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Brennan v. Willson

4 Abb. N. Cas. 279 Court N. Y. Court of Appeals; English

Delivered by Allen, J.

Contents

Majority

p. 279
BRENNAN v. WILLSON.
N. Y. Court of Appeals;
December, 1877.

Headnote

Assignee.—Bond.—Genebal Assignment fob Benefit of Obeditobs.—Title to Real Estate undeb.
An assignment for benefit of creditors, duly made, acknowledged and recorded, and accepted by the assignee, passes title to the assets and gives the creditors a right to enforce the trust, notwithstanding the assignee fails to give a bond.[2]
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Juliand y. Batlibone, 39 N. T. 375,—limited. Thrasher y. Bentley, 1 Abb. New Oas. 39, and Syracuse, &c. B. B. Co. y. Collins, Id. 47,— approved.
If there are several assignees, and all accept in writing, they cannot, nor can any one, voluntarily, disclaim.[2]
An order of court is necessary to a discharge.[3]
The assignees take as joint tenants, and all must unite in conveying.[4]
If an assignment is made to and accepted by several, and one fails to give bond, and refuses to act, without being discharged, neither those who have given bond on their own behalf, nor they together with the non-acting assignee, nor the assignors, nor all together, can convey good title to real assets.
The title having been vested in all the assignees by the acceptance of the assignment, the bond on behalf of all is essential to enable any of them to convert the assets by to the purpose of the trust.
Appeal from an order of the general term of the court of common pleas in the city of New York reversing a judgment and ordering a new trial.
This action was brought by William Brennan and Isaac A. Lawrence against Charles H. Willson and
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Allen Gr. Newman, to recover $2,264.12, being the ten per cent, paid down at the time of the purchase of certain real estate in the city of New York, together with interest, auctioneer’s fees, and amount paid out in the examination of the title.
On July 2, 1875, Thomas Duke and John More made a general assignment of all their property for the benefit of creditors, under the act of 1860, and the acts amending the same, to the defendants and one James D. Trimble, who, at the same time, signed a written acceptance as such assignees of the said trust. On the thirteenth of the same month the said Trimble sent to his co-assignees the following: “GrEisrTXiEMEH':—
Please accept my resignation as assignee, as I find myself unable to perform the duties of the position,” and refused to act as one of said assignees.
On July 22, said Duke and More, as such assignors, filed an inventory as required by law ; and on July 31, Charles H. Willson and Allen Gr. Newman executed a bond with sureties, which was approved by one of the judges of the court of common pleas and duly filed.
On August 6, 1875, the said Duke and More executed a second general assignment for the benefit of their creditors, in precisely the same terms as the assignment of July 2, 1875, except that said last-mentioned assignment was to the defendants in this action only, who duly accepted the same by a written acceptance thereof. - On August 27, the said Duke and More filed the schedules, and the said defendants executed, with two sureties, a bond, duly approved by one of the judges of the court of common pleas, which was duly filed as required by law.
Both of said assignments were duly acknowledged by the assignors and recorded by the assignees in the clerk’s office of city and county of New York at the time of their respective dates.
At the time of the execution of said assignments,
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the said Duke and More were the owners in fee of the real estate which was sold by the assignees at public auction, and upon which sale the plaintiffs became the purchasers at the price of $21,000, and paid to the defendants at the time of such sale the sum of $2,100, according to the terms of the sale, and being ten per cent, upon the purchase price of said premises, and also auctioneer’s fees $25, and subsequently the plaintiffs paid out the sum of $139.12, in the examination of the title of said premises, amounting in all to the sum of $2,264.12.
At the time agreed upon between the parties for taking the title of said premises by the plaintiffs, and the paying of the balance of the purchase money, the defendants herein duly tendered to the plaintiffs, deeds, in due form, executed by the defendants and by the said James D. Trimble, and by the said Duke and More, and by their respective wives, and the execution of which was properly acknowledged by all of said grantors; but the plaintiffs declined to accept such deeds on the grounds that the assignees could not give good title, for the reason that James D. Trimble had not signed the bond of the assignees; and that the second assignment gave no right to convey, because the assignors had no power to make such second assignment.
The action was' tried at a special term, held by Hon. Joseph F. Daly, and judgment was rendered in favor of the defendants, the court holding that under the deeds tendered by the defendants to the plaintiffs, executed by the defendants, said James D. Trimble, and the assignors and their wives, the respondents would have received a perfect title.
The plaintiffs appealed to the general term of the court of common pleas, which reversed the judgment of the special term, on the grounds that under the' assignment of July 2, 1875, to the defendants and
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James D. Trimble, and their acceptance, the defendants and said Trimble became vested with the title to the premises ; and that the assignors became divested of any assignable interest in the premises ; that therefore their subsequent assignment to the defendants was nugatory. That the steps taken by James D. Trimble to divest himself of title in no manner divested him of the title to the property vested in him under the assignment of July 2, 1875, to himself and defendants, and his acceptance. That while the title was vested in the defendants and said James D. Trimble, they could not, however, convey and make good title out of themselves without giving the bond prescribed by statute. That Trimble having acccepted, he could be discharged only by an order of the court; and that, therefore, the deeds tendered were not sufficient to vest a good title in the plaintiffs.
