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less their right under the law is so clear as to control me in the disposition of this case, I shall not grant the order asked for, confirming the levy. I do not consider that I am so bound. It is true that the receiver in this case is a temporary receiver, and that he is little more than the custodian of the copartnership property. The title to the property is still vested in the copartners, and will remain in that condition until final judgment, and the appointment of a permanent receiver. But, upon the appointment of a permanent receiver, it will become his duty to realize upon the assets of the estate, and to pay the debts of the copartnership, in so far as the moneys in his hands will admit of the same. It is plain that there must be judgment for the plaintiff in the action, and that the receivership will be made permanent. The consent above referred to, signed by the defendants, that a receiver be appointed as prayed for in the complaint, is tantamount to a consent for judgment. It is therefore a matter of paramount importance that the assets of the copartnership should be protected and preserved by the temporary receiver, in order that the final judgment may be made effectual. The attaching creditors will fare as well as all of the other creditors of the concern, and have therefore no just reason to complain of the appointment of the receiver. The fact that they may be deprived of a preference which they have sought to obtain by attachment does not, as I have said, entitle them to any consideration on that ground. Courts of equity favor the equal distribution of the assets of insolvent estates, and, as the principle is a just and wholesome one, attempts to secure preference by attachment after the court has assumed control over the estate should not be sanctioned.

The attorney for the attaching creditors appeals to the case of Webster v. Lawrence, 47 Hun, 565, in support of his right to make the levy in question. The facts in that case, however, are widely different from those before me. In that case a general assignment for the benefit of creditors was made by the firm of H. Webster & Co. Subsequently, Horace Webster, one of said firm, brought an action to obtain a partnership dissolution and accounting, and obtained the appointment of a temporary receiver. The action was based on an allegation that the general assignment was fraudulent. A creditor sued out an attachment against the firm, and sought to levy on the property which had passed from the assignees into the hands of the receiver, and his claim to make the levy in question was based upon the contention that the general assignment was fraudulent, as against creditors. It is plain, therefore, that the ultimate success of the attaching creditor depended upon his ability to establish the voidness of the general assignment; and as the receiver was appointed in an action between the copartners, brought for the purpose of testing the validity of the assignment, the rights of the attaching creditor, which could attach only in case the general assignment was void, would naturally be superior to the claims of the receiver. The question in the case arose on a motion, on notice, on the part of the attaching creditor, made in the action in which the receiver was appointed, that the

sheriff might be allowed to levy the attachment in question against the property of H. Webster & Co. in the hands of the receiver. Under the circumstances of that case, which were somewhat peculiar, the court held that there was no reason why the plaintiff in the attachment should not be at liberty to pursue his rights, notwithstanding such property had been placed in the custody of the court. The case, as reported, unfortunately, is very meager in its statement of facts. Those which I have stated I have obtained from a copy of the brief of the counsel for the attaching creditor, which was submitted to me upon the argument. In the case at bar, although the attaching creditors have made some pretense of claim that the action is a collusive one, the evidence before me utterly fails to substantiate it; and the reason for granting the leave to levy which existed in the case of Webster v. Lawrence, namely, that the attaching creditor should have the right to test the title to the property in the manner provided by law, finds no counterpart in this case. I do not consider, therefore, that that case is any authority for the granting of the application now made for leave to levy on the property in the hands of the receiver. If the attaching creditors in this case fear that proceedings may be taken in the action, such as a discontinuance, or any other course that would be prejudicial to them as creditors, they are at liberty to move to be made parties to the action, when the question as to the propriety of admitting them will be determined by the court in their favor, if the facts presented by them are found to justify the exercise of the discretion of the court in that regard; and if the receivership should be dissolved, and the property restored to the copartners. the court would doubtless adjudge that the attaching creditors had a lien or charge upon the fund, by virtue of the issuing of the attachments in question, which would be suitably provided for before the property was returned to the copartners. Of course, upon the facts of the case presented to me, it is exceedingly improbable that there will be any such outcome of this litigation; but, while it is improbable, it is still possible, and the fact of its possibility may be a sufficient justification for the bringing in of these attaching creditors as parties defendant in the action.

