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Darling v. Rogers.

IV. The assignment was an attempt by a debtor in failing circumstances, to place his property beyond the reach of creditors, by creating a trust estate in the hands of his assignees, which would operate to delay and hinder the collection of debts. The assignment is for this reason void as against the complainants.

After advisement, the following opinions were delivered:

By Justice CowEN. I am inclined to think that the only question necessarily involved in the order appealed from, relates to the validity of the assignment from Thomas Darling. This must be taken to have been executed with perfect integrity of purpose, for fraud is denied by the answers, and there is no proof to establish its existence; nor can it be inferred from the character of the deeds by which the assignment was effected. These were executed with the requisite solemnity, and were sufficient in form to transfer all Darling's interest in his real and personal property. The trust declared was, it is admitted, valid in respect to the personal estate; and would have been equally so of the real estate, for the purpose of selling it, had it been confined to that. The 1 R. S. 722, 3, 2d ed. § 55, of the article concerning uses and trusts, allows express trusts, 1. "To sell lands for the benefit of creditors; 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon ;" and by the previous section, 45, uses and trusts, except as authorized and modified by that article are abolished. The article no where authorizes, in terms, an express trust to mortgage lands for the benefit of creditors; and though, as a general rule, a trust to sell land and distribute the proceeds shall be construed liberally, and might include a power to mortgage, yet, when the two subdivisions cited are read in connection, there is great difficulty in saying that the legislature did not here use the former words in their strict sense, which, when applied to lands, would only confer the power to give a deed of bargain and sale. In the very same section, indeed the same sentence, the words sell and mortgage are evidently used to express different

Darling v. Rogers.

meanings, though applied to the same subject, and employed for the same general object, the distribution of the proceeds. I am, therefore, inclined to think that the assignment failed in the attempt to raise a trust for mortgaging these lands. It was among the express trusts which were abolished by the 45th section; and perhaps it would not vary the result in the present stage of the cause, should we think the attempt might avail as a power in trust.

My opinion is that it cannot be allowed as an express trust. But then the more material inquiry arises, whether a failure. in this particular shall destroy the whole deed. The same instrument is employed to convey both the personal and real property. I speak in the singular, for all the deeds are but one instrument. The law allows the trust to be valid in respect to the personal property; and the learned Chancellor himself does not disturb this in the hands of the assignees. The same breath created a trust equally legal in respect to the real estate, a trust, to sell for the benefit of creditors. far the assignor had complete power, and he exercised it. He conveyed his real and personal estate, in trust to be sold, and have the proceeds distributed among his creditors. The whole is one trust created by the same words. The assignment is thus complete, answering to the intent of the parties and legally operative. It is admitted to be honest and conscientious.

So

But a clause has found its way into this instrument, by which it is declared, not only that the assignees may sell the real and personal property, and collect debts and distribute the proceeds in payment of creditors; but the scrivener has added, what is perfectly void-that the trustees may also in their discretion mortgage that part of the property which lies in the shape of land; and this is interposed as an objection, to subvert the whole transaction. I mistake. The nullity is admitted to be innoxious, with regard to one part of the trust clause to sell-that is left to operate; but over the other half it is said to come like a paralysis, rendering the assignment wholly inoperative with regard to the real estate. The addition is innocent in its own nature, and was probably inadvertent, arising from the scrivener's

Darling v. Rogers.

following old precedents. The power to mortgage is generally but a matter of form in these assignments for the benefit of creditors; for no one supposes that any thing short of a sale for the full value will answer the exigency of the case; and the legislature, unwilling to multiply idle trusts, took away the power to sanction a mortgage by way of express trust. I can think of no other motive; for, under possible circumstances, a trust to mortgage might be proper. But the whole is a mere question of authority. The debtor has given a deed with trusts which are perfectly valid to a certain extent; he has completely exhausted the power conferred by law in raising a trust to sell; and the question is whether, because in one idle particular he happens to have gone beyond his strength, and failed, every thing that is well done must fail with it. I think all must agree that there is nothing in the nature of things which calls for such a result. No authority was cited on the argument; none by the learned chancellor, in the course of his opinion, giving the least countenance to the doctrine that the provisions in a deed which are in themselves available shall be frustrated by any effort of the grantor to create a right, or impose a condition or restriction, which is void, as being beyond his legal power. I therefore feel authorized to say there is no such authority. It shall be my business to show that there are several the other way. I know of none which gives the least color to the objection which is raised against this deed operating, as far as its provisions are lawful; and, from the great number of authorities which go to support it, I feel authorized to infer that there is no book of the law which, when correctly understood, ought to leave us in doubt.