From the order granting a new trial the defendants appealed to this court. •
De Witt C. Brown (Sheldon & Brown, attorneys), for appellants.
I. The assignment tó the three assignees of July 2,1875, became perfected under the act of 1860, and their conveyance was sufficient (with the release of dower tendered at the same time) to vest a good title in the purchasers at the assignees’ sale. The act of 1860 does not require all the assignees to execute the bond, and it is sufficient if executed by a majority of them.
II. The two assignees did all that it was possible to do, and the approval of the bond, being a judicial act, cannot be assailed collaterally. Not being creditors, the plaintiffs are estopped by its judicial approval required by the estate. The case is precisely analogous to that of an administrator (Bloom v. Burdick, 1 Hill, 130 ; Cottrell v. Brock, 1 Bradf. 148 ; Matter of Ferris, 1 Tucker, 15; Shook v. Shook, 19 Barb. 653 ).
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III. Although Trimble had accepted the trust, yet before qualifying as assignee by the giving of the bond he had the right to renounce, and by so doing the assignment became at once as though made only to Willson and Newman, who alone had the right of disposition. The assignees take as joint tenants of real estate, and after the death or renunciation of one, the remaining ones take and dispose of the whole (Hill on Trustees, 225, 305, and cases cited ; Small v. Marwood, 9 B. & C. 300; Nicloson v. Wordsworth, 2 Swanst. 365 ; Moir v. Brown, 14 Barb. 45 , and cases cited).
IV. If these consequences do not follow the giving of the bond by the two assignees and its approval by the court, it must be because the assignment being to, and the acceptance of it by three, till the giving of a bond signed by the three assignees, the assignment is incomplete and of no effect, and if the renunciation of one of the assignees is not sufficient to authorize the remaining ones to give the security required by the statute, and thus keep the trust alive, it would seem to necessarily follow that the assignment had entirely failed of effect. In that case, then, the assignment of August 6 conveyed to Willson and Newman a good title, and wholly unaffected by the assignment of July 2, and the case falls directly within the principle laid down by the court of appeals, in Juliand v. Rathbone, 39 N. Y. 375 .
Erastus E. Brown (Joseph O. Brown, attorney), for respondents.
I. The failure of the assignee, "James D. Trimble to give the bond, disabled the assignees from selling. The title to the trust property, notwithstanding, remained vested in the appellants, and said Trimble (all having accepted), as trustees of an express trust, subject to the power of the court, upon due application made, to remove said Trimble, and to appoint a trustee in his place to execute the trust (Hardmann v.
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Bowen, 39 N. Y. 196 ; Thrasher v. Bentley, 1 Abb. New Cas. 39 ; Syracuse R. R. Co. v. Collins, Id. 47; Wood v. Chapin, 13 N. Y. 521 . And see Juliand v. Rathbone, 39 Barb. 97 ; Van Vleet v. Slauson, 45 Id. 317; Evans v. Chapin, 20 How. Pr. 289 ; Barbour v. Everson, 19 Abb. Pr. 366 ; Reed v. Worthingham, 9 Barb. 617 ; General Assignment Act of 1877, § 8).
II. Under the assignment of July 2, 1875, the defendants and said Trimble were vested with the title to the premises in question; and they were not divested thereof through the failure of Trimble to give or join in the bond, nor could they sell, convey or divest themselves of the title until the bond was given by Trimble, or until he was duly removed. It cannot be said that the appellants had given a bond, and therefore could act, without Trimble, for the powers of trustees, other than executors, is equal and undivided. They cannot act separately—all must join in receipts and conveyances. A deed by two, while a third is living, is not valid. They can make no disposition of the trust estate, otherwise than by a joint deed (Willis on Trusts, 136; Ridgeley v. Johnson, 11 Barb. 527 ; Thatcher v. Candee, 4 Abb. Ct. App. Dec. 387 , 391; Hall on Trusts (3 Am. Ed.), 305, 306; Brinckerhoff v. Wemple, 1 Wend. 470 , 474; Wills v. Gresham, 2 Dewey, 285; 5 De Gex, M. & G. 770; Fisher v. Cuthell, 5 East, 491; Tiff. & Bull, on Trusts, 539; Sinclair v. Jackson, 8 Cow. 543 ; Perry on Trusts, 2 Ed. § 411; 2 Story's Eq. Jur. 12 Ed. § 1280 ; 1 R. S. 735, § 112. As to executors a different rule is applicable (2 R. S. 109, § 55; Ogden v. Smith, 2 Paige, 198 ; Matter of Van Wyck, 1 Barb. Ch. 569 ; Ridgeley v. Johnson, 11 Barb. 527 ).
III. Trimble, having accepted the trusts created by the assignment, and having agreed faithfully to perform the same, could not by a mere request to his co-assignees to accept his resignation, divest himself of
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his character as assignee or trustee. His duties and obligations were fixed by his acceptance, and having so accepted, the court alone had the power to release him (Lewin on Trusts, 6 Ed. 174, 178 ; Tiff. & Bull, on Trusts, p. 527, and numerous cases cited in note 3 ; 2 Spencer Eq. Jur. 918 ; Diefendorf v. Spraker, 10 N. Y. 246 ; Briggs v. Davis, 20 Id. 15, and 21 Id. 574; Cruger v. Halliday, 11 Paige, 319).
IV. The neglect or refusal of Trimble to give or join in the bond would have been sufficient ground upon application to the court for his removal, and for the appointment of a trastee by the court in his place (Hardman v. Bowen, 39 N. Y. 200 ; Anonymous v. Gelpcke, 5 Hun, 245 ; 2 R. S. 6 Ed. p. 1,111, §§ 83, and 84, and cases collected under second and third points).
V. Under the assignment of July 2, 1875, the assignors Duke and More, were divested of all title to the property ; the assignment, therefore, of August 6, 1875, was nugatory and of no force and effect (Burrill on Assignm. 2 Ed. 69; Marvin v. Smith, 46 N. Y. 571 ; Bell v. Holford, 1 Duer, 58 ; Metcalf v. Van Brunt, 37 Barb. 621 ; Briggs v. Davis, 20 N. Y. 15 , and 21 Id. 574).
VI. It is not questioned that the plaintiffs are entitled to recover if they were justified in rejecting the title (Morris v. Mowatt, 2 Paige, 586; Leggett v. Mutual Life Ins. Co. of N. Y., 53 N. Y. 399 ).

