Darling v. Rogers. By Senator VERPLANCK. The chancellor has here adjudged that no estate in the real property of Thomas Darling vested in his assignees, by virtue of the deed of assignment, and the subsequent conveyances made to them. The assignment was in trust, "to sell or mortgage this real estate as the assignees should deem most advisable and productive," for the benefit of creditors. The chancellor considers the express trust to mortgage the assigned property as a trust prohibited by the revised statutes, and that therefore no estate vests in the trustees by this assignment. Upon the fullest examination I have been able to give to the subject, I have come to a different conclusion, and hold that the assignment is good and should be sustained. There are two separate and distinct grounds upon which I rest this opinion-either of which I deem sufficient to sustain the assignment, and I consider both of them as solid. . I. The trust to sell, for the benefit of creditors, is provided for by the first provision of section 55, of the article. "Of Uses and Trusts." 1 R. S. 728. "Express trusts may be created for either of the following purposes: 1. To sell lands for the benefit of creditors." The trust to mortgage, I regard as equally good under the second head of this section. 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon." The word charge, in its legal acceptation, has a very broad meaning. It includes payments charged upon land by devise, as legacies; those by deed, as rents, annuities and mortgages; those by operation of law for public purposes, as taxes and assessments; those by effect of law, in private suit, as judgments. In the dictionaries and digests of the common law, by no means the best expounders of the reason of the law, but of necessity the best interpreters of its vocabulary, the word charge is used in this latitude. I cite Jacob's Law Dict. word "Charge," and refer to the authorities there enumerated. "Lands may be charged divers ways, as by grant of rent out of it, by statutes, by judgments, conditions," &c. See also Tomlin's L. Dict. to the same effect. I cite these legal lexicographers, in preference to what on other points would be higher au Darling v. Rogers. thority, bcause they shew the general and familiar legal use of the word charge, before and at the time of the enactment of our statute. Our revised statutes apply it in the same way, especially as to judgments, thus affording the best interpretation of the legislative meaning of the word in the article now under consideration. "All judgments hereafter rendered in any court of record, shall bind and be a charge upon the lands, tenements, real estate and chattels real, of every person, against whom any such judgment shall be rendered." R. S. 359. 2 It appears from the case, it being alleged by the assignees and not contradicted, that besides the judgment of the respondents, there were other and prior judgments to a large amount against Darling, all being by law charges upon his real estate. A schedule annexed to the assignment, and referred to in it, also mentions a mortgage of ten thousand dollars charged upon a part of the lands. Now, the satisfying of such judg ments seems to be a valid purpose for a trust. So, too, might be the paying of a mortgage, covering a large saleable property, by means of a new one, or a part of the same real estate, or on better terms of time or interest. The chancellor has said, "that in the case of trusts to sell or mortgage lands for the benefit of legatees, or to satisfy charges thereon, the legislature has been careful not to vest the legal estate in the trustee"-citing 1 R. S. 729, $56. I do not so read the statute. There are various sorts of trusts that may be legally created under the second subdivision of § 55, above quoted. Part of these are trusts arising under devises, "where the trust is created to sell or mortgage lands for the benefit of legatees;" to those, the 56th section referred to by the chancellor. directly applies, by enacting that a devise of lands to be sold or mortgaged, (except in certain cases,) shall vest no estate in the trustees, but shall be good only as a power. But the statute is much broader than this, in the clause enumerating the purposes for which a valid trust may be created. It allows them to be created, as we have seen, "to sell or mortgage for the purpose of satisfying any charge on the lands" conveyed. The limitation of the 56th section is confined to Darling v. Rogers. devises, and is an exception to the more general rule prescribed by the statute in $ 60. "Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust." The trust created to sell for the benefit of creditors generally, being valid undoubtedly, and the express words of the first subdivision of $55, the trust to mortgage seems equally valid for the benefit of judgment creditors, and the satisfying their charges upon the land, as well as that of the mortgage mentioned in the schedule annexed to the assign ment. The only doubt then, as to the validity of the assignment, must arise from the general language of the alternative direction to sell or mortgage, as the assignees might deem most advisable. There could be no room for doubt, if the trust had been to sell for the benefit of all creditors-or to mortgage, if deemed more advisable for satisfying the charges of judgment creditors. But, on the whole, we must look to the intention and legal effect of the instrument. We ought not to presume any illegal intent, where there is an obvious meaning in perfect conformity with the law. The discretion to