Jarvis v. Babcock

By the Court, Parker, J. The defendant seeks toVe protected against a decree for a specific performance of his contract, on the ground that the plaintiff has not a valid title, to the premises contracted to be sold to him. Whether this defence is available, depends entirely on the legal effect of the trust deed, executed on the 21st of December, 1830, by the plaintiff and Thomas B. Jarvis, to David Burhans and Solomon Bailey. If that deed was wholly void, so that no title passed under it, or any part of it, then the plaintiff remained the owner of the land, and has it in his power to convey a good title to the defendant. By the revised statutes, (2 R. S. 3d ed. 13, § 45,) uses and trusts, except as authorized and modified in that article, are abolished, and we must therefore look to the other provisions of the article, to see what trusts in regard to real estate are [144] permitted: These are found in the 55th section, which is as follows: “ Express trusts may be created for any or either of the following purposes: 1. To sell lands for the benefit of creditors. 2. To sell, mortgage, or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3. To receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter-term, subject to the rules prescribed in the first article of this title. 4. To receive the rents and profits of lands and to accumulate the same, for the purposes and within the limits prescribed in the first article of this title.” It is claimed that the first and secondly declared trusts can be sustained under the 3d subdivision of this section. But that subdivision only authorizes a trust to receive rents and apply them to the use of a person. Whereas the trusts attempted to be created provided that the grantors, while of sufficient capacity, and afterwards their families, should remain in possession and continue in the enjoyment of the rents and profits. Thé trustees are indeed required “ to take care that the rents and profits shall be properly applied,” but they are nowhere authorized to receive the rents and profits. It is not only necessary that the trustee should receive the rents and profits, but he is also required to make the application. (Hawley v. James, 16 Wend. 64, note.) The doctrine of trrists, as established by the revised statutes, has been very fully examined by our courts, and is jiow regarded as well established. (La Grange v. L’Amoureux, 1 Barb. Ch. Rep. 18. Boynton v. Hoyt, 1 Denio, 53. Gott v. Cook, 7 Paige, 521. Coster v. Lorillard, 14 Wend. 265.) I think it is clear that the first two trusts declared by the deed are in contravention of the statute, and therefore void. By the trust thirdly declared the trustees were, upon the death of Thomas B. Jarvis, to hold the premises granted, for the use of the wife and children of said Thomas, lawfully begotten by him and living at the time of his death, and to the issue of such as shall be then dead, in the manner, upon the terms, and subject to the charges mentioned, declared, and ap [145] pointed in and by the last will and testament of the said Thomas B. Jarvis, dated the eleventh day of December instant, and none other and different, and as if the whole of such will was herein inserted.” This will was still inoperative, the testator being yet living; but perhaps it might legally be referred to as a mere memorandum containing certain directions adopted in the trust deed. It has not, however, been shown, on either side, what were its contents or provisions. This third trust does not authorize the trustees to take possession or to receive the rents and profits; nor does it impose any active duty upon the trustees. It is not a power in trust, for they are not authorized to do any act. It is a mere formal trust, and by the last clause of the 47th section, no estate, legal or equitable, vested in the trustees. It is necessary, next, to consider whether, under this trust, any estate was conveyed to the persons for whose use the property was directed to be held. By section 47 every person who shall be entitled to the actual possession of lands and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest. If the persons for whose use that trust was declared took any estate under the grant it must have been by this section. But without stopping to inquire whether the 47th section is applicable to a future and contingent trust of this description, or whether any estate could pass under the third trust, after the intermediate estate had failed, there are other legal objections which seem to me insurmountable. If it is the meaning of this trust that the trustees were to hold for the use of the wife during her life, and afterwards for the children of Thomas, &c, then the conveyance is void, on the ground that the absolute power of alienation cannot be suspended by any condition or limitation whatever, beyond the continuance of more than two lives in being at the creation of the estate. (Sections 14, 15.) The attempt to suspend the power of alienation beyond the lives of Thomas and his wife, [146] would be a clear violation of the statute. But the contents of the will are not shown, and perhaps the language of the trust will bear a different construction from that above given: There is, however, another difficulty in giving validity to this part of the deed as a conveyance. It is indefinite and void for uncertainty. I have shown that no estate passed to the trustee. If any was conveyed by the grantors, it vested in the cestuis que trust, under the 47th section. In looking at that question, therefore, they are to be regarded as the parties to the conveyance. The grantees must be plainly described, capable of contracting and competent to take the estate. (8 John. Rep. 387. 2 John. Cas. 324. Shep. Touch. 236. Co. Litt. 3 a. Bunn v. Hinchman, 9 John. Rep. 73. 4 Kent’s Com. 462. 2 Black. Com. 296. Co. Litt. 35.) The grant was as much void for uncertainty as if it had been to the church wardens of a parish, or to the inhabitants of Dale, or to the commoners of such a waste. The estate attempted to be conveyed was contingent, as well as uncertain. Who should be parties to the deed, and what interest each should take, depended, among other things, on the number of children or grandchildren who should be living at the time of the death of Thomas. A reservation to persons incompetent to take, even in a deed to a third person, is void. (Bunn v. Hinchman, 9 John. 74. Salter v. Kiogly, Carth. 76. Whitlock’s case, 8 Co. 69.) This last objection, that the deed was void for uncertainty, is equally applicable to the fourth trust. No certain and defined interest is described in it. The quantity of interest is contingent, depending on the question who, of the persons described, should be living at the death of John 0. Jarvis; and till that event happened it could not be ascertained who were the parties to the deed. It seems to me clear that no estate passed either to the trustees or to the cestuis que. trust. On the whole I think the trust deed entirely void, and that the title remained in the grantors. It follows that the plaintiff is able to give a good title to the premises contracted to be sold, and is entitled to a decree for a specific performance of the agreement.