Brennan v. . Willson , 4 Abb. N. Cas. 279 ( 1877 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] By the assignment of the 2d of July, 1875, and the acceptance of the trust by the defendants and Trimble the assignees named therein, the property real and personal of the assignors, vested in the assignees in trust for the creditors. The title did not remain in the assignors, nor was it in abeyance awaiting the giving of security by the assignees as required by the statute, or the performance of any condition subsequent to the assignment. The creditors of the assignors acquired an interest in the assigned estate, and could enforce the execution of the trust. The statute (chap. 348 of the Laws of 1860) regulating voluntary assignments for the benefit of creditors, does not make the giving of the statutory security by the assignees a condition precedent to the vesting of the estate in the trustees, nor does the failure to give the security within the time limited invalidate the transfer and restore the title of the assigned property to the assignor. This has been so held by this court and by the Commission of Appeals. (Thrasher v.Bentley, 59 N.Y., 649; Syracuse, etc. R.R. Co. v. Collins, 57 id., 641.) The question was considered by Judge GROVER inJuliand v. Rathbone (39 N.Y., 375), but it was not necessary to decide it as the judgment was necessarily as given, whether the court held the one way or the other on the point now under consideration. The remarks of the learned judge upon that branch of the case did not necessarily embody the views of the court and may be regarded as obiter, and the judgment as passing upon the other ground suggested by him. The three assignees having accepted the trust, the effect of the acceptance was conclusive, and they could not collectively or severally afterwards, by renunciation or disclaimer, throw off or repudiate the duties and responsibilities of the office, or divest themselves of the title once vested in them. (Hill on Trustees, 221, and cases cited in note b; Shepherd v. McEvers, 4 J. Ch. R., 136; Cruger v.Halliday, 11 Paige, 314.) Trimble, with the defendants, formally and in writing, accepted the trust, agreeing faithfully to perform the same and thus made himself a party to the deed. This was a deliberate and unequivocal act, perfecting the transaction and making the transfer irrevocable. (Hill on Trustees, 219, and note 1. Had Trimble disclaimed the trust by refusing to sign the written acceptance with the defendants, repudiating it when tendered, and doing no act in execution of the trust, or inconsistent with the disclaimer, no title to the estate would have vested in him and the deed would not have taken effect. But having accepted, he could only be relieved of the trust and divested of the estate by the order of a court of competent jurisdiction, and this might have been done upon his resignation or his removal from office for a non-compliance with the statute. (Briggs v. Davis,20 N.Y. 15; S.C., 21; id., 574.)

A trustee having once accepted the trust in any manner, a purchaser cannot safely dispense with his concurrence in a sale of the trust estate, notwithstanding he may have attempted to disclaim, and although he may have released his estate to his co-trustees. (Crewe v. Dicken, 4 Ves., 97.) All the trustees must unite in a disposal of the trust property and a deed by two, while a third is living, is not valid. The trustees take as joint-tenants, and must all unite in the execution of the trust, and especially in a deed of lands. (Story Eq. Jur., § 1280;Brinckerhoff v. Wemple, 1 Wend., 470; Thatcher v. Candee, 4 Abb. Ct. of App. Dec. 387.) By the first assignment, Duke and More, the assignors, were divested of all title, and nothing passed under the second assignment to the defendants, alone; or by their deed to the plaintiffs. (Marvin v. Smith,46 N.Y., 571.) The assignee Trimble did not at any time "enter into a bond," with or without sureties for the faithful discharge of his duties as assignee. The bond given was by the defendants with sureties for the performance by them of their duties. It was in no sense a bond of or for Trimble, and the sureties would not have been liable for his misfeasance or nonfeasance in the execution of the trust. His name as principal as well as one of the assignees, for whose good conduct the sureties became sponsors, was erased from the bond, and upon oyer of the bond this would have appeared. The finding of the learned judge upon the trial, that the defendants on the 31st of July, 1875, executed on behalf of the three assignees a bond under the act with sureties, is against the evidence and inconsistent with the previous finding, that Trimble had on the 13th of July renounced the trust and refused to act as one of the assignees.

Trimble was not a party to the sale to the plaintiffs, but did unite in the deed tendered them. This act was a nullity, as it was forbidden by law. Before giving the bond with sureties as required, and without giving such bond, he had no power or authority to sell, dispose of, or convert to the purposes of the trust any of the assigned property. This is expressly declared by section three of the statute before quoted, and the prohibition is absolute and cannot be disregarded by him or by the courts, and the cestuis que trust under the assignment, or trustees who may succeed him, may inquire into the validity and legality of his acts under the trust deed. His trust was a dry trust, merely to take possession and hold the property until he should become qualified and have authority under the statute to dispose of it, and convert it to the purposes of the trust. As he could not lawfully unite in the deed, it was in effect, but the deed of the defendants, two of the three trustees, and did not make a title to the premises which the plaintiffs were bound to or could safely accept.

The order granting a new trial must be affirmed, and judgment absolute for the plaintiffs.

All concur.

Order affirmed.