The principle on which judges are called to act in regard to all contracts and assurances is, ut res magis valeat quam pereat that is to say, the instrument in question should rather be made available than suffered to fail. But I do not propose to detain the court with analogies drawn from this rule, as applied to instruments of a charactor other than that which is under consideration. That the maxim is applicable to every sort of writing by which legal rights

Darling v. Rogers.

are created or transferred, may serve to admonish this high tribunal of the great danger, under any circumstances to be apprehended, of weakening its force or narrowing the sphere of its operation; but the case in hand, which raises the inquiry upon a deed, will, I think, be found entirely disposed of by the force of direct authority. Before going to that, however, I will call the attention of the court to the general direction which the statute has given to us. The 2 R. S. 740, § 2, 2d ed. directs, that "in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law." In framing this statute, I have no doubt, the revisers had in view the remarks of Lord Chief Justice Hobart, in the Earl of Clanrickard's case, Hob. R. 277. He says: "I do exceedingly commend the judges that are curious and almost subtil, astuti, (which is the word used in the proverbs of Solomon, in a good sense, when it is to a good end,) to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury which by rigid rules may be wrought out of the act." This remark is cited and approved by Lord Chief Justice Hale in Crossing v. Scudamore, 1 Ventr. 141, and again by Willes, Ch. J. in Roe, ex. dem. Wilkinson v. Tranmarr, Willes' RNo682, 4; 2 Wils. 75, 78. Willes, Ch. J. in the latter case cites Shep. Touch. 82, 3. At page 87 of that work, Rule 5 on the construction of deeds is thus laid down that it be such as the whole deed and every part of it may take effect, and as much effect as may be to that purpose for which it is made, so as when the deed cannot take effect according to the letter, it be construed so as it may take some effect or other." The rule is well illustrated in Bredon's case, 1 Rep. 76, where several cases are given of attempts to grant estates of greater extent than the grantors had power to convey, and yet the grants were held good to the extent of their power. Apply the rule in Shepard's Touchstone. Here is a deed which conveys

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Darling v. Rogers.

Thomas Darling's estate in trust to sell; it then adds a trust to mortgage, which is void. Sheppard says: "Let it receive as much effect as may be to that end for which it was made." Here let it have the effect to create a trust to sell for the benefit of creditors, though Darling had no power to say they might also mortgage. This rule is the same, whether the restraint be imposed by a statute or the common law. That was distinctly held in Doe, ex dem. Thompson, v. Pitcher, 2 Marsh. 61; 6 Taunt. 369. There, a deed of land was given, in respect to part of which, it was void by the statute of mortmain; and it was therefore insisted that it was void for the whole. Ch. J. Gibbs said it was admitted that if the case stood on the common law, the deed would be void as to so much only as fell within the objection. He then adds: "The truth is, there is no difference between a transaction illegal at common law, and by statute; and the objection being that this deed conveys property in a way that is prohibited, whether by the common law or by statute, the construction is the same. Taking it to go no further than as I now state, it follows that that which conveys illegally is void, and that which conveys legally is valid. A statute, when it prohibits a thing, may go farther, and say that the deed by which it is done shall be void, and then a court of law must decide it is void to all intents and purposes, because the legislature has said so." In the case at bar, the learned chancellor admits that there is no statute declaring the deed before us totally void, because a part of it may be inoperative. On the contrary, the statute expressly declares, in the spirit of the common law, that we shall carry deeds into effect according to the intent of the parties, so far as we can see the intent, and so far as it is consistent with the rules of law. This deed is consistent in all except the trust to mortgage. The chancellor so regarded it in respect to the personal estate. I think he should also have included the real estate and the trust to sell. He did not, in my opinion, go far enough; and, therefore, the decree should be reversed,

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