By the assignment of July 2, 1875, and the acceptance of the trust by the defendant and Trimble, the assignees named therein, the property, real and personal, of the assignor, vested in the assignees in trust for the creditors. The title did not remain in the assignors, nor was it in abeyance awaiting the giving of security by the assignees as required by statute, or the performance of any condition sub

p. 287
sequent to the assignment. The creditors of the assignors acquired an interest in the assigned estate, and could enforce the execution of the trust. The statute, chapter 348 of the Latos of 1860, regulating voluntary assignments for the benefit of creditors, does not make the giving of the statutory security by the assignees a condition precedent to the vesting of the estate in the trustees, nor does the failure to give the security within the time limited invalidate the transfer and restore the title of the assigned property to the assignors. This has been so held by this court, and by the commission of appeals (Thrasher v. Bentley, 1 Abb. N. C. 39 ; 59 N. Y. 649 ; Syracuse, &c. R. R. Co. v. Collins, 1 Abb. N. C. 47 ; 57 N. Y. 641 ). The question was considered by Judge Grover in Juliand v. Rathbone ( 39 N. Y. 375 ), but it was not necessary to decide it, as the judgment was necessarily as given, whether the court held the one way or the other on the point now under consideration. The remarks of the learned judge upon that branch of the case did not necessarily embody the views of the court, and may be regarded as obiter, and the judgment as passing upon the other ground suggested by him.