For the reasons which I have stated, the motion to vacate the order made by Mr. Justice Brown should be granted, with costs, the levy made thereunder by the sheriff of Kings county set aside, and the sheriff directed to restore the property in question to the receiver. The motions made by the attorney for the attaching creditors to confirm said order are denied, with costs.

(12 Misc. Rep. 171.)

HATT v. HAGAMAN et al.

(Supreme Court, Special Term, Albany County. April 2, 1895.). TRUSTS-POWERS OF TRUSTEE.

A provision in a trust deed that the trustee may sell the trust property, and invest the proceeds in productive real estate, "or in such other safe and permanent securities as he may deem proper," does not authorize

him to sell property purchased by his predecessor as a reinvestment of the proceeds of the sale of property belonging to the trust estate. Action by Samuel S. Hatt against William Hagaman and another for specific performance. Complaint dismissed.

Mead & Hatt, for plaintiff.

Ward & Cameron, for defendants.

HERRICK, J. On the 1st day of March, 1856, William Smith, of the city and county of Albany, in this state, executed and delivered to Otis Allen a deed of all the property, both real and personal, which had theretofore been assigned to him by one Thomas S. Bleeker, in trust to pay the debts of Thomas S. Bleeker, the expenses attending the execution of the trust, the necessary repairs to buildings and fixtures, the insurance, and also the assessments and taxes, after the payment of which the income of such estate was to be paid to the said Thomas S. Bleeker, during his natural life; upon the death of the said Thomas S. Bleeker, the said trustee, or his successors, to convey all the property then remaining in his hands to such person or persons as should be designated by the said Thomas S. Bleeker in his last will and testament, and, in default of any such designation, then to convey the same to the heirs at law and next of kin of the said Thomas S. Bleeker, in the same manner as if the said Thomas S. Bleeker had died intestate, seised of the property so conveyed in trust. It was further provided in the said trust deed as follows:

"And the said party of the second part is also hereby authorized and empowered at any time to grant, sell, assign, and transfer the said real and personal estate so held by him in trust, or any part thereof, at either public or private sale, and on such terms, conditions, and credits as he may deem expedient, and to execute all necessary deeds, conveyances, assignments, and transfers to perfect any such sale or sales, and to apply the proceeds of such sales and the capital of the personal estate which may at any time be in his hands to the payment of the debts which he is herein before authorized to pay. and to reinvest the surplus proceeds arising from any such sale or sales, and the capital of any part of the said personal estate which may at any time be in his hands, in the purchase of good, productive real estate situate in the state of New York, or in good bonds and mortgages on unincumbered, productive real estate in this state, or in such other safe and permanent securities as he may consider proper."

The plaintiff herein subsequently became the trustee and successor of the said Otis Allen, under such trust deed. On the 14th day of February, 1895, the plaintiff entered into a written contract with the defendants for the sale to them of a certain house and lot, situate in the city of Albany, which house and lot had been acquired by one of the predecessors of said plaintiff as trustee under said trust deed, the same being purchased as a reinvestment of the surplus proceeds arising from a sale or sales of property belonging to the trust estate. The defendants agreed to pur chase such property, and pay therefor the sum of $3,200, on or about the 21st day of February, 1895. Subsequent to the execu tion of such contract, the defendants refused the performance thereof of their part, upon the ground that the plaintiff had no

power or authority to sell such property, and could not give a legal title thereto, and thereupon the plaintiff brought this action for a specific performance by the defendants of their contract to purchase the property in question. The facts are undisputed, and are substantially as herein stated.

