Bayard v. Colefax

WASHINGTON, Circuit Justice,

after stating the case, proceeded.

Upon the facts stated in the demurrer, the defendants’ counsel have raised the following objections to the plaintiff’s recovery:

1. That it does not appear that the lessor of the plaintiff, or those under whom he claims, was in possession of the premises at any time within twenty years prior to the bringing of this action, and consequently that his action is barred by the act of limitations of this state, passed in the year 1799, [Peo. 7; 23 Sess. Laws, 430.]

To this objection, it is a conclusive answer, that by tlie conveyance to the original ! proprietors Schuyler, Brockholst and Bayard, I the possession passed in like manner as if the grantees had taken actual possession, and that the trust deed of 1770 operated in like manner to vest the possession in the trustees. The law of this state, passed on i the 17th of March 1713, (Patterson’s Laws, i 0,) is express upon this subject. Independ- ! ent of this, the demuryer states that in 1772, | the trustees entered upon the land and took i actual possession. The possession then hav- ! ing once been in the trustees, the law pre- | sumes it to have continued in them, until an ouster of dispossession is shown by the other side. There is nothing stated in the demurrer which can be construed into a disturbance of the possession then shown to have existed in the trustees prior to the years 1S09 and 1810, when sales were made to certain persons under the act of 180G. But this was far short of twenty years prior to the bringing of this action, which was in 181S, and consequently the case is clear of this objection.

The next objection is, that the act of June 1780, having been repealed by that of the 18th of February 1813, the surviving trustee was thrown back upon the deed of 1770, which gave him no power to make partition of the land, or to execute conveyances to the cestui que trusts. Or if the act of 1786 was not repealed, then by force of its provisions, the trustees were not authorized to make partition and conveyances until after the bog was drained, the expenses paid, and the title of the several claimants under the original proprietors examined into and ascertained. Then these acts not having been performed, the deed to the lessor of the plaintiff ! passed no title to him. The view which I I take of this objection will render it unneces-I sary to examine the arguments of the coun- ! sel, on the one side to maintain, and on the | other to deny the validity of the repealing i law of 1813; because, if the defendants’ coun- ¡ sel be right in asserting its validity, it never- ■ theless does not follow, nor is it even eontend- : ed that the trust deed was not in as full operation after the repeal, as it was at and previous to the passage of the repealed law. It is clear that the title of the trustees under the deed of 1770 to the legal estate in this property, was not, and could not have been divested by the act of 1786; and that •no estate passed under that act to the trustees, which could impugn their former title, although it might operate as a statutory confirmation of it. This being the case, the right of the surviving trustee, clothed as he was with the legal estate in fee simple, to convey the same to whom, and in what manner he might think proper, cannot be questioned in a court of law, nor can the title of his grantee be impugned, unless it be by some person having a better legal title in himself to oppose to it. The defendants have shown no title, either legal or equitable; but did they even stand upon the high ground of cestui que trusts, they could not be permitted, in a court of law, to set up their equitable, against the legal estate of the trustee.

It is contended that the trustees had no authority, by the deed of 1770, to make -partition of the land, and to convey the same to those entitled to the equitable estate. Let this be granted; still they were the legal owners of the estate, subject to the trusts declared in the deed; and if none were declared, they held for the grantors by way of a resulting trust. If they have exercised powers not conferred upon them, and performed acts in violation of their duty as trustees, it is in a court of equity only that they can be called to answer, and it is there only that their errors, or mal-administration can be scrutinized and corrected. The reason is, that before that tribunal, an equitable title may be opposed to a legal one; besides which, there is no other tribunal which can so conveniently investigate the conduct of trustees, and administer an adequate remedy to the parties. If they have conveyed away the trust property in derogation of the rights of the cestui que trust, the purchaser, if he had notice of the trust, is treated in that court as a trustee, in relation to the property so purchased; but he is nevertheless considered as the legal owner of the estate, for the use of those entitled to the equitable title. The case is in no respect varied, if we should agree with the plaintiff’s counsel, that the act of 1786 was not repealed. Eor upon that supposition, Mr. Boudinot and his associates were constituted trustees for other purposes than those mentioned in the deed of 1770, but equally for the use of the grantors in that deed, and their representatives. I am aware of no distinction between a statutory trustee, and one who is so constituted by deed. Whether he be the one or the other, his legal title cannot, in a court of law, be questioned or opposed by an equitable claimant. In either case he is answerable to his cestui que trust for breaches of duty, before a court which places an equitable title upon as high ground as a legal one, and merely inquires which of the parties has the superior equity.

3. The last objection is formal. It occurred in the case of Jackson v. Woods, 5 Johns. 278, where it was decided, that when two or more persons holding distinct and separate possessions of the premises mentioned in the declaration of ejectment, are united in the same declaration, and jointly ester into the common rule, and plead; judgment may be given against them separately, if their separate possessions are found by the jury. With this opinion I concur; nor can I distinguish that from the present case, on the ground that the question there arose on a verdict, and here on a demurrer to evidence. The latter states that at the time of the service of the declaration, the defendants held their possessions in severalty, which is, in effect, the same as was found by the jury in the case referred to. It adds nothing to the objection in either case, that the particular parcels so' severally held are not stated in the demurrer, or found by the jury. The plaintiff is to execute the writ of possession at his peril, and must take care that no more is taken from each defendant than he is entitled to.

PENNIX GTON, District Judge.

The case turns on the validity of the deed to Stephen Bayard, the lessor of the plaintiff, dated in 1818. The authority for making that deed is derived, as the recitals in it set forth, from the deed’ of 1770, and also from the act of the first of June 1786. This act had been repealed about five years before the deed to Bayard was executed; and I cannot perceive any constitutional objection to the repealing act. No rights to third persons had been gained under the repealed act. I cannot consider that .act as any thing more or less than appointing the persons named in it commissioners, to perform towards this estate certain acts which it seems had not been done. The deed to Mr. Bayard then must rest on the authority of the deed of 1770. This, it is true, conveys a fee to Mr. E. Boudinot, and two other persons; in trust however to “to enable them to commence and prosecute suits, for the recovery of the land thereby conveyed; and to bring the same to an immediate settlement.” The conveyance to Mr. Bayard was no part of their duty, and appears very extraordinary at this time, nearly fifty years after the trust was created. But it is contended that the legal estate being in Mr. Boudinot, and he leaving the same to Mr. Bayard, it is now vested in him, and I incline to think that this must be so, and that a court of law cannot take notice of a departure of a trustee from a strict adherence to the trust. In such a case the grantee must be considered as a trustee, for the benefit of the cestui que trust. I am not however satisfied, that in case of a conveyance .fraudulently and .collusively obtained from a trustee, a court of law would be compelled to carry it into effect. But if this character had been intended to be stamped on this deed, it ought to have been put to the jury to find the fact, and not left to the court to infer fraud. Judgment against Cole-fax for such part of the premises as is in his possession, and against the defendant Schuyler for the part in his possession.