Darling v. Rogers.

for twenty-one years, and the lease be made for twenty-six See Adams v. Adams, Cowp. 657, and other authorities cited in 4 Kent's Comm. 346, note e.

years.

In the present case, there was a trust created to sell land, or part of it, if the assignees should deem it most advisable; also to mortgage the same or any part, if they deem that most advisable. If the latter power was illegal or doubtful, this very legal impediment would shew that they could not deem it advisable. But at any rate, the whole discretion and authority to sell was given, and it cannot be imagined that if the assignor had been advised of a legal doubt as to the second authority, to mortgage, and had been induced to strike out that clause, it would have made the slightest change in his intention. One authority is in no manner complicated with the other, in such wise that the valid cannot be sustained without giving effect to the other. The better trust here, then, must not be disturbed, though the other be bad, which, for reasons above stated, I think it is

not.

If there is any reason to apprehend, as was argued by counsel, that this assignment would place property by mortgage beyond the reach of creditors, by creating a trust estate in the hands of assignees out of their reach, and operating to delay and hinder the collection of their just debts; such abuse might be reached and prevented by an injunction without restraining the beneficial operation of the trust to sell. If we should then grant the second alternative trust to be void, yet 1 hold that a legal estate has been vested under the statute by the valid part.

The only remaining question would then be, whether the remaining trust, although void as such, be not still valid and rightly executed as a power in trust, whilst the legal estate is in the same persons for another object? The impression made upon my mind on the argument, was in favor of that conclusion. But I decline giving any deliberate and decided opinion on the subject, for several reasons: 'The chancellor has declined any decision on that head; its decision may not be necessary for the due execution of the trust; the point itself, though argued before us, was not the

1

Darling v. Rogers.

prominent one in the cause; nor, according to my understanding of the law, at all necessary for its decision. Under such circumstaces, I prefer to avoid that point, for I should be sorry to see it settled without the greatest deliberation, and on the most solemn argument, as it involves the right construction of our revised statute of powers, which the learning and talent exhibited by the revisers in amending and explaining the former adjudicated doctrines, and in introducing new rules for the creation, interpretation and execution of powers, have not freed from the obscurities and intricacies inherent in the subject itself.

I have only to add, that regarding the questions involved in this cause as of serious interest to our commercial community, I have endeavored to examine them on general principles of the construction of our statute, with as little dependence upon the peculiar character of the cause as might be. But it gives me greater confidence in my own general legal conclusions, when I find that they go to confirm an assignment unquestionably honest in its design, and made for just and beneficial purposes.

If either of my conclusions above stated are correct, the chancellor's decree must fall, entirely, as the other directions and provisions, though certainly the most prudent and equitable that could be made on his construction of the law, depend entirely upon that construction. I think that the estate vests in the assignees. If so, the chancellor's decree should be reversed entirely, unless in the opinion of this court it be considered that the assignees should be restrained from mortgaging the property, either altogether or for specific purposes of paying off judgments or mortgages. I am for reversal in toto.

On the question being put, shall this decree be reversed? All the members of the court present who had heard the argument of the case, answered in the affirmative. Whereupon the decretal order of the chancellor was reversed, and a resolution adopted, which was incorporated in the decree, in these words: "It is further ordered, adjudged and decreed, that an assignment of real estate in trust, to VOL. XXII.

63

Jackson v. Edwards.

sell or mortgage for the benefit of creditors at large, is valid for the purpose of selling, though void for the purpose of mortgaging; also, that if any of the creditors have judgments, mortgages or other charges on such estate, the trust to mortgage is valid so far as it seeks to pay or secure the same, or to mortgage a part of such assigned estate, to pay such an incumbrance on such part, though it be void for the purpose of paying or securing creditors at large."

JACKSON and wife, appellants, and EDWARDS and others, respondents.

Where real estate is sold by a master under a decree of the court of chancery in a partition suit, and there be unreasonable delay in perfecting the title, an order compelling the purchaser to take the title and perfect the purchase will not be made.

The delay was nearly ten months; and time, here, was held to be of the essence of the contract.