sell or mortgage should be taken with reference to the limitations imposed by the statute, restricting the mortgage to objects and purposes allowed and permitted; some of which the pleadings and proofs show to have actually existed. There is direct and positive evidence that some such. purposes were in the view or intention of the party. That is no evidence that there were other purposes, not valid by law, to which the proceeds of a mortgage could be applied. Such an illegal intent, then, is not to be presumed, or to be inferred from the use of too general and inartificial language. I am accordingly satisfied to rest the decision of the cause upon this ground alone. II. But I am equally clear as to the validity of the assignment upon another ground, wholly independent of the first. Supposing the trust to mortgage to be prohibited by the statute, so that no estate vested under it, would the effect be to make the instrument void as to the real estate, and de Darling v. Rogers. feat a trust to sell, confessedly valid if it stood alone? What is the operation of the statute upon such an assignment, either upon separate and distinct trusts, or where an alternative discretion is given as to each trust? Let us presume, then, that the trust to mortgage lands was bad, as not falling within the purposes specifically enumerated, and that no estate vested by it in the trustees. Now the statute, 58, declares, that where express trusts shall be created for any purpose not enumerated, no estate shall vest in the trustee. This provision the chancellor appears to consider as absolutely prohibitory, so that whenever a void trust is attempted to be created, no legal estate can be vested, at the same time, for other and valid trusts. I think not so; for that would be to make the statute contradict itself. The language of the statute here is merely negative, in its fair interpretation "No estate shall vest in such trustee;" that is to say, no estate shall vest on such an unauthorized trust. But the succeeding section, $ 60, is positive in its language: "Every express trust, valid as such in its creation, shall vest the whole estate in the trustees in law and in equity, subject only to its execution." By the invalid trust, no estate is vested. The valid trust "vests the whole estate in the trustees." This interpretation strikes me as sound and natural. It is consistent with the rest of the statute, reconciling the whole, and it meets the daily exigencies of business and the necessity of giving a beneficial effect to instruments often hastily drawn, and frequently without the strictest technical precision in relation to the operation of a branch of law doubtful, and which under any form of jurisprudence must be difficult and intricate. There can never be any difficulty in applying this construction of the statute, where the two trusts are wholly separate though in the same instrument: as where part of the land is conveyed to one purpose, that being a valid one, and part to another and an invalid one, or where the whole is assigned first for a valid trust, and that failing, to some void purpose. But when the purposes are in the alternative, or when they are mixed and complicated together, the separation of the good and the bad may not be obvious, and Darling v. Rogers. sometimes not possible. When the void part is so complicated with a trust otherwise valid, as to form an essential part of the intent and object of the person creating it, it may vitiate the whole, because the trust may be in fact single, though composed of several parts, one of which is void. Thus in a trust to "receive and pay over rents," the object is mainly the paying over to the beneficiary, and if that is prohibited by law, the whole subsidiary trust fails. But as to other separate or alternative dispositions, the doctrine established as to devises affords a safe and accurate rule. This is in substance that when a will is good in part and bad in part, the part otherwise valid is void, if it works such a distribution of the estate, as from the whole testament taken together was evidently never the design of the testator. Otherwise, when the good part is so far independent that it would have stood, had the testator been aware of the invalidity of the rest. This doctrine was applied in the great case of Coster v. Lorillard, in this court, as to certain religious or charitable devises or legacies, 14 Wendell, 265. So Chancellor Walworth, in the well known case of Hawley & King v. James, states the general rule to be, that the invalidity of any particular trust, interest, accumulation or limitation, created by will, does not destroy the trusts and limitations which are in themselves valid, unless the latter are so mixed up with the illegal and void, that it is impossible to sustain the one without giving effect to the other. 5 Paige, 318. Nor is this confined to devises; the prevailing doctrine of equity (and in many cases of our common and statute law also) is that when good and bad provisions are mixed in a deed, the good shall be saved so far as consistent with probable intent. By our statutes no appointment is void for excess, except as to the excess itself, and the same is the doctrine of the courts in England. The execution of a power may be good in part and bad in part, and the excess only will be void. The residue will be good when there is a complete execution of the power, and only a distinct and independent limitation unauthorizedly added, and the boundaries between the sound part and the excess are clearly distinguishable as in the case of a power to lease |