Majority
p. 184Jackson, ex dem. Pintard, against Bodle.
Headnote
it is essen$idity° th)f Va«I deed, ttat the ing te accept such^acceptBremm'edfrom She beneficial transaction, 5sle”otheibsoí 2ute; yet this presumption is very slight, grantee dénvcs no benedeed, but is subjected to a ¡é<trastmanCe ofWhere ^ P., debtor, in signed all his property, under the insolthat state, to tiiist”dfM ’ all his creditors, no'eviédencééof having^ taken the oath required of them by the act, and the trustees had done no act whatever, in execution of the trust0 áor above twenty years, and one of them had declared, in the presence of the other, who did not dissent, that he never qualified, nor acted, and never intended to act as trustee % Held* that this was sufficient evidence that they never had assented to become trustees, or accepted '¿he deed of assignment; and that, therefore, nothing passed by the deed from P» to C.endJD-
EJECTMENT to recover lot No. II, in the sixth division of the Minisinlc patent, tried at the Orange Circuit, in September, 1820, before Mr. Justice Woodworth.
The plaintiff produced evidence, by which he deduced a title to John Pintará, one of the lessors. The defendant then read ™ evidence an exemplification of the proceedings under the late bankrupt law of the United States, against John Pin tard, (the lessor,) as a bankrupt; by which it appeared, that ^e commission was issued in July, 1800, and that the bankrupt executed an assignment, pursuant to the statute, dated * ° r ... May 29, 1807, “ of all the estate, right, title, mterest, use, trust, property and possession, benefit and equity of redempt;on cjajm an<j demand whatsoever, which the said J. P. had, at the time of his becoming a bankrupt, in trust for all ^-g cre¿jtors.” The defendant, also, gave in evidence a release, dated May 30, 1807, from the assignees of P., the bankrupt, to James A. Stewart and John A. Wells, of all the lands of P., the bankrupt, in the counties of Ulster and Orange, in the state of New-Yorh, for the consideration of 750 dollars. The plaintiff’s counsel objected to the evi- * dence oí this release, on account of the generality and vagueness of the description of the lands released; but the dudSe reserved all questions of law. The defendant’s counsel insisted, that he had shown a title out of the lessors °f the plaintiff. The counsel for the plaintiff then read in ev*dence an exemplification of the examination of Pintará,
p. 185
before the commissioners of bankrupt, in August, 1800; in which he declared, among other things, that he had been discharged under the insolvent law of the state of New-Jersey, on the 22d of May, 1798, and had assigned and delivered up all his estate, real and personal, to Elias Dayton, John N. Cummings, and Jesse Baldwin, his assignees, and that, at the time of his examination, he had no estate or effects whatever ; and that the schedules, attached to his examination, contained true accounts of all his debts and effects, as exhibited when he so obtained his discharge under the insolvent act of New-Jersey; by which schedules, it appeared, that Pintard claimed and assigned about four thousand acres of land in the patent of Minisinh. The plaintiff’s counsel then produced in evidence, an exemplification of the proceedings of the Court of Common Pleas of Essex county, in the state of New-Jersey, in the case of John Pintard, an insolvent debtor, and an assignment of all his estate, real and personal, by him, to the said Dayton, Cummings and Baldwin, made pursuant to the law of that state, dated May 22d, 1798, in trust, to and for the use and benefit of all the creditors of the said Pintard.
The defendant then gave in evidence an exemplification of certificate of the clerk of the county of Essex, in New-Jersey, authenticated in the manner required by the act of Congress, that he had searched, and found no oath or affidavit of the said Dayton, Cummings and Baldwin, the assignees of Pintard, on the files or records of the said Court. It was proved, that a short time before the trial of the cause, Cummings, one of the assignees of P. under the insolvent act of New-Jersey, declared, that the trustees had never qualified, and that he had nothing to do with the trust or property ; that Baldwin, another of the assignees, was present at the time the declaration was made by €h and said nothing of the oath, but refused to execute any release to J. A. Stewart; and it appeared that Dayton was dead. It was also proved, that in July, 1816, Cummings, on being applied to for a release for some of the lots in the Minisinh patent, said that he never had qualified as a trustee, and never intended to act under the assignment of Pintard.