Whether the inchoate right of dower of the wife of a tenant in common in

lands ordered to be sold in a partition suit, though she be made a party to the suit, is affected under the provisions of our statute by a sale in pursuance of such order, so as to bar a recovery in an action of dower upon the death of the husband, quere.*

Where an estate was granted during the joint lives of a husband and wife, with power to the wife of appointing the fee either by deed or will; and if she died before her husband, without executing the power, the estate to go to her issue; and in default of issue, to her right heirs—she taking the absolute fee if she survived her husband: IT WAS HELD, that the wife

*When the question was before the VICE CHANCELLOR of the first cir. cuit, he held that the inchoate right of dower would not be barred by a sale in partition, although the wife was made a party to the suit.The CHANCELLOR however, on appeal, held that such right would be barred, and that the interest of the wife may be protected by the court by an investment of a portion of the proceeds of the sale, equal to the value of her interest in the land. In the court for the correction of errors but two opinions were delivered, and upon this question, the members of the court who delivered the same differ: Judge BRONSON doubts whether the right of the wife would be barred, and questions the authority of the courts to direct investments for her indemnity; whilst on the other hand, Senator VERPLANCK fully concurs in the views of the chancellor.

Jackson v. Edwards.

had a general and beneficial power, within the provisions of the statute, of appointing the fee; that a master's sale under a decree in a partition suit would not destroy the contingent interests of her children, and that the only mode of conveying the estate freed from the interests of the children was by deed duly acknowledged, or by last will and testament.

APPEAL from chancery. The appeal in this case grew out of a motion originally made before the vice chancellor of the first circuit, to compel a purchaser at a master's sale to complete his purchase of certain lots in the city of NewYork, he refusing to do so upon the allegation of defect of title. The order for the sale of the property was made in a partition suit prosecuted in the court of chancery. The bill for partition was filed by Henry Jackson and Maria his wife, and the defendants in the suit were Benjamin B. Edwards and Nancy his wife, David S. Jackson and Sarah his wife, John O. Fay and Catharine his wife, Moses W. S. Jackson, and John J. H. Jackson. The sale took place. 15th February, 1837, and John M. Bloodgood, amongst others, was a purchaser, two lots being struck off to him at the sum of $6000. The terms of sale were as follows: ten per cent. of the purchase money to be paid down; thirty per cent. to be paid on the first day of March following the sale, or as soon thereafter as the decree should be enrolled; and sixty per cent. to be secured by bond and mortgage, to be paid within three years, with interest. The master's report of the sale was confirmed on the 14th of March, 1837. On the 7th April, 1837, a deed, executed by the master in pursuance of the sale, was tendered to Bloodgood, and evidence of the enrolment of the decree exhibited to him; and performance on his part of the terms of the sale demanded, which he refused, alleging that the deed of the master would not confer a perfect title. One difficulty in respect to the title grew out of the conveyance by which the estate of Mrs. Edwards was granted to her. It was a deed executed to her and her husband by Henry Jackson on the 6th July, 1835, which conveyed one third of a certain share of property to her husband during his life, with a right to raise $5000 out of the remaining two thirds; and all the residue of the share was conveyed to her during the joint

Jackson v. Edwards.

lives of herself and husband, with a power to her of appointing the fee, either by deed or will. If she died before her husband without executing the power, the estate was limited to her issue, and in default of issue, to her right heirs, and if she survived her husband, she took the absolute fee. Mrs. Edwards, however, in her answer to the bill, had consented to a partition or sale, if the same should become necessary, and in her own hand-writing had endorsed her approval upon the draft of the decree ordering a sale. On the 17th April, 1837, the vice chancellor made an order of reference to a master to hear and examine the purchaser's objections to the title. Previous, however, to the hearing before the master, the vice-chancellor on the petition of the complainants made another order on the 27th November, 1837, directing Mrs. Edwards to execute a deed to the purchaser, cutting off the contingent limitations which deed was accordingly executed by her on the 22d December, 1837. On the 8th January, 1838, the master, in pursuance of the order of reference to him, reported a number of objections to the title as presented by the counsel for the purchaser, and amongst others, the following: I. That the estate and interest of Mrs. Edwards is derived and held under certain indentures, (setting them out,) and that under them she doth not hold an estate in fee simple in the premises, but her estate is subject to certain powers, remainders and conditions in favor of persons not parties to the suit in partition; and II. That the femes covert, parties to the partition, are not precluded of their estates and claims in and to the premises. In respect to which objections, he expressed the opinion, that a good title to the premises would pass to the purchaser under the proceedings in the partition suit, and by virtue of the conveyance excuted by Mrs. Edwards on the 22d December, 1837. The master further reported, that on the hearing before him, the purchaser further objected: I. That in determining upon the validity of his objections formerly taken, the master ought not to take into consideration the deed of Mrs. Edwards, or permit the complainants after the time which had elapsed since the sale, to avail themselves of any