The three assignees having accepted the trust, the effect of the acceptance was conclusive, and they could not, collectively or severally, afterwards, by renunciation or disclaimer, throw off or repudiate the duties and responsibilities of the office, or divest themselves of the title once vested in them (Hill on Trustees, 221, and cases cited in note; Shepherd v. McEvers, 4 Johns. Ch. 136 ; Cruger v. Halliday, 11 Paige, 314). Trimble, with the defendants, formally and in writing accepted the trust, agreeing faithfully to perform the same, and thus made himself a party to the deed. This was a deliberate and unequivocal act, perfecting the transaction and making the transfer irrevocable Hill on Trustees, 219, and note 1). Had Trimble dis

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claimed the trust by refusing to sign the written acceptance with the defendants, repudiating it when tendered, and doing no act in execution of the trust or inconsistent with the disclaimer, no title to the estate would have vested in him, and the deed would hot have taken effect. But having accepted, he could only be relieved of the trust and divested of the estate by the order of a court of competent jurisdiction, and this might have been done upon his resignation or his removal from office for a non-compliance with the statute (Briggs v. Davis, 20 N. Y. 15 ; S. C., 21 Id. 574).

A trustee having once accepted the trust in any manner, a purchaser cannot safely dispense with his concurrence in a sale of the trust estate, notwithstanding he may have attempted to disclaim, and although he may have released his estate to his co-trustees (Crewe v. Dicken, 4 Ves. 97). All the trustees must unite in a disposal of the trust property, and a deed by two, while a third is living, is not valid. The trustees take as joint tenants, and must all unite in the execution of the trust, and especially in a deed of lands (Story Eq. Jur. 1280; Brinckerhoff v. Wemple, 1 Wend. 470 ; Thatcher v. Candee, 4 Abb. Ct. App. Dec. 387 ).

By the first assignment, Duke and More, the assignors, were divested of all title, and nothing passed under the second assignment to the defendants alone, or by their deed to the plaintiffs (Marvin v. Smith, 46 N. Y. 571 ).

The assignee, Trimble, did not at any time “enter into a bond,” with or without sureties, for the faithful discharge of his duties as assignee. The bond given was by the defendants, with sureties for the performance by them of their duties. It was in no sense a bond of, or for Trimble, and the sureties would not have been liable for his misfeasance or non-feasance in the execution of the trust. His name as principal,

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as well as one of the assignees, for whose good conduct the sureties became sponsors, was erased from the bond, and upon oyer of the bond this would have appeared.

The finding of the learned judge upon the trial that the defendants, on July 81,1875, executed on behalf of the three assignees a bond under the act, with sureties, is against the evidence and inconsistent with the previous finding that Trimble had, on July 13, renounced the trust and refused to act as one of the assignees.

Trimble was not a party to the sale to the plaintiff, but did unite in the deed tendered them. This act was a nullity, as it was forbidden by law before giving the bond with sureties as required ; and without giving such bond he had no power or authority to sell, dispose of, or convert to the purposes of the trust any of the assigned property. This is expressly declared by section 3 of the statute before quoted, and the prohibition is absolute and cannot be disregarded by him or by courts ; and the cestui que trust under the assignment, or trustees who may succeed him, may inquire into the validity of his acts under the trust deed. His trust was a dry trust, merely to take possession and hold the property until he should become qualified and have authority under the statute to dispose of it and convert it to the purposes of the trust. As he could not lawfully unite in the deed, it was in effect but the deed of the defendants, two of the three trustees, and did not make a title to the premises which the plaintiffs were bound to or could safely accept.

The order granting a new trial must be affirmed, and judgment absolute granted for the plaintiffs.

All concur.

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