Read v. Robinson

The opinion of the Court was delivered by Gibson, C. J. The ordinary power of a chancellor extends no further than the execution of a trust sufficiently formed to put the legal title out of the grantor; or to the execution of an agreement for a trust founded on a valuable consideration. Such was the doctrine of Lord Eldon in Ex parte Pye, (18 Vez. 140); Ellison v. Ellison, (6 Vez. 662); and Pulvertoft v. Pulvertoft, (18 Vez. 99); and such too was the doctrine of Sir William Grant, in Antrobus v. Smith, (12 Vez. 39); and Sloane v. Cadogan, (Sugd. Vend. App. No. 26). According to Twelves v. Williams, (3 Whart. 485), equity would not execute this assignment as an agreement, because the creditors are volunteers; but the doctrine maintained by the masterly argument of Justice Ventris, in Thompson v. Leach, (2 Vent. 201), and eventually established by the decision of that case in the House of Lords,(is. that a common law conveyance put into the hands of an agent for transmission to the graptee, takes effect the instant it is parted with, and vests the title though the grantee be ignorant of the transaction ;}and that the rejection [332] of such a grant has the effect of revesting the title in the grantor, it would seem, by a species of remitter. On this ground a chancellor would support the trust before us as sufficiently complete in its creation. The difficulty is to comprehend how the remitter can take effect without displacing intermediate interests springing from the rejected deed; but the authorities conclusively prove that it may. Ventkis refers to Lord Coke’s solution (1 Inst. 356 b) of a difficulty started by Littleton, (Sect. 677), in regard to a husband’s disagreement to a conveyance back to a wife of her discontinued estate, which is held not to intercept the remitter of the wife to her former title; “ and the true reason,’’ said Ventkis, “is because she is in of a title paramount to the conveyance to which the disagreement relates.” But how does she get back to her paramount title ? If the husband’s disagreement to the conveyance from the discontinuee, sweeps the estate which passed by it clean out of her by relation to the date of the deed, there can be no wrongful estate in her from which she may be remitted to her rightful one; and that the remitter can nevertheless be accomplished in the mean time, proves that intermediate interests may fasten on the title which it is not in the power of the grantee’s disagreement to unclasp. And in accordance with this principle Thompson v. Leach was finally determined. A deed of surrender by tenant for life, to a person in remainder, was held to bar intermediate contingent remainders, though the deed was disagreed to by the grantee, because it had in the mean time united the particular estate to a remainder, which though posterior in the order of vesting in interests, thus became prior in time as to vesting in possession; and because the two estates being once reunited, could never afterwards be disjoined. Apply the doctrine to the case before us. (By the transmission of the deed for acceptance to the assignee, the title instantly passed at law and the trust took effect.) How then could the equitable interest of the creditors, who were the only persons beneficially interested, be devested by the disagreement of the assignee in this case, more than could the legal estate of the wife, or that of the remainder-man in the cases cited ? (Equity ever protects, where it can without disturbing a legal right, the interest of a cestui que trust from the acts of the trustee; and it would doubtless support the trust before us as being sufficiently created) But our statute would sustain it even if a chancellor would not. The Act of 1836 provides that the several courts having jurisdiction, shall have power to appoint assignees or trustees “ where any sole assignee or trustee shall re-nmtnce the trust, or ceüiae to act under or wholly execute the sarhe.” Now a trust depending for its existence on the assent of the trustee to the grant'in which it is declared, is, when renounced, in the very category defined in the first member of the clause; for it is a rule, to which there is said to be no exception, that there is no renunciation after accept [333] anee, and consequently after assent to the grant of the legal estate. In Chalmer v. Bradley, (1 Jac. & W. 68),^t was held that a trustee cannot renounce, having assented to the trust; and the same principle is to be found in Doyle v. Blake, (2 Sch. & L. 231), and Ried v. Truelove, (Amb. 417).) If, having assented to it, he refuse to act under it, or wholly execute it, he falls within the provision made by the second member of the clause. There is no middle ground between renunciation and acceptance; and part of the statute would be inoperative did it hot act on a case like the present. But to constitute renunciation, there must be an express rejection or a tacit refusal to act; for there can be no renunciation where the assignee is ignorant of the existence of the paper. Was he ignorant of it in this case? CThe instrument was put into the/ hands of Joseph Amies, to be handed, to Ward, who tendered it to the assignee, and it was rejected.; According to the Touchstone, page 75, the naked deposit of a sealed instrument for no declared purpose, is not a delivery of it; and it might perhaps not be a tender to the grantee within the statute, did it require one. But here there was a purpose declared; and when we find the depositary handing the paper to the person to whom it was sent by the assignor, and that person presenting it to the assignee, a presumption arises from the nature of the case, that the tender was made by authority communicated through some channel which does not appear. The statute, however, does not call for a tender by au-. thority : it is satisfied when there has been an express renunciation in fact, and for that reason the assignment ought to have gone to the jury. The objection to the recording is unfounded. It was certainly competent for a party interested in the trust, to take the necessary steps to have it executed. Judgment reversed, and procedendo awarded.