The court will not decree a specific performance upon the part of the vendee of a contract to purchase real estate where there is doubt of the ability of the vendor to convey a good, marketable title to the property in question. Every purchaser of real estate is entitled to a marketable title, free from incumbrances and defects, and he will not be compelled to take property the possession of which he may be compelled to defend by litigation. The title should be such that, if he wishes to sell, he may be reasonably sure that no flaw or doubt will arise to disturb its market value. Shriver v. Shriver, 86 N. Y. 575; Vought v. Williams, 120 N. Y. 253, 24 N. E. 195; Irving v. Campbell, 121 N. Y. 353, 24 N. E. 821. In this case the power of sale is expressly granted to the trustee, but it is in terms confined to the property conveyed to the trus tee. It is granted for a double purpose,-paying debts, and making investments; and that power seems to have been exercised already, it appearing in the plaintiff's complaint that the property in question here was procured by an investment of the proceeds of a sale or sales of the trust property. There is no express authority for a sale of any after-acquired property. The court will imply those powers which are necessary to carry out the purposes of the trust; no more. There are no purposes of the trust alleged in the plaintiff's complaint, nor can I see any in reading the trust deed, which render it necessary to sell the property in question here; neither do I think that the power to sell the property in question can be inferred from the power of the sale expressly given in the trust deed. It will be observed that the trustee is directed, after paying the debts, to reinvest the surplus proceeds arising from any sale or sales in the purchase of good, productive real estate, or in bonds and mortgages, "or in such other safe and permanent securities as he may consider proper." It seems to me that, instead of inferring from this the right to sell property in which the proceeds of such sales had been invested, these words are rather a restriction upon the continued power to sell, of the trustee, and that the grantor contemplated permanent investments, to continue during the life of the trust estate. The question, at least, is a serious one, not free from doubt, and one which cannot but affect the market value of the property in question, and the title offered to the defendants is therefore not one that a court of equity should compel them to accept.

The complaint should therefore be dismissed, with costs.

LYLE et al. v. LITTLE et al.

(Supreme Court, General Term, First Department. January 18, 1895.) ADJOINING LANDOWNERS-OVERHANGING WALL.

Where the owner of a lot erects a wall the foundation of which is wholly on his lot, but a part of which overhangs an adjoining lot, the adjoining owner will not be enjoined from removing so much of the wall as overhangs.

Appeal from special term, New York county.

Action by John S. Lyle and another against Joseph J. Little and others to enjoin defendants from removing parts of the northerly wall of plaintiffs' building. A preliminary injunction was granted, and, on a motion to vacate the same, the following order was entered: "It is ordered that the said injunction herein before granted be, and the same is hereby, vacated and annulled; and it is further ordered that the defendants, and each of them, and their and his servants, agents, and employés, be, and they hereby are, restrained and enjoined during the pendency of this action, or until the further order of the court, from in any manner interfering with, removing, or cutting away any part or portion of the wall on the northerly side of the building known as 'Number 471 Broadway and 44 Mercer Street,' in the city of New York, saving and excepting so much of said wall as extends, overhangs, bulges, or protrudes to the northward of the line between the premises on which said building stands and the premises adjoining on the north, or to the northward of points vertically over said line. And this injunction shall not in any way be taken as restraining or enjoining the defendants, or either of them, or any one on their behalf, from cutting away or removing such part or parts of said wall, if any, as so extend, overhang, bulge, or protrude to the northward of said line or of points vertically above it." From the portion of said order which reads as follows: "Saving and excepting so much of said wall as extends, overhangs, bulges, or protrudes to the northward of the line between the premises on which said building stands and the premises adjoining on the north, or to the northward of points vertically over said line;" and the portion which reads: "And this injunction will not in any way be taken as restraining or enjoining the defendants, or any one on their behalf, from cutting away or removing such part or parts of said wall as so extend, overhang, bulge, or protrude to the northward of said line or of points vertically above it,"-plaintiffs appeal. Affirmed.

The opinion of Mr. Justice PATTERSON at special term is as follows:

It is stated in the complaint in this action that the wall, interference with which on the part of the defendants is enjoined by the temporary injunction, stands altogether upon the plaintiffs' land; and, if such is the fact, the injunction must be continued. The question of title to the two inches of ground, which it is said the defendants intend to occupy by their wall, cannot be determined in this action. The answering affidavits state, however, that the defendants have no intention of building beyond their own line; but, to prevent any further misunderstanding and dispute with reference to that subject, the in

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