Rogers v. Benson

The Chancellor. 1, The children of Mary Houstoun, have a valid title to the mortgaged premi-es under the deed of trust of the 6th of June, 1800. That deed was founded on a valuable consideration, and there is nothing jn the case to impeach its validity. It referred, by way of recital, to the deed of Nicholas Bayard to William Houstoun and Mary his wife,, of the date of the 8th of Decem-Ber, 1797, for one equal undivided fifth part of his estate, [437] and to the partition deed of the date of the 27th of December, 1804, in which the premises contained in the trust deed were released to Houstoun and his wife, in fee, by the other tei.ants in common. The conveyance, on its fare, purported to be made in consideration of the trusts declared, and wlrch were, that the defendant Benson should sell the whole or such parts as might be necessary, of the estate thereby conveyed to him, to pay the debts of William Houstoun then due or contracted, and to hold the residue of the estate, if any, in trust for the wife and her heirs, in the manner particularly described. This, then, was a conveyance by the wife and her husband of their joint estate, for the meritorious purpose of paying his debts, and of settling the surplus upon her and her children. The husband and wife, in this case werenotp.operly joint tenants or tenants in common, for they were but one person in law, and could not lake by moieties. They were both seized of the entiiety, and neither could sell without the consent of the other, and the survivor would take the whole. The same words of conveyance, which could make'wo other persons joints tenants, will make the husband and wife tenants of the entirety. This is a nice distinction laid down in the old books., and which has continued to be law to this day ; and the special provision in our statute, that no estate in joint tenancy shall be held under any grant or conveyance, unless the premises were expressly declared to pass, notin tenancy in common, but in joint tenancy, does not reach this case, for the estate of the husband and wife is not a joint tenancy. (Litt. s. 291. 665. Co. Litt. 187. b. Bro. Abr. tit. cui in vita, pl. 8. Back v. Andrew, 2 Vern. 120. Green v. King, 2 Black Rep. 1211. Jackson v. Stevens, 16 Johns. Rep. 110.) The case of Ward v. Shallet, (2 Vesey, 16.) is very much in point, in respect to the consideration and validity of this deed. The wife, in that case, had a contingent interest un [438] der a bond given by the husband on the marriage. She had also the lease of an office left her by her father’s will. She agreed, in consideration of settling part of the money arising from the sale of the office, for her separate use, during her husband’s life, and "afterwards for her children, to part with her contingent interest in the bond. The husband became a bankrupt, and his assignees endeavoured, by bill, to subject her separate estate. But Lord Hardwicke held the settlement to be good, and the deed valid against creditors, for it had a sufficient' consideration to support it, and this was her parting with her contingent interest under the bond, which may be a consideration as well as a certain interest. The consideration takes it out of the statute of Eliz. as to creditors, “ to bring it within which, it must be proved, he was indebted at the time of the conveyance, and the contrary rather appears here.” The bill was dismissed as far as it sought to impeach the deed. But Lord Eldon, in the case of Lady Arundell v. Phipps and Taunton, (10 Vesey, 139.) went further, and held that a purchase by a married woman from her husband, through the medium of trustees, for her separate use, might be sustained against creditors, if bona fide, and for a valuable consideration, though the husband be indebted at the time. In the present case, the wife had a present vested interest, equal to that of her husband in the estate conveyed, and a contingent right to the whole, by survivorship; and shejoined in a conveyance of the whole to pay all the debts of her husband, in consideration that the residue should be settled upon her in fee. The whole estate came to her from her father; and is it possible for a conveyance to be upheld by a more meritorious and valuable consideration ? The conveyance is impeached, not by any then existing creditor, (for they were all provided for,) but by a creditor of the husband, for a debt accruing years afterwards, and after the death of the wife. [439] There was no existing law, that required this trust deed to be put upon record; and there are no circumstances showing that the conveyance was intended to be a secret transaction. It was as notorious as any other ordinary family settlement, and it was known to Judge Livingston, in 1805. The subsequent mortgagee, therefore, took a mortgage, from the husband of the trust lands, at his peril, and under the same peril that any other purchaser buys. The mortgaged premises did not, at the time, belong to the husband, but to the infant children of his deceased wife; and their vested interest could not be affected by any act of their father ; nor have the plaintiffs shown any right to come in as creditors under that trust deed. 2. There does not appear to be any well-founded pretence to charge the defendant B., in his individual person, or property, with the payment of the mortgage debt or any part of it0 He was not guilty of any fraud, by the opinion which he subscribed, as counsel, on the 14th of May, 1808. The opinion was intended to refer to the lands specified in the partition deed of the 32d of July, 1806, and referred to in the act of the 4th oí March, 1808, confirming that partition, and those lands were on!y; as the act says, “ parcel of the lands heretofore of the said Nicholas Bayaid,” and were not included in the trust deed. It is true, the case as stated and which preceded the opinion, was broad enough to include the trust property, and the opinion might seem to referió the xvhole property derived to Houston n, and his wife, from her father. The general description, and the want of precision in marking the property to which the opinion was intended to apply, has probably led to this controversy, and to the attempt to charge the trustee xvith fraud. But the case affords no reasonable ground for any inference of fraud. It is impossible that the defendant could have seriously meant that Houstoun might lawfully traffic with the property then held by the defendant in trust for his children; and to [440] suppose that he meant, hy that opinion, to afford Houstomt the means to cheat, whenever he could find a suitable victim, would be most extravagant and groundless. The defendant had no motive for such an act of depravity ; and the charge is repelled by the intrinsic circumstances of the case, as well as by the unimpeachable character of the party. The defendant B. was not responsible for the misapplication, by Houstoun, of his opinion to fraudulent purposes. The statement of the case to which the opinion was annexed, was carelessly drawn, and left to be applied to property to which it was not intended. But this was the act of the defendant as counsel, and not as trustee, and it would be unjust (o charge him, as trustee, because his opinion, given in the way of his profession, was fraudulently misapplied by H. about seven months after it was given, and without the knowledge or consent of the defendant. The charge could not, in any case, affect the vested rights of the children of Mrs. Houstouni nor can I consent to make the defendant personally responsible, because I believe, from the intrinsic circumstances of the case, from the answer, from the want of connection in point ol time and reference between the opinion and the loan, from the absence of proof, and from the character of the defendant, that no fraud was intended, and that the opinion had, in fact, reference to the twenty-one lots contained in the second partition deed, and not to tho. e in the trust deed. The bill must, consequently, be dismissed without costs. Decree accordingly.