p. 186contended, that the plaintiff had proved a title under Pintará, and his assignees, under the insolvent law of New-Jersey. The defendant had attempted to show a title out of the lessors, in purchasers under a deed from the assignees of P. as a bankrupt, in 1807, seven years after the bankrupt obtained a certificate of discharge, and which did not describe any property specifically. Such a general assignment by the commissioners of a bankrupt will not pass a particular estate in land. The property must be particularly described. The 11th, 12th, and 17th sections of the act show that the commissioners must specify the real estate which they intend to convey or assign : so that, even if the commissioners had power, in 1807, to make a conveyance, he contended, that it has not been well executed. But the bankrupt law of the U. S. was limited to five years, and expired in 1805, and after that term these commissioners had no power to convey. Again; the commissioners of bankrupt were apprized of the assignment by Pintará, the bankrupt, previously made to the trustees, under the insolvent law of New-Jersey. The law will presume a delivery of ,the deed to the trustees, and an acceptance by them of the trust, until the contrary appears. Those assignees are the real lessors in this suit. insisted, that by the bankrupt act of the Ü. S. all the property of the bankrupt was vested in the commissioners. In cases of bankruptcy or insolvency, the assignments are always general; and such a general description of land in a deed is sufficient. (Jackson, ex dem. Livingston, v. De Lancey, 11 Johns. Rep. 365 .) The bankrupt law contained a saving of all proceedings under commissions actually issued at the time the act expired; and the commission in-the case of Pintará had issued before that time. Again; the assignees of P. under the insolvent law of
A verdict was taken for the plaintiff, subject to the oph ™°n ^le Court, on a case, containing the facts as above stated; and all questions of law and evidence at the trial were reserved.
Betts, for the plaintiff,
Billings and D. B. Ogáen, contra,
p. 187Mew-Jersey, never took the oaths required of them by that law; and until they had qualified, they could not act as trustees : and it is proved that though above twenty years have elapsed, nothing has, in fact, been done by those trustees. Besides, the trustees, by virtue of the insolvent law of Mew-Jersey, can claim nothing in this state, under the assignment to them, for the benefit of the insolvent’s creditors there. A record of proceedings under an act of the legislature of Mew-Jersey, cannot pass land in this state. But admitting that the. assignment was regular and duly executed, there is no evidence of its delivery or of its acceptance by the grantees. A deed, in order to pass land, must be executed and delivered according to the forms required by the laws of the state in which the land is situated.
delivered the opinion of the Court.
The plaintiff’s right to recover depends entirely on the effect of the discharge to John Pintará, and the assignment made to Cummings and Baldwin, under the insolvent proceedings in Mew-Jersey ; for it does not admit of a doubt, that the assignment, under the bankrupt act, by the commissioners of bankruptcy, to Moore and Farquhar, the assignees of Pintará, passed all the estate and interest of Pintará in the premises. The act repealing the bankrupt act, contained savings and provisos in favour of such cases as were then pending ; and this case was then pending.
The question is, whether, under the facts proved in this case, the Mew-Jersey assignees can, now, for the first time, after the lapse of more than twenty years, assent to the trust, and take under a deed, when, during all that period, they have never acted, nor accepted the trust conferred on them by the assignment of the 22d of May, 1798 ? I am of opinion that they cannot. It is necessary to the validity of a deed, that there he a grantee willing to accept it. It is a contract, a parting with property by the grantor, and an acceptance thereof by the grantee. An acceptance will be presumed, from the beneficial nature of the transaction, where the grant is not absolute. The presumption is not so strong, that the grantee accepts the deed, where he derives no benefit under it, but is subjected to a duty, or the per
p. 188
formance of a mere trust. The non-existence of any oath# on the part of the assignees, to execute the trust, and the lapse of so many years, without having executed it, coupled with the declarations of one of the two surviving trustees, in the presence of the other, without any dissent on his part, that they had nothing to do with the trust, that they had never qualified, had no concern with the property, and never intended to act, make out the fact, that they never agreed to accept the trust, and, consequently, never assented to the deed. In Jackson, ex dem. M‘Crea, v. Dunlap, ( 1 Johns. Cas. 114 .) and in Jackson v. Phipps, ( 12 Johns. Rep. 422 .) the principle is distinctly advanced, that it is essential to the legal operation of a deed, that the grantee assent to receive it, and that there could be no delivery without an acceptance.
Without examining the other points in the case, this is decisive against the plaintitf’s right of recovery.
Judgment for the defendant..
Cases cited
- Jackson ex dem. M'Crea v. Dunlap 1 Johns. Cas. 114 p. 188