall result in favor of such creditors, to the extent Term in the present case, “nothing could be better that may be necessary to satisfy their just demands," fitted to divert the minds of the jury from the true and the respondent seeks to maintain the judgmentin issue than a pathetic contrast between the widow of a the case before us as one coming within this statute. rich brother and the poor defeudant." (3) A reservaIt should, we think, be a sufficient answer that it was tion by parol of a life estate of the grantor, in case of not put upon that ground by the complaint, nor at the a deed in fee, cannot be sustained on any principle. trial. But waiving that, we are not able to see how The proposition was not that the deed was to secure a the claim can be supported. The doctrine to be ap debt which the defendant should have all his life to plied is well settled. To make out such a trust the pay, but that independently of the question of mortmoney must be paid at or before the execution of the

gage the promise of a life estate was valid. This is atconveyance, and not after. Jackson v. Moore, 6 Cow. tempted to be sustained by coupling it with the suppo706; Botsford v.Burr, 2 Johns. Ch. 405; Steero v. Steere, sition that in consideration of and relying upon such 5 id. 1; Jackson v. Morse, 16 Johns. 197; Rogers v. Mur- promise, the defendant kept possession and made valray, 3 Paige, 390, 391; Russell v. Allen, 10 id. 219. The

uable iniprovements upon the laud, and